1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
DM_US:22990350_1
Michael J. Stimson (SBN 224817)
Email: stimsonm@howrey.com
HOWREY LLP
4 Park Plaza, Suite 1700
Irvine, CA 92614
Telephone: (949) 721-6900
Facsimile: (949) 721-6910
Attorneys for Plaintiff ROSA ROMERO HERNANDEZ
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ROSA ROMERO HERNANDEZ,
Plaintiff,
vs.
SAMAD ATTISHA and YVONNE ATTISHA,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Case No. 3:09-cv-02257-IEG-WMC
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANTS' MOTION TO DISMISS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
17
18
19
20
21
22
24
25
26
27
28
16
23
-2- MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
DM_US:22990350_1
INTRODUCTION
Plaintiff Rosa Romero Hernandez, a certified victim of human trafficking, was forced to act as
a domestic servant to Defendants Samad and Yvonne Attisha since May 2002. Defendants forced
Plaintiff to work up to 14.5 hours per day in Defendants’ home, and Plaintiff was subject to
Defendants’ strict control.
Plaintiff was rescued from Defendants’ home on July 23, 2008. She filed her original
complaint in this court on October 13, 2009, about 15 months after she was rescued. The first
amended complaint includes eight claims: (1) violations of Fair Labor Standards Act; (2) Involuntary
Servitude; (3) Trafficking with respect to Peonage, Slavery, Involuntary Servitude, or Forced Labor;
(4) Aliens Tort Claims Act; (5) Negligent Infliction of Emotional Distress; (6) Intentional Infliction of
Emotional Distress; (7) Conversion; and (8) Violations of California Labor Code.
Defendants moved to dismiss the Second, Third, Fifth, Sixth, and Seventh claims as precluded
by statutes of limitation. But Defendants incorrectly state the applicable statutes of limitation or
incorrectly apply them.
ARGUMENT
I. IN DECIDING MOTIONS UNDER RULE 12(B)(6), THIS COURT ACCEPTS ALL
MATERIAL ALLEGATIONS IN THE COMPLAINT AS TRUE
As Defendants concede, in evaluating a Rule 12(b)(6) motion, “the complaint is construed in
the light most favorable to the plaintiff . . . [and] the court must accept as true all material allegations
in the complaint, as well as reasonable inferences to be drawn from them.” Moving Brief, 2:13-24
(citation omitted). For purpose of this motion, all material allegations in the complaint are
incontestable.
II. 18 U.S.C. § 1595(A) EXPLICITLY PROVIDES PRIVATE CAUSES OF ACTION FOR
CLAIMS BROUGHT UNDER § 1584 AND § 1590
Defendants move to dismiss Plaintiff’s Second and Third causes of action, incorrectly alleging
that their statutory basis—18 U.S.C. § 1584 and § 1590—precludes private causes of action. Moving
Brief, 3:2-4:12. Section 1584 prohibits involuntary servitude and § 1590 prohibits “trafficking with
respect to peonage, slavery, involuntary servitude, or forced labor.”
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3- MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
DM_US:22990350_1
Defendants appear unaware that 18 U.S.C. § 1595(a) explicitly provides private causes of
action for violations of 18 U.S.C. §§ 1584 and 1590:
An individual who is a victim of a violation of this chapter [18 USCS §§ 1581 et seq.]
may bring a civil action against the perpetrator (or whoever knowingly benefits,
financially or by receiving anything of value from participation in a venture which that
person knew or should have known has engaged in an act in violation of this chapter [18
USCS §§ 1581 et seq.]) in an appropriate district court of the United States and may
recover damages and reasonable attorneys fees.
18 U.S.C. § 1595(a). See also Shukla v. Sharma, 2009 U.S. Dist. LEXIS 90044, 31-32 (E.D.N.Y. Aug.
14, 2009) (holding individual plaintiff may seek remedy under 18 U.S.C. § 1590).
Defendants solely rely on cases that were superseded by 18 U.S.C. § 1595(a). In Buchanan v.
City of Boilvar, 99 F.3d 1352 (6th Cir. Tenn. 1996), the Sixth Circuit denied private causes of action
under 18 U.S.C. § 1584. Buchanan, 99 F.3d at 1357. Buchanan was decided twelve years before the
amendment to 18 U.S.C. § 1595(a), providing the exact private causes of action for § 1584 claims that
the Buchanan court found lacking.
While Chrysler Corp. v. Brown, 441 U.S. 281 (U.S. 1979), Aldabe v. Aldabe, 616 F.2d 1089
(9th Cir. Cal. 1980), and Lamont v. Haig, 539 F.Supp. 552 (D.S.D. 1982) hold that private causes of
action cannot be inferred from a criminal statute, these cases are inapposite here given the express
statutory private causes of action in 18 U.S.C. 1595(a). See Moving Brief, 3:22 - 4:4.
Defendants also rely on Del Elmer v. Metzger, 967 F.Supp. 398 (S.D.Cal. 1997), holding that
the Thirteenth Amendment does not give rise to independent causes of action against private parties.
Del Elmer, 967 F.Supp. at 402. Del Elmer is also inapposite because 18 U.S.C. §§ 1584, 1590, and
1595(a) support Plaintiff’s claims, not Defendants’ Thirteenth Amendment argument.
Finally, Craine v. Alexander, 756 F.2d 1070 (5th Cir. Miss. 1985) held that a claim of peonage
under 42 U.S.C. § 1994 requires allegation of state action. Craine, 756 F.2d at 1072. But Plaintiff
sues for “trafficking with respect to peonage, slavery, involuntary servitude, or forced labor” under 18
U.S.C. § 1590, not for peonage under 42 U.S.C. § 1994. Accordingly Defendants’ argument is again
unavailing.
1
2
3
4
5
6
7
8
9
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
-4- MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
DM_US:22990350_1
III. PLAINTIFF BROUGHT HER INVOLUNTARY SERVITUDE AND HUMAN
TRAFFICKING CLAIMS WITHIN THE 10-YEAR STATUTE OF LIMITATIONS
Defendants invite the court to “borrow [a statute of limitations] from the most analogous state
action” and recommend one year. See Moving Brief, 4:22 – 5:1. This Court should decline that
invitation, and instead apply the 10-year statute of limitations provided by 18 U.S.C. § 1595(c). See 18
U.S.C. § 1595(c) (“no action may be maintained under this section unless it is commenced no later
than 10 years after the cause of action arose.”) Plaintiff brought her § 1584 and § 1590 claims on
October 13, 2009, less than 2 years after she was rescued, and less than 8 years after she was
transported to Defendants’ home. Plaintiff’s claims under §§ 1584 and 1590 are not barred by the 10-
year statute of limitations.
IV. PLAINTIFF BROUGHT EMOTIONAL DISTRESS CLAIMS WITHIN THE 2-YEAR
STATUTE OF LIMITATIONS, WHICH DOES NOT RUN UNTIL SHE WAS
RESCUED FROM DEFENDANTS’ HOME
As Defendants acknowledge, the statute of limitations for negligent and intentional infliction of
emotional distress is two years. See Cal. Code Civ. P. § 335.1; Moving Brief, 5:16-18. Defendants
allege that Plaintiff failed to bring her emotional distress claims within 2 years from the date she
arrived at Defendants’ house, in 2002. Moving Brief, 5:21-6:8. Defendants’ argument neglects two
key facts: (1) Defendants’ actions eliminated Plaintiff’s ability to bring her claims before she was
rescued, and (2) Plaintiff’s emotional distress did not begin and end in 2002, but was ongoing through
2008. See First Amended Complaint, ¶¶13-15.
First, Defendants cannot benefit from a statute of limitations where their own actions prevented
Plaintiff from bringing her cause of action. To deter tortfeasors from escaping liability by restraining
the potential plaintiff until after the statute of limitations has run, both federal and California law
recognize equitable tolling of statutes of limitations “in the case of inability to bring suit or exercise
one’s remedy.” Partlow v. Jewish Orphans’ Home of Southern California, Inc., 645 F.2d 757, 760
(9th Cir. 1981), abrogated on other grounds, 493 U.S. 165 (1989); see also Lewis v. Superior Court,
175 Cal. App. 3d 366, 380 (Cal. App. 2d Dist. 1985) (“language of statutes of limitation must admit to
implicit exceptions where compliance is impossible and manifest injustice would otherwise result.”)
1
2
3
4
5
6
7
8
9
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
-5- MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
DM_US:22990350_1
Clearly, Plaintiff could not seek any remedy during the time she was held in involuntary servitude at
Defendants’ home. Therefore, the statute of limitations could not begin to run until Plaintiff was
rescued from Defendants’ home. See Bureerong v. Uvawas, 922 F. Supp. 1450, 1463 (C.D. Cal. 1996)
(tolling statute of limitations for false imprisonment claim until plaintiff was released from physical
restraint). Plaintiff brought suit in this Court only 15 months after she was rescued, well within the 2-
year period. The statute of limitations does not bar her emotional distress claims.
Second, as Defendants admit, “a cause of action accrues at the time when the cause of action is
complete with all of its elements.” Moving brief at 5:24-25. Defendants’ infliction of emotional
distress did not end and was thus not complete until Plaintiff was rescued in 2008, well within the 2-
year period.
V. PLAINTIFF BROUGHT THE CONVERSION CLAIM WITHIN THE 3-YEAR
STATUTE OF LIMITATIONS, WHICH DOES NOT RUN UNTIL SHE WAS
RESCUED FROM DEFENDANTS’ HOME
Defendants concede that the statute of limitations for conversion is 3 years. See Cal. Code Civ.
P. § 338. For the same reasons discussed above, Plaintiff was not able to bring her conversion claim
until she was rescued. Plaintiff timely brought her conversion claim within 3 years after she was
rescued. Thus, Plaintiff’s conversion claim is not barred by the statute of limitations. Furthermore,
while Defendants’ initial conversion of Plaintiff’s passport took place in 2005, the conversion would
be ongoing until the passport was returned and Defendants do not allege that they ever returned
Plaintiff’s passport.
///
///
///
///
///
///
///
///
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-6- MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
DM_US:22990350_1
CONCLUSION
18 U.S.C § 1595(a) explicitly provides private causes of action for Plaintiff’s Second and Third
claims and a 10-year statute of limitations. Defendants’ own actions prevented Plaintiff from bringing
her Fifth, Sixth, and Seventh causes of action until she was rescued, thus tolling the applicable statute
of limitations until July 2008. The Court should deny Defendants’ motion to dismiss.
Dated: December 21, 2009 HOWREY LLP
By: /s/Michael J. Stimson
Michael J. Stimson
HOWREY LLP
4 Park Plaza, Suite 1700
Irvine, CA 92614
Phone: (949) 759-3961
Fax: (949) 266-5887
stimsonm@howrey.com
Attorneys for Plaintiff ROSA ROMERO
HERNANDEZ
