Opinion
21-CV-00095 (PGG)(SN)
08-22-2022
ANDRE NGONO, Plaintiff, v. LUC OWONO, et al., Defendants.
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE PAUL G. GARDEPHE:
Andre Ngono, proceeding pro se, has filed this federal action against (1) Luc Owono, (2) Kamara Youssouf, (3) Africa Employment Agency (“AEA”), (4) Luckendy Realty, (5) Travsail Agency, Inc., (6) Access Transportation Services, Inc., and (7) Sable Hub, Inc. See ECF No. 38 (“Complaint”) at 2-3. Plaintiff alleges that Defendants Owono and Youssouf are agents of AEA, which he describes as an “international criminal enterprise based in Africa.” Id. at 3. Plaintiff alleges that Defendants Luckendy Realty and Travsail Agency are New York based subsidiaries of AEA that are managed by Owono on its behalf, and that Access Transportation Services and Sable Hub are similarly New York based “daughter companies” of AEA. Id. at 2-4.
Plaintiff alleges that Defendants subjected him to labor trafficking and attempted to subject his minor daughter to sex trafficking. Id. at 2. The Court has liberally construed Plaintiff's Second Amended Complaint to assert nine causes of action under state and federal law, including labor and sex trafficking under 18 U.S.C. § 1595 (the civil remedy provision of the Trafficking Victims Protection Act or “TVPA”) and N.Y. Soc. Serv. Law § 483-bb(c)(i), abuse of process, violation of his rights under N.Y. Const. art. I § 1, conspiracy, deceit, and intentional infliction of emotional distress (“IIED”). Id. at 13-17. Defendants Owono, Luckendy Realty, Travsail Agency, Inc., Access Transportation Services, Inc., and Sable Hub, Inc. (“Defendants”) have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). See ECF No. 64. I recommend that the Court grant Defendants' motion to dismiss.
PLAINTIFF'S ALLEGATIONS
As set out in Plaintiff's Second Amended Complaint, in 2006 Plaintiff was recruited in Gabon, Africa to come to America and work for AEA. Id. at 4. Plaintiff was to work for AEA for a term of five years, during which time he was to repay a “debt bondage” of $50,000 meant to cover the cost of his U.S. visa, travel expenses, protection, and shelter. Id. at 4-5. Pursuant to this agreement, AEA was also to help Plaintiff obtain a green card through a fraudulent marriage. Id. at 5.
Plaintiff arrived in America at JFK International Airport on December 7, 2006, where he was met by Defendant Youssouf, an agent of AEA. Id. at 5. Youssef drove Plaintiff to a house in the Bronx, and placed him under the supervision of Defendant Owono, another agent of AEA. Id. Once there, Plaintiff surrendered his passport to Owono at Owono's request. Id. at 6. Owono then told Plaintiff that he was to work under the name of Luc Ndi Owono, and that any money earned by him would be deposited into an account bearing that name before eventually being transferred to AEA in Africa. Id. Over the next five years, Plaintiff earned more than $72,000 working using Owono's documentation. Id. at 7.
Once Plaintiff's debt had been repaid, Owono presented him with two options: Plaintiff could continue to work using Owono's documentation and retain 20% of his wages, or he could attend college using that same documentation. Id. at 8-9. Upon graduation, Owono would then be given a job working for Defendant Travsail, a travel agency subsidiary of AEA. Id. at 9. Plaintiff elected the second option, and began attending school while Owono received student loan payments on his behalf. Id. Plaintiff alleges that by sending him to college, Owono was simply executing another money-making scheme, and that in order to retain the student loan funds for himself, Owono told the Department of Education that he had been the victim of identity theft. Id. Owono then made similar reports to the Department of Labor, which eventually led to an FBI investigation. Id. at 9-10. Owono manipulated investigators to steer the course of this investigation towards Plaintiff, essentially using him as a patsy. Id. at 10-11. The FBI's investigation culminated in Plaintiff's arrest on March 17, 2016. Id. at 12.
Plaintiff's 7-year-old daughter accompanied him to America, and shortly after their arrival Defendants Owono and Youssef asked Plaintiff if he would allow them to sell her as a sex slave in return for $50,000 and the full discharge of his $50,000 debt to AEA. Id. Plaintiff refused to allow them to do so. Id. at 13. After that conversation, Defendants Owono and Youssef began to threaten to report Plaintiff to U.S. Immigration and Customs Enforcement (“ICE”). Id. Plaintiff asserts that it was this threat-and the attending fear that if he were deported, Defendants would sell his daughter as a sex slave-that caused him to continue to work for Defendants and acquiesce with the plan to repay his debt. Id.
BACKGROUND
On May 4, 2017, following a jury trial in the United States District Court, Southern District of New York, Plaintiff was found guilty on six counts relating to his theft of Defendant Owono's identity. United States v. Ngono, No. 16-cr-367 (PAC), 2021 WL 2850626, at *1 (S.D.N.Y. July 7, 2021). Plaintiff had used Owono's stolen identity to “enroll in college and obtain federal student financial aid, unemployment insurance benefits, and immigration benefits under the Deferred Action for Childhood Arrivals program . . . .” United States v. Ngono, 801 Fed.Appx. 19, 20-21 (2d Cir. 2020). During his criminal trial, Plaintiff testified in his own defense, alleging that an “international criminal slave trade organization [had] brought him to the United States and provided him with free housing and education in exchange for five years of his salary.” Id. at 21.
DISCUSSION
I. Dismissal under Rule 12(b)(6) and Construction of Pro Se Submissions
To survive a 12(b)(6) motion to dismiss, a complaint “must allege sufficient facts . . . to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In reviewing such a motion, courts “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).
The “submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (cleaned up); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). The Court must, however, examine a pro se plaintiff's complaint “for factual allegations sufficient to meet the plausibility requirement.” Hill, 657 F.3d at 122; see Twombly, 550 U.S. at 570 (a complaint must allege “enough facts to state a claim for relief that is plausible on its face”). Courts “are obligated to draw the most favorable inferences that [a pro se] complaint supports,” but “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “[The] leniency accorded pro se plaintiffs when attempting to understand the claims raised in often inartfully worded complaints does not create a predisposition toward such plaintiffs in the substantive determination of whether their claims are frivolous.” Anderson v. Coughlin, 700 F.2d 37, 43-44 (2d Cir. 1983). The Court will not assume the truth of mere legal conclusions or conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
II. Labor and Sex Trafficking Under the TVPA
The TVPA creates a civil cause of action for victims of violations of the act against perpetrators of those violations. 18 U.S.C. § 1595(a). A person who “holds or returns any person to a condition of peonage” or “knowingly recruits, harbors, transports . . . or obtains by any means, any person for labor or services in violation of this chapter” violates the TVPA. 18 U.S.C. §§ 1581(a), 1590(a). “Peonage has been defined as a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The peon can release himself therefrom by the payment of the debt, but otherwise, the service is enforced.” Stein v. WorldWide Plumbing Supply Inc., 71 F.Supp.3d 320, 327 (E.D.N.Y. 2014) (cleaned up). It is a violation of the TVPA to “knowingly provide[] or obtain[] the labor or services of a person . . . by means of the abuse or threatened abuse of law or legal process . . . in any manner for which the law was not designed, in order to exert pressure on another person to cause that person to take some action ....” 18 U.S.C. §§ 1589(a)(3), (c)(1). The TVPA also creates liability for a person who attempts to recruit or solicit a minor to engage in a commercial sex act. 18 U.S.C. §§ 1591(a)(1), 1594(a).
The statute of limitations for claims under the TVPA is ten years after the cause of action arises. 18 U.S.C. § 1595(c)(1). The statute of limitations may be equitably tolled. In re S. Afr. Apartheid Litig., 617 F.Supp.2d 228, 288 (S.D.N.Y. 2009) (“Courts have uniformly held that the TVPA statute of limitations is subject to equitable tolling.”) (collecting cases). “To qualify for equitable tolling, the plaintiff must establish that extraordinary circumstances prevented him from filing his claim on time, and that he acted with reasonable diligence throughout the period he seeks to toll.” Phillips v. Generations Fam. Health Ctr., 723 F.3d 144, 150 (2d Cir. 2013) (cleaned up).
Plaintiff's allegations, accepted as true, may establish one or more claims under the TVPA. However, these claims arose during or “shortly after” December 2006-well over ten years from the time of the filing of this suit in January 2021-and Plaintiff has pleaded no circumstances, extraordinary or otherwise, that would have prevented him from timely filing his claim. Therefore, Plaintiff's federal labor and sex trafficking claims are time-barred by the TVPA's statute of limitations.
III. Labor and Sex Trafficking under New York Law
New York law creates a civil cause of action for victims of both labor and sex trafficking. N.Y. Soc. Serv. Law § 483-bb(c)(i). The statute of limitations for this cause of action is 15 years from “the date on which the trafficking victim was freed from the trafficking situation ....” N.Y. Soc. Serv. Law § 483-bb(c)(ii). Under New York law, a person is guilty of labor trafficking if they compel another to engage in labor by instilling a fear in such person that immigration proceedings may be instituted against them. N.Y. Penal Law § 135.35(3)(d). A person is guilty of sex trafficking of a child if they directly engage in conduct that facilitates an act or enterprise of prostitution of a person less than eighteen years old. N.Y. Penal Law § 230.34-a.
Plaintiff never claims that he was brought to America involuntarily. Rather, the complaint indicates that he came of his own volition, with full understanding that he was incurring a debt that would be repaid by working for AEA. See Complaint at 4-5 (“The Defendants recruited me in Africa under the term that I was to come to the United States of America to work for the Agency . . . to liquidate my debt bondage of $50,000.00 [which] accounted for the cost of my U.S. visa, my travel expenses, fees ....”). Plaintiff's main objection to this entire course of events is that he was unaware that working under someone else's documentation was illegal. Id. at 5-6 (“In [Gabon and Cameroon] employees are verbally hired or fired . . . [n]o social security or work authorization is required ....”). And while Plaintiff claims it was the lingering fear of deportation that caused him to follow through on his five-year term, he pleads no facts demonstrating that he was compelled to do anything at all. The scheme Plaintiff describes is certainly troubling, but it does not, as pleaded, constitute labor trafficking under New York law.
With regard to Plaintiff's sex trafficking claim, the cause of action created by § 483-bb(c)(i) is limited to victims, and Plaintiff does not purport to bring a claim on behalf of his daughter (who, per Plaintiff's complaint, is no longer a minor). Therefore, Plaintiff lacks standing to sue on that ground. Furthermore, Plaintiff has pleaded no facts demonstrating that any of the Defendants engaged in conduct that facilitated prostitution.
IV. Abuse of Process
“In New York, a malicious abuse of process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). “The gist of the action for abuse of process lies in the improper use of process after it is issued ....It follows that there must be an unlawful interference with one's person or property under color of process in order that action for abuse of process may lie.” Williams v. Williams, 23 N.Y.2d 592, 596 (N.Y. 1969) (internal quotation marks and citations omitted) (emphasis added). “A malicious motive alone . . . does not give rise to a cause of action for abuse of process.” Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984). “[C]ivil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments . . . .” Heck v. Humphrey, 512 U.S. 477, 486 (1994). “Cognizable injury for abuse of process is limited to the harm caused by the misuse of process, and does not include harm (such as conviction and confinement) resulting from that process's being carried through to its lawful conclusion. Thus, one could no more seek compensatory damages for an outstanding criminal conviction in an action for abuse of process than in one for malicious prosecution.” Id. at 486 n.5.
Plaintiff's argument is essentially that Owono lied to the FBI when he reported his identity theft, and that his subsequent cooperation in the investigation and prosecution of Plaintiff was as an elaborate cover-up of the trafficking scheme. Even taking these allegations as true, Plaintiff has failed to adequately plead a cause of action for abuse of process. Plaintiff has not identified any harm he suffered as a result of Owono's actions other than his lawful criminal conviction, and a malicious motive alone is not sufficient. See id.; Curiano, 63 N.Y.2d at 117.
Plaintiff also alleges that Defendants Owono and Youssef's threats to report him to ICE constitute an abuse of process. They do not, because no process is alleged to have been employed. Furthermore, because Plaintiff was, by his own admission, not a lawful resident of the U.S., the potential deportation he feared would not necessarily have been an unlawful interference. See Cook, 41 F.3d at 80; Williams, 23 N.Y.2d at 596.
V. Civil Rights Violation
The New York State Constitution provides that “No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land ....” N.Y. Const. art. I, § 1. There is no explicit state action requirement in Article I, but this “does not mean that State involvement in the objected-to activity is not required.” Doe v. Harrison, No. 03-cv-3943 (DAB), 2006 WL 2109433, at *5 (S.D.N.Y. July 28, 2006). “[A] Bill of Rights is designed to protect individual rights against the government . . . and not the rights of private individuals against private individuals.” SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 502-03 (1985). “The State action requirement, consistently recognized and reaffirmed in our decisions, performs a vital function.” Id. (internal citations removed) (gathering cases).
Plaintiff claims only that the Defendants, acting as private individuals, deprived him of his constitutional right to be free from slavery (read: peonage). Plaintiff has not identified any state action, and therefore has not adequately pleaded a cause of action under the New York Constitution. See id.
VI. Conspiracy
“New York does not recognize an independent cause of action for civil conspiracy . . . [rather] the plaintiff must demonstrate the primary tort, plus the following four elements: an agreement between two or more parties; an overt act in furtherance of the agreement; the parties' intentional participation in the furtherance of a plan or purpose; and resulting damage or injury.” Cohen Bros. Realty Corp. v. Mapes, 181 A.D.3d 401, 404 (1st Dep't 2020) (internal quotation marks omitted) (citing Alexander & Alexander of N.Y. v. Fritzen, 68 N.Y.2d 968, 969 (1986)). “An action in conspiracy cannot be maintained by a complaint containing only vague and conclusory allegations.” Green v. City of New York Med. Examiner's Off., 723 F.Supp. 973, 975 (S.D.N.Y. 1989). San Filippo v. U.S. Tr. Co. of New York, 737 F.2d 246, 256 (2d Cir. 1984) (“plaintiff's conclusory allegations of conspiracy are insufficient to survive . . . a 12(b)(6) motion for dismissal”).
Plaintiff has failed to adequately plead the elements of conspiracy. He has not alleged any facts demonstrating an agreement between any of the Defendants, nor has he identified any acts taken in furtherance of such an agreement. Furthermore, Plaintiff does not clearly state what would constitute the primary tort that the conspiracy was meant to accomplish, only offering the conclusory allegation that Defendants conspired to traffic him.
VII. Deceit
Plaintiff raises a claim under New York State Law for “deceit.” To the extent that this may be construed as a claim for fraud, Plaintiff has failed to adequately plead facts supporting any of the necessary elements of that tort. Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559 (2009) (“The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.”).
VIII. Intentional Infliction of Emotional Distress
“[I]ntentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress.” Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). While Plaintiff's allegations, taken as true, might demonstrate extreme and outrageous conduct on behalf of Defendants, he has pleaded no facts demonstrating an intent by any of the Defendants to cause him severe emotional distress.
IX. Defendants Youssouf and AEA
To date, neither Kamara Youssef nor Africa Employment Agency have appeared in this action. Plaintiff did not provide the U.S. Marshals Service with addresses for either of these parties. See ECF No. 43, 44. On February 28, 2022, this Court made clear to Plaintiff that failure to serve those defendants could result in a dismissal of the claims against them. ECF No. 59. See Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002) (“As indicated by the plain language of Rule 4(m), notice to the plaintiff must be given prior to a sua sponte dismissal.”) Therefore, I recommend Plaintiff's claims against Defendants Youssef and AEA be dismissed pursuant to Rule 4(m).
LEAVE TO AMEND
Rule 15(a)(2) requires that leave to amend be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). “However, in determining whether leave to amend should be granted, the district court has discretion to consider, inter alia, the apparent futility of amendment. Amendment would likely be futile if, for example, the claims the plaintiff sought to add would be barred by the applicable statute of limitations.” Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000) (internal citations and quotation marks omitted); Cancel v. New York City Hum. Res. Admin./Dep't of Soc. Servs., 527 Fed.Appx. 42, 44 (2d Cir. 2013) (“While district courts should generally not dismiss pro se claims without affording leave to amend, it need not do so when amendment would be futile.”).
The only cognizable federal cause of action Plaintiff's complaint may raise is time barred by the TVPA's ten-year statute of limitations. Plaintiff and all Defendants who have been served are residents of New York, and thus even if Plaintiff were granted leave to amend his state law claims, there would be no basis for diversity jurisdiction over them. Therefore, I recommend Plaintiff not be afforded leave to amend the complaint a second time.
CONCLUSION
The claims Plaintiff's complaint has been construed to raise under the TVPA are time barred by its ten-year statute of limitations. Plaintiff has failed to state a plausible claim sufficient to satisfy Rule 12(b)(6) for any of the other causes of action his complaint can be construed to present. Accordingly, I recommend that the Court grant Defendants' motion to dismiss in its entirety.
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).