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Fun v. Pulgar

United States District Court, D. New Jersey

January 14, 2014

MARIA RIOS FUN, Plaintiff,
v.
MARITA PUERTAS PULGAR and ALEXIS AQUINO ALBEGRIN, Defendants

For MARIA RIOS FUN, Plaintiff: KEVIN HARRY MARINO, LEAD ATTORNEY, JOHN D. TORTORELLA, MARINO TORTORELLA & BOYLE, PC, CHATHAM, NJ.

For MARITA PUERTAS PULGAR, ALEXIS AQUINO ALBEGRIN, Defendants: LAWRENCE C. HERSH, LEAD ATTORNEY, RUTHERFORD, NJ.

OPINION

Page 471

STANLEY R. CHESLER, United States District Judge.

This matter comes before the Court on Defendants' Motion to Dismiss the Complaint and Quash Service of Process on the grounds that Defendants are diplomatically immune from suit. Plaintiff Maria Rios Fun, a domestic worker from Peru, brought this suit against her former employers, Marita Puertas Pulgar, Marita Pulgar's partner, Alexis Aquino Albegrin, and Marita Pulgar's mother, Angelica Pulgar. Plaintiff brings suit under federal and New Jersey RICO laws, the Trafficking Victims Protection Act of 2000, the Fair Labor Standards Act (" FLSA" ), New Jersey State Labor Laws, N.J. Stat. § § 34:11-56a4, 34:11-56a25, and for common law breach of contract, conversion, fraud, and unjust enrichment. Plaintiff also seeks a restraining order against Defendants on the basis of harassment. For the reasons explained below, the Court grants Defendants' motions and dismisses

Page 472

the complaint without prejudice to re-file the claims when the Defendants are no longer diplomatically immune from suit.

I. BACKGROUND

Plaintiff alleges that Defendant Angelica Pulgar initially invited her around December 2011 or January 2012 to be a domestic worker in Defendants' household. (Compl. 9). Defendant Puertas Pulgar followed up on her mother's offer in August or September 2012 to formally offer Plaintiff the position of live-in domestic worker for Defendants, which Plaintiff accepted. (Compl. 9). Plaintiff alleges that Defendants described favorable terms and working conditions and supplied her with an employment contract (the " Contract" ) in September 2012 that Defendants had no intention of honoring. (Compl. 9). The Contract contained detailed provisions covering all aspects of Plaintiff's employment. (Compl. 10-14). The Defendants purchased and arranged for Plaintiff's transportation to the United States, and arranged for her to obtain a passport and visa. (Compl. 10). Once Plaintiff arrived in the United States, Defendants confiscated her passport and put her immediately to work. (Compl. 10). Plaintiff alleges, in sum, that Defendants' actions created a human trafficking and alien harboring enterprise in order to take advantage of her service as an underpaid domestic servant. (Compl. 8). On April 27, 2013, Plaintiff was permitted to take a day off and contacted the National Human Trafficking Resource Center hotline, and upon information provided to her decided not to return to the Defendants' New Jersey home. (Compl. 21-22).

Plaintiff initially filed this suit against Defendants on June 13, 2013, seeking damages and injunctive relief for being trafficked into the United States by Defendants and forced to work against her will as their domestic servant for over six months. Defendants Puertas Pulgar and Aquino Albegrin were served on June 14, 2013, and filed a motion to quash service of process and dismiss the complaint, asserting that each are members of the " diplomatic staff" of the Permanent Mission of Peru to the United Nations and entitled to absolute diplomatic immunity under the Vienna Convention of 1961. (Def.'s Br. at 2). Defendants' Motion also relies upon a decision from the United States Court of Appeal for the Fourth Circuit, Tabion v. Mufti, 73 F.3d 535 (4th Cir. 1996), which expressly holds that the commercial activity exception in Article 31 of the Vienna Convention applies to conduct undertaken for profit, and employment of a domestic servant does not void diplomatic immunity. See id. at 538.

The Court received a letter from the United States Mission to the United Nations in New York dated June 25, 2013, that certifies the status of Defendants Puertas Pulgar and Aquino Albegrin as Counselors to the Permanent Mission of Peru to the United Nations and as diplomatic agents entitled to immunity. (Brennwald Dec. at 1). On June 30, 2013, Defendant Aquino Alebgrin's post as Counselor was allegedly terminated by the Peruvian Mission. (Pl.'s Br. at 2). Plaintiff then filed an Amended Complaint on July 22, 2013; the validity of its service is the subject of the present dispute. Defendants filed the current Motion to Dismiss Plaintiff's First Amended Complaint on August 5, 2013.

II. DISCUSSION

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. ยง 1351, which states that district courts " have original jurisdiction, exclusive of the courts of the States, of all civil ...


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