18‐2991‐cv
Adia v. Grandeur Management, Inc.



                       UNITED STATES COURT OF APPEALS

                            FOR THE SECOND CIRCUIT

                                    August Term 2018

             Submitted: May 6, 2019                 Decided: July 25, 2019

                                   Docket No. 18‐2991‐cv

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NOEL P. ADIA,

            Plaintiff‐Appellant,

                  v.

GRANDEUR MANAGEMENT, INC., RAJA I. YOUNAS,

            Defendants‐Appellees.

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Before: NEWMAN, JACOBS, and DRONEY, Circuit Judges.

      Appeal from a judgment of the United States District Court for the Southern

District of New York (Robert W. Sweet, District Judge) dismissing the plaintiff‐

appellant Noel P. Adia’s complaint against the defendants‐appellees Grandeur

Management, Inc. and Raja I. Younas, alleging claims for forced labor and human
trafficking in violation of the Trafficking Victims Protection Act (“TVPA”), 18

U.S.C. §§ 1589, 1590, 1595, and the Alien Tort Statute, 28 U.S.C. § 1350, and a claim

for unpaid overtime under Article 19 of the New York Labor Law. The appeal is

taken only from the dismissal of Adia’s TVPA claims for forced labor and human

trafficking.

      Because the plaintiff has plausibly stated claims for forced labor and human

trafficking under the TVPA, we vacate the District Court’s judgment in part and

remand for further proceedings.



                                Felix Q. Vinluan, Law Office of Felix Vinluan,
                                      Woodside, NY for Plaintiff‐Appellant Noel
                                      P. Adia.

                                Nolan Klein, Law Offices of Nolan Klein, P.A.,
                                     New York, NY for Defendants‐Appellees
                                     Grandeur Management, Inc. and Raja I.
                                     Younas.


JON O. NEWMAN, Circuit Judge:

      The issue on this appeal is whether the provision of the Trafficking Victims

Protection Act (“TVPA”) creating a civil remedy, 18 U.S.C. § 1595, for violating the

criminal provisions prohibiting forced labor and human trafficking, id. §§ 1589,

1590, applies to an immigrant lawfully in this county on a temporary guest worker
visa alleging that his employers threatened to revoke their sponsorship, thereby

subjecting him to deportation.1 This issue arises on an appeal by Noel P. Adia from

a judgment of the District Court for the Southern District of New York (Robert W.

Sweet, District Judge) dismissing, under Fed. R. Civ. P. 12(b)(6), his amended

complaint      against     defendants‐appellees         Grandeur       Management,         Inc.

(“Grandeur”) and Raja I. Younas (collectively “the defendants”).

       We conclude that Adia plausibly pled violations of the TVPA. The

complaint alleges that the employers recruited Adia to work for them, told him to

rely on them, represented that they were ensuring that he could remain lawfully

in this country, and warned him that they would cancel their sponsorship if he left

them or gave them any trouble. We reverse dismissal of the TVPA allegations and

remand for further proceedings.

                                        Background

       Alleged facts. The original and amended complaints allege the following

facts, assumed to be true for purposes of this appeal. See Walker v. Schult, 717 F.3d

119, 124 (2d Cir. 2013). Plaintiff‐appellant Adia is a Filipino citizen who lawfully

entered the United States as a temporary guest worker with an H‐2B visa.


       1Although a deportable alien is “removed,” 8 U.S.C. § 1227(a), we will use “deportation,”
the term used by the District Court and the parties.
Defendant‐appellee Grandeur is a provider of hotel and resort services;

Defendant‐appellee Younas is the manager of Grandeur. In early September 2010,

Younas offered Adia H‐2B transfer sponsorship as a housekeeping attendant in

South Carolina. Adia had been engaged in similar employment in South Dakota

when he accepted Younas’s offer. When Adia arrived in South Carolina, the

defendants informed him that there was no work at that time. The defendants

assured him that a job would arise, and presented apparent proof in the form of a

United States Citizenship and Immigration Services (“USCIS”) notice that they

had filed for an extension of his H‐2B status under their sponsorship.


      In March 2011, Younas instructed Adia to coordinate with a cleaning

services company in New York, which led to his employment as a housekeeping

attendant, and later as a doorman, at Manhattan hotels. The defendants paid Adia

through affiliated entities, and monitored his employment. Although Adia

regularly worked more than 40 hours a week, the defendants did not pay him extra

for overtime.


      In October 2011, Adia was told by Younas that he had applied to change

Adia’s H‐2B status to B1/B2, and sent Adia the USCIS notice acknowledging

receipt of the application. Younas promised that he would ensure that Adia could
lawfully remain in the country, and asked Adia in return to promise not to look

for other employment.


      Younas told Adia that his immigration status depended on his “continuing

reliance” on the defendants, and that the “[d]efendants would cancel or withdraw

his immigration sponsorship if he left them” or would be “difficult to them

regarding his work.” Adia feared that the defendants would cancel his

immigration sponsorship or terminate his employment if he complained about not

receiving overtime pay.


      In February 2012, Adia asked Younas about the filing of his H‐1B

sponsorship. Younas told him that he had not filed any H‐1B petition for Adia and

that Adia had been unlawfully working and staying in the country for some time

because he did not have a valid immigration status.


      Procedural history. Adia filed a complaint alleging causes of action for forced

labor and human trafficking under the TVPA and the Alien Tort Statute (“ATS”),

as well as unpaid overtime under the New York Labor Law. The defendants filed

a motion to dismiss pursuant to Rules 12(b)(2) and 12(b)(6).


      The District Court denied the Rule 12(b)(2) motion, but granted the Rule

12(b)(6) motion. See Adia v. Grandeur Management, Inc., No. 17 Civ. 9349 (RWS),
2018 WL 4300528 (S.D.N.Y. Sept. 10, 2018). The Court dismissed the TVPA claims

against Grandeur, ruling that the Act does not impose liability on corporate

defendants. As to the TVPA claims against Younas, the Court ruled that the forced

labor claim failed because it was based on Adia’s “subjective feeling,” id. at *3,

rather than on threats; the human trafficking claim was ruled insufficient because

Adia was already in the country when he was recruited and the allegations merely

restated the forced labor claim. The District Court dismissed the ATS claims

because Adia failed to allege any facts that could reasonably be construed as a

violation of the law of nations. Finally, the Court declined to exercise supplemental

jurisdiction over the state law overtime pay claim.


                                      Discussion


      Pleading standard. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

must plead “enough facts to state a claim to relief that is plausible on its face.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal citation omitted). Determining whether a claim is

plausible is “a context‐specific task that requires the reviewing court to draw on
its judicial experience and common sense.”2 Id. at 679 (internal citation omitted).

To keep the plausibility standard in perspective, we do well to keep in mind that

just two weeks after deciding Twombly, the Supreme Court, reversing a Rule

12(b)(6) dismissal of a complaint, stated, “Federal Rule of Civil Procedure 8(a)(2)

requires only a short and plain statement of the claim showing that the pleader is

entitled to relief. Specific facts are not necessary; the statement need only give the

defendant fair notice of what the claim is and the grounds upon which it rests.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted).


       Adia’s TVPA forced labor claim. A person violates 18 U.S.C. § 1589 when he or

she:


       knowingly provides or obtains the labor or services of a person by
       any one of, or by any combination of, the following means—
       ...
       (3) by means of the abuse or threatened abuse of law or legal process;
       or
       (4) by means of any scheme, plan, or pattern intended to cause the
       person to believe that, if that person did not perform such labor or
       services, that person or another person would suffer serious harm or
       physical restraint . . . .




       2  The context of Twombly was an alleged antitrust conspiracy among the so‐called “Baby
Bells,” after their divestiture by the American Telephone & Telegraph Company. The context of
Iqbal was an allegation of unconstitutional action by the United States Attorney General and the
FBI Director.
18 U.S.C. § 1589(a). The victim of a section 1589(a) criminal violation has a civil

remedy.

      An individual who is a victim of a violation of this chapter may bring
      a civil action against the perpetrator . . . in an appropriate district
      court of the United States and may recover damages and reasonable
      attorney[’]s fees.

18 U.S.C. § 1595(a).

      Adia contends that by threatening to alter his immigration status, the

defendants abused or threatened abuse of law or legal process in violation of

subsection 1589(a)(3), and caused Adia to believe that he would suffer the serious

harm of deportation by means of a scheme or plan in violation of subsection

1589(a)(4). “[A]buse or threatened abuse of law or legal process” means “the use

or threatened use of a law or legal process . . . in any manner or for any purpose

for which the law was not designed, in order to exert pressure on another person

to cause that person to take some action or refrain from taking some action.” Id. at

§ 1589(c)(1). “[S]erious harm” means “any harm, whether physical or nonphysical,

including psychological, financial, or reputational harm, that is sufficiently

serious . . . to compel a reasonable person of the same background and in the same

circumstances to perform or to continue performing labor or services in order to

avoid incurring that harm.” Id. at § 1589(c)(2).
      The Supreme Court, considering a similar statute prohibiting involuntary

servitude, 18 U.S.C. § 1584, has stated that “threatening . . . an immigrant with

deportation could constitute the threat of legal coercion.” United States v.

Kozminski, 487 U.S. 931, 948 (1988). The Tenth Circuit has stated that threats of

deportation can constitute “serious harm” under subsection 1589(c)(2). United

States v. Kalu, 791 F.3d 1194, 1212 (10th Cir. 2015).


      The amended complaint explicitly alleges that Younas told Adia that the

“[d]efendants would cancel or withdraw his immigration sponsorship if he left

them or would be difficult to them regarding his work.” In the context of Adia’s

circumstances, the defendants’ alleged threat to cancel their sponsorship

constitutes abuse of legal process for purposes of subsection 1589(a)(3). See, e.g.,

United States v. Calimlim, 538 F.3d 706, 713 (7th Cir. 2008).


      When Younas said that the defendants would withdraw their sponsorship

of Adia’s visa if he stopped working for them or gave them any trouble, the

statement, viewed in light of the surrounding circumstances, plausibly supports

an inference that Adia was entitled to regard it as a threat to expose him to

deportation. See, e.g., Aguirre v. Best Care Agency, Inc., 961 F. Supp. 2d 427, 460–61

(E.D.N.Y. 2013), and plausibly constituted a claim of abuse of the legal process.
See, e.g., Calimlim, 538 F.3d at 713. Adia has plausibly pled a claim for forced labor

under subsection 1589(a)(3).

          For the same reasons, Adia has plausibly stated a claim for relief under

subsection 1589(a)(4). The defendants’ threat that they would withdraw

sponsorship could plausibly be understood as a scheme to convince him that he

would be harmed by deportation if he left or asked for overtime pay. The

defendants threatened the plaintiff with serious harm—removal from the country

due to a loss of legal status. They did so while engaging in a scheme whose

purpose was to make Adia rely on them in remaining in this country legally, to

force him to accept less than the prevailing wage rate based on the threat of facing

deportation, and similarly to forestall any effort to seek other employment. Adia’s

subsection 1589(a)(4) claim also withstands a motion to dismiss. See, e.g., United

States v. Dann, 652 F.3d 1160, 1172 (9th Cir. 2011).


          Adia has stated viable forced labor claims under subsections 1589(a)(3) and

(a)(4).


          Adia’s TVPA trafficking claim. A person violates 18 U.S.C. § 1590 when he or

she “knowingly recruits, harbors, transports, provides, or obtains by any means,

any person for labor or services in violation of” the statutes prohibiting, inter alia,
forced labor, is guilty of trafficking. 18 U.S.C. § 1590(a). Section 1595 provides a

civil remedy for victims of violations of this statute as well.


      Adia alleges that when he was working in South Dakota, Younas recruited

him to come work for Grandeur by saying that he would sponsor his H‐2B transfer

application. This allegation is distinct from the forced labor allegations. The

defendants recruited Adia by promising to transfer and sponsor his H‐2B visa,

then forced him to work for less than he was owed by threatening to revoke that

sponsorship. Section 1590 employs the disjunctive “or” in delineating the ways in

which a defendant can violate the statute. Therefore, if a defendant violates section

1589, he also violates section 1590 if he recruited the person to perform forced

labor. As Adia has plausibly alleged claims for forced labor, he has also plausibly

alleged a claim for trafficking based on the allegation related to his recruitment.


      It does not matter, as the District Court thought, that Adia was already

present in the United States when the defendants recruited him. There is no

requirement in either sections 1589 or 1590 that victims be brought into, or

recruited from outside, the United States. Indeed, the statutes do not even require

that the victims be foreign‐born. See, e.g., United States v. Callahan, 801 F.3d 606,

618 (6th Cir. 2015).
       Adia has plausibly alleged a claim for trafficking under section 1590.


       Corporate liability. Finally, we note that, as the defendants concede, the

District Court erroneously ruled that Grandeur, as a corporate defendant, could

not be liable under the TVPA.3


                                         Conclusion


       The judgment of the District Court is vacated in part. Because the plaintiff

has abandoned his ATS claims on appeal, they need not be considered, see Tiffany

(NJ) Inc. v. eBay Inc., 600 F.3d 93, 112 (2d Cir. 2010). We vacate the portion of the

judgment appealed from, dismissing the plaintiff’s TVPA claims, and the case is

remanded for further proceedings, including the exercise of supplemental

jurisdiction.




       3  In rejecting corporate liability, the District Court mistakenly relied on caselaw
considering a different statute, the Torture Victim Protection Act, that happens to have the same
abbreviation as the TVPA. Adia, 2018 WL 4300528, at *3 (citing Mohamad v. Palestinian Authority,
566 U.S. 449, 451 (2012)).
