Skrywer v. Imene-Chanduru

1

LOUREN SKRYWER, Plaintiff, v. JULIA IMENE-CHANDURU, et al. Defendants.

Civ. No. MJM-21-3007

United States District Court, D. Maryland

January 16, 2024

MEMORANDUM OPINION

MATTHEW J. MADDOX, UNITED STATES DISTRICT JUDGE

Louren Skrywer (“Plaintiff”) commenced this civil action against Julia Imene-Chanduru (“Ms Imene-Chanduru”), Simbarashe Britone Chanduru (“Mr. Chanduru”), and the Republic of Namibia (“Namibia”) (collectively “Defendants”) for involuntarily servitude, forced labor, indentured servitude and forced labor trafficking, and unlawful passport concealment and possession in violation of federal law.

Currently pending are two motions to dismiss for lack of jurisdiction-one by the individual defendants Ms Imene-Chanduru and Mr. Chanduru (collectively, the “Chandurus”), and the other by Namibia. The Court has reviewed all filings submitted by the parties and has determined that a hearing on the motions is not necessary. L. R. 105.6. The primary issues presented in the motions are whether Namibia has sovereign immunity from this suit under the Foreign Sovereign Immunities Act (“FSIA”) and whether Ms. Imene-Chanduru and Mr. Chanduru each has diplomatic immunity from this suit. Based on the facts and evidence presented, the Court concludes that Namibia has sovereign immunity under FSIA, and the commercial activity and tortious act exceptions do not apply in this case. However, neither Ms. Imene-Chanduru nor Mr. Chanduru has diplomatic immunity. Accordingly, Namibia's motion to dismiss shall be GRANTED, and the Chandurus' motion to dismiss shall be DENIED.

I. Factual Background^[1]

Plaintiff, a citizen of Namibia, came to the United States with Ms. Imene-Chanduru and Mr. Chanduru in 2007, after Ms. Imene-Chanduru was elevated to the post of First Secretary to the Namibian Embassy in Washington, D.C. Am. Compl. (ECF 63) ¶¶ 21-22. The Chandurus are a married couple. Id. ¶¶ 4-5. Plaintiff alleges that her family has been in a position of servitude to Ms. Imene-Chanduru's family for generations, often for little to no pay, and that she grew up working for Ms. Imene-Chanduru's family at their mansion in Namibia. Id. ¶¶ 11-16. Ms. Imene-Chanduru offered to bring Plaintiff to the United States to work as a nanny for her newborn daughter for $1,500 every two weeks (a salary far beyond what would be possible in their home country), plus health insurance, paid holidays, and weekends off. Id. ¶¶ 22-24. Plaintiff signed a written contract, but Ms. Imene-Chanduru refused to give her a copy. Id. ¶ 28. Ms. Imene-Chanduru handled Plaintiff's passport and A-3 visa applications. Id. ¶¶ 34-40. Plaintiff's only role in the process was obtaining a passport photo and participating in a visa interview at the United States consulate-and Ms. Imene-Chanduru accompanied Plaintiff in both instances. Id. ¶¶ 35, 38. Ms. Imene-Chanduru maintained complete physical control over Plaintiff's immigration papers, except for a few minutes during an immigration and customs check upon arrival in the United States. Id. ¶ 42.

From 2007 to 2011, while living at the Chandurus' residence in Silver Spring, Maryland, Plaintiff was subjected to physical isolation, emotional abuse, and forced labor. Id. ¶¶ 43-45. Plaintiff estimates that she was expected to work 18 hours a day, seven days a week. Id. ¶ 54. In addition to caring for the Chandurus' child at all times, Plaintiff was required to perform various domestic tasks for the Chandurus, to cater personal events for the Chandurus' friends and Namibian politicians at the residence, and to babysit children of guests in the basement of the Namibian Embassy during official functions. Id. ¶¶ 49-52. Despite working more hours than expected and performing tasks she had never agreed to, Plaintiff was paid substantially less than agreed upon in the contract, receiving $500 the first month and roughly $150 per month thereafter. Id. ¶¶ 55-60. The Chandurus also made deductions from Plaintiff's salary to cover her room and board, even though she shared a room with the Chandurus' infant child, these deductions had not been agreed upon in the contract, and the Namibian government was paying the rent for the residence. Id. ¶ 63. The Chandurus also did not cover Plaintiff's healthcare costs, contrary to the terms of the contract. Id. ¶ 61.

According to Plaintiff, the Chandurus were verbally abusive to her throughout their time living together, often mocking and belittling her, and regularly threatening to have her deported to Namibia. Id. ¶¶ 69-72. The Chandurus held onto her passport and visa and refused to return them to her, despite her requests on several occasions over the four-year period. Id. ¶¶ 78-80. Additionally, the Chandurus allowed Plaintiff's visa to expire and refused to renew it; would not permit her to obtain a supplemental source of income until late 2011; forbade her from obtaining a driver's license or credit card; and restricted her contact with outside individuals after the nanny for another diplomat caused Plaintiff to question her treatment by the Chandurus. Id. ¶¶ 81-92. After a heated argument with Mr. Chanduru in late 2011, Plaintiff demanded her passport so that she could leave. Id. ¶¶ 127-132. Mr. Chanduru acquiesced, and Plaintiff quickly packed some of her belongings and moved in with an acquittance in Burtonsville, Maryland. Id. ¶¶ 136-37.

Ms. Imene-Chanduru's post at the Namibian Embassy ended in December 2011, but she remained in the United States serving in various positions at the United Nations headquarters in New York until November 2020. Id. ¶¶ 148-50. In February 2021, Ms. Imene-Chanduru was assigned to a new position as Namibia's Permanent Representative to the United Nations in Geneva, Switzerland, where she and Mr. Chanduru have since resided. Id. ¶¶ 150-53.

II. Procedural History

On November 23, 2021, Plaintiff filed a Complaint against Ms. Imene-Chanduru, Mr. Chanduru, and Namibia, ECF 1, to which the Chandurus filed an Answer, ECF 24. On March 3, 2023, Namibia filed a motion to dismiss the Complaint for lack of jurisdiction. ECF 53. Plaintiff filed an Amended Complaint on March 17, 2023. ECF 63. On March 31, 2023, Namibia again filed a motion to dismiss for lack of jurisdiction, ECF 71, and the Chandurus filed a separate motion to dismiss for lack of subject matter jurisdiction on the same date, ECF 69. Plaintiff filed a response in opposition to each motion, ECF 78 & 86, to which the Chandurus and Namibia each filed a reply, ECF 82 & 91.

III. Standard of Review

A defendant may challenge a court's subject matter jurisdiction of a case by filing a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure.^[2] The plaintiff bears the burden of proving that the court indeed has jurisdiction over the matter. Demetres v. E. W.Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015) (citing Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999)). When subject matter jurisdiction is at issue, “the court is to regard the pleadings ‘as mere evidence on the issue, and may consider evidence outside the pleadings '” Burns v. Wash. Metro. Area Transit Auth., 488 F.Supp.3d 210, 213 (D. Md. 2020) (quoting Evans, 166 F.3d at 647)). This must be done without the court “drawing from the pleadings inferences favorable to the party asserting [jurisdiction].” Sac & Fox Nation of Okla. v. Cuomo, 193 F.3d 1162, 1168 (10th Cir. 1999) (quoting Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)); see also Norton v. Larney, 266 U.S. 511, 515-16 (1925) (“[T]he jurisdiction of a federal court must affirmatively and distinctly appear and cannot be helped by presumptions or by argumentative inferences drawn from the pleadings.”).

IV. Analysis

A. Sovereign Immunity

In its motion to dismiss, Namibia argues that, as a foreign state, it is immune from the claims asserted in this case. ECF 71. Based on the facts and evidence presented, the Court agrees and will grant the motion.

The Foreign Sovereign Immunities Act (the “FSIA”), codified at 28 U.S.C. §§ 1602-11, provides that foreign states are generally “immune from the jurisdiction of the courts of the United States and of the States” with limited exceptions. 28 U.S.C. § 1602. It is well established that foreign states have absolute immunity in United States courts except where provided by the FSIA. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). Where the FSIA applies, there is no other basis for federal jurisdiction over foreign states. See id. at 439. Although the FSIA covers more than foreign sovereigns themselves, also granting immunity to foreign state agencies and instrumentalities, it does not cover foreign officials. Samantar v. Yousuf, 560 U.S. 305, 314-19 (2010).

The FSIA was designed in part to “transfer primary responsibility for deciding ‘claims of foreign states to immunity' from the State Department to the courts.” Samantar, 560 U.S. at 313 (quoting 28 U.S.C. § 1602). Sovereign immunity constitutes a threshold question in litigation, and it should be addressed “as near to the outset of the case as is reasonably possible.” Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co., 581 U.S. 170, 174 (2017). Immunity is presumed for a foreign state. OBB Personenverkehr AG v. Sachs, 577 U.S. 27, 31 (2015). To overcome this presumption, a complaint must “set forth ‘sufficient facts to support a reasonable inference that [the] claims' satisfy one of the specific, enumerated exceptions in the FSIA.” France.com, Inc. v. French Republic, 992 F.3d 248, 252 (4th Cir. 2021) (quoting Rux v. Republic of Sudan, 461 F.3d 461, 468 (4th Cir. 2006)). If the plaintiff manages to do so, “the burden then shifts to the defendant to prove by a preponderance of the evidence that ...