United States District Court, S.D. New York
OPINION & ORDER
SIDNEY H. STEIN, District Judge.
Mashud Parves Rana brings this action against his former employers, Monirul Islam and Fahima Tahsina Prova, alleging violations of the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. § 1589 et seq., the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and the New York State Labor Law, N.Y. Labor Law § 190 et seq. Rana also asserts New York state law claims for breach of contract, fraudulent misrepresentation, unjust enrichment, quantum meruit, conversion, trespass to chattels, false imprisonment, and assault and battery.
Defendants have moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Rana's fraudulent misrepresentation claim for failure to state a claim upon which relief can be granted. They also move to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), contending that both defendants are immune from this action by virtue of consular immunity. Finally, defendants also move to dismiss the complaint for insufficient service of process. See Fed.R.Civ.P. 12(b)(5).
The Court finds (1) that Rana has pled his fraudulent misrepresentation claim with sufficient specificity; (2) that defendants are not immune from this suit because their employment and supervision of Rana were not consular functions; and (3) that even if defendants' attempts at service were insufficient, the Court need not dismiss the suit because proper service may still be obtained. Accordingly, defendants' motion to dismiss the complaint is denied.
Finally, the Court orders service pursuant to Fed.R.Civ.P. 4(f)(3) upon the attorneys who represent defendants in this litigation.
For purposes of this motion, the Court assumes as true all facts alleged in the complaint.
Rana is a citizen of Bangladesh. (Compl. ¶ 8.) He was admitted to the United States pursuant to an A-3 Visa ( id. ¶ 9) and served as a domestic worker in defendants' household in New York City for almost nineteen months ( id. ¶¶ 1, 10, 43).
Defendant Islam served as Consul General of the Consulate General of Bangladesh in New York City from September 5, 2012 to March 23, 2014. (Aff. of Monirul Islam dated May 14, 2014 ("Islam Aff.") ¶ 5.) Since March 24, 2014, he and his wife, defendant Prova, have resided in Morocco ( id. ¶¶ 3-4), where defendant Islam began serving as Ambassador of Bangladesh to Morocco on March 31, 2014 ( id. ¶ 2).
Rana alleges that, in the summer of 2012, defendants "knowingly and willfully lured [him] from Bangladesh" to the United States with various promises, including that (1) defendants "would pay him $3, 000 per month, " (2) Rana "would have some free time to himself every day" and "some days off, " and (3) defendants "would renew his visa before it expired." (Compl. ¶¶ 2, 28, 34-35.) Rana accepted these terms ( id. ¶ 35), and "[o]n or about September 11, 2012, [he] flew to the United States with defendant Prova and her son" ( id. ¶ 38).
Rana alleges that upon his arrival in the United States, defendants "obtained [his] forced labor and involuntary services" through "physical threats, coercion, isolation, physical restraint, physical force, [and] threats to [his] life." ( Id. ¶ 39.) He alleges that "[d]efendants maintained possession of [his] passport and immigration-related documents" throughout the period of his employment. ( Id. ¶ 47.) According to Rana, Islam warned Rana "that if he left the apartment, the police would find him and kill him because Mr. Rana did not have a passport." ( Id. ¶ 48.) Rana alleges that "[d]efendants informed [him] that his visa had expired" in or about June 2013, and "Islam used this information as an opportunity to repeat" his warnings about "what would happen if Mr. Rana escaped." ( Id. ¶ 61.) Islam also allegedly threatened to "beat him" and "kill  Rana himself" if Rana left the apartment ( id. ¶¶ 45, 48) and on two occasions was "physically violent" toward Rana ( id. ¶¶ 63-64). Rana further alleges that he was "not allowed to talk to anyone outside the house" or to "make phone calls." ( Id. ¶¶ 57, 59.)
According to Rana, defendants "never paid [him] a single dollar of the promised wages of $3, 000 per month." ( Id. ¶ 53.) When Rana asked defendants why they failed to pay him, Islam allegedly struck Rana "on [the] back of the head" and told him, "I brought you to America, that is enough.'" ( Id. ¶ 63.) Rana alleges that defendants forced him to work from sixteen to twenty hours a day ( see id. ¶¶ 40-41) and that he "never had a day off" during the almost nineteen months he worked for Islam and Prova ( id. ¶ 52). His duties included "cook[ing] all meals from scratch, iron[ing] clothes, wash[ing] clothes by hand, watch[ing] Defendants' eleven-year-old son, and clean[ing] the entire apartment daily." ( Id. ¶ 40.) Additionally, when defendants hosted parties in their home, Rana had to "cook for all the guests, serve, and clean up after the guests left." ( Id. ¶ 41.) Defendants also demanded that Rana "cook food for events at the Bangladesh Consulate and required that he work as a busboy and server at monthly community events at the Bangladesh Consulate." ( Id. ¶ 42.)
According to Rana, in February 2014, Islam told him he must move to Morocco with the family and continue to work there in defendants' new household. ( Id. ¶ 64.) Rana alleges that he "overheard Defendant Islam say to Defendant Prova that they could not leave [Rana] in the United States... [or] send him back to Bangladesh because Mr. Rana could report Defendant Islam to the authorities, which could create a problem for [defendant Islam's] job and harm his reputation." ( Id. ¶ 65.) Islam then allegedly told Rana "that he must come with [the family] to Morocco, or Defendant Islam would kill him." ( Id. ¶ 66.) On or about March 2, 2014, after Islam allegedly refused to allow Rana to contact a relative's acquaintance in New York ( id. ¶¶ 67-69), Rana fled defendants' apartment "with the clothes on his back and a few personal effects" ( id. ¶ 70).
Rana commenced this litigation on March 21, 2014. (Dkt. No. 2.) The same day, his process server attempted to serve Islam and Prova with the summons and complaint at their apartment at 60 West 57th Street in Manhattan. (Decl. of Raymond Hollingsworth dated May 20, 2014 ("Hollingsworth Decl.") ¶ 3; Return of Service, Dkt. Nos. 3-4.) The process server identified himself to the building concierge, who called up to defendants' apartment. (Hollingsworth Decl. ¶ 5.) There was no answer, and the concierge did not allow the process server to go up to the apartment. ( Id. )
The process server returned the next day - March 22 - in order to effectuate personal service of process. ( Id. at ¶ 6.) Because the concierge desk was unoccupied when he arrived, he proceeded to defendants' apartment and knocked on the door. ( Id. ) Even though "voices [were] coming from the apartment, " no one answered. ( Id. )
On Monday, March 24, one day after defendants claim in their answering declarations that they had left the country, the process server returned to the 57th Street building and identified himself to the concierge, Darusalam Raden, as a process server with documents for defendants. ( Id. ¶ 7.) Raden confirmed that defendants were residents of the building and called up to their apartment. ( Id. ¶¶ 7, 9; Decl. of Darusalam Raden dated May 22, 2014 ("Raden Decl.") ¶¶ 8-9.) There was no answer, and Raden did not allow the process server to proceed to defendants' apartment. (Hollingsworth Decl. ¶ 8; Raden Decl. ¶ 10.) The process server left two copies of the summons and complaint with Raden, who said he would give them to defendants. (Hollingsworth Decl. ¶ 10.) Raden placed the documents in defendants' mailbox, and they were eventually removed. (Raden Decl. ¶¶ 11-12.) The process server also mailed two copies of the summons and complaint to the apartment. (Hollingsworth Decl. ¶ 11.) Sometime after March 24 - in late March or early April - Raden learned that defendants had moved out of the building. (Raden Decl. ¶ 13.)
A. Motion to Dismiss the Fraudulent Misrepresentation Claim for Failure to State a Claim for Relief
Defendants move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Rana's fraudulent misrepresentation claim on the grounds that Rana has not pled that claim with sufficient particularity. See Fed.R.Civ.P. 9(b). Rana has agreed to dismissal of his fraudulent misrepresentation claim against defendant Islam. (Pl.'s Mem. in Opposition to Mot. to Dismiss ("Pl.'s Opp'n") at 23 n.17, Dkt. No. 17.) Therefore, the Court evaluates Rana's pleadings only insofar as they relate to his fraudulent misrepresentation claim against defendant Prova.
1. Legal Standard
In evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court accepts the truth of the facts alleged in the complaint and draws all reasonable inferences in the plaintiff's favor. Wilson v. Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011) (internal citation omitted). A complaint will survive a motion to dismiss only if the plaintiff has pled "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. V. Twombly, 550 U.S. 544, 570 (2007). For a claim to be plausible, the plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555.
To state a claim for fraudulent misrepresentation pursuant to New York law, "a plaintiff must show that (1) the defendant made a material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a result of such reliance." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 186-87 (2d Cir. 2004) (internal citation and quotation marks omitted). Courts must evaluate fraud claims in light of Rule 9(b), which requires that the complaint "state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). The allegations of fraud must "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (internal citation and quotation marks omitted).
2. Rana Has Sufficiently Pled His Fraudulent Misrepresentation Claim
Rana alleges that in the weeks after June 17, 2012, in Dhaka, Bangladesh, defendant Prova told him "that [he] would enjoy all of the rights and privileges of Americans in the United States"; that she would "renew Mr. Rana's visa in the United States"; and that "Rana would have some free time to himself every day when he completed his job duties." (Compl. ¶¶ 20, 21, 28; see also id. ¶¶ 31-32, 34.) These allegations comport with Rule 9(b), specifying the time, place, and nature of the alleged misrepresentations that form the basis of Rana's fraudulent misrepresentation claim.
Defendant Prova asserts that Rana "generally alleges vague time periods during which Defendant Prova allegedly made false promises to him." (Defs.' Reply Mem. in Supp. of Mot. to Dismiss ("Defs.' Reply") at 8, Dkt. No. 19.) However, "a complaint need only apprise a defendant of the general time period' of any alleged misstatements to meet the requirements of Rule 9(b)." Harris v. Wells, 757 F.Supp. 171, 173 (D. Conn. 1991) (quoting Int'l Paper Co. v. James, 1989 WL 240079, at *10 (S.D.N.Y. Oct. 12, 1989)). Accordingly, courts have found sufficient specificity when plaintiffs alleged misrepresentations during a two-month period, Internet Law Library, Inc. v. Southridge Capital Mgmt., LLC, 223 F.Supp.2d 474, 481 (S.D.N.Y. 2002), and a three and one-half month period, Jubran v. Musikahn Corp., 673 F.Supp. 108, 112 (E.D.N.Y. 1987). Rana alleges that defendant Prova's misrepresentations were made in Dhaka in the weeks after June 17, 2012. ( Compl. ¶¶ 20-28.) Since Rana and Prova moved to the United States on or about September 11, 2012 ( id. ¶ 38), the Court can infer that the statements were made within the three-month period from mid-June to mid-September. Furthermore, Rana alleges that after visiting the American Embassy in Dhaka in or around July 2012 to obtain a visa, Prova "informed Mr. Rana directly that she and Defendant Islam would pay him $3, 000 per month." (Compl. ¶¶ 31-32, 34.) These allegations are sufficiently specific to enable defendants to submit an answer and prepare for trial. See Manavazian v. Atec Group, Inc., 160 F.Supp.2d 468, 477-78 ...