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Lipenga v. Kambalame

United States District Court, D. Maryland

November 9, 2016



          George J. Hazel United States District Judge.

         This case arises out of the alleged "illegal trafficking, forced labor, and tortious treatment" of Plaintiff Fainess Bertha Lipenga (""Plaintiff" or "Ms. Lipenga") by Defendant Jane Ngineriwa Kambalame ("Defendant" or "Ms. Kambalame"). ECF No. 1 ¶ l.[1] Following Ms. Kambalame's failure to plead or otherwise defend in this action, the Clerk entered an Order of Default against her. ECF No. 21. Presently pending before the Court is Plaintiffs Motion for Default Judgment, ECF No. 23. No hearing is necessary. Local Rule 105.6 (D. Md.). For the following reasons. Plaintiffs Motion for Default Judgment is granted, in part, and denied, in part, and damages are awarded in the sum of $1, 101, 345.20, plus reasonable attorney's fees.[2]

         I. BACKGROUND

         Fainess Lipenga is a citizen of Malawi and lawful permanent resident of the United States, now residing in Prince George's County. Maryland. ECF No. 1 ¶ 9. Jane Kambalame is currently the High Commissioner to the Republic of Zimbabwe and the Republic of Botswana for the Republic of Malawi. Id. ¶ 10. Ms. Kambalame served as a diplomat at the Embassy of the Republic of Malawi in Washington, D.C. from May 2004 to January 2012. Id.

         Ms. Lipenga began working for Ms. Kambalame in 2002 as a domestic servant at Ms. Kambalame's home in Malawi. Id. ¶ 11. At that time, Ms. Lipenga had an eighth grade education and did not speak English. Id. Ms. Lipenga's duties in the Kambalame home included caring for Ms. Kambalame's young daughter and doing the family's laundry. Id. Ms. Lipenga typically worked from 9:00 am to 8:00 pm, with Saturday evenings and Sundays off. Id. In 2004. Ms. Kambalame was assigned to work at the Embassy of Malawi in Washington, D.C. Id. ¶ 12. Ms. Kambalame asked Ms. Lipenga to move to the United States with her and continue working for the family. Id. Ms. Kambalame assured Ms. Lipenga that her duties in the U.S. would be similar to those she performed in Malawi, and promised that Ms. Lipenga would enjoy fair working conditions, appropriate compensation, and the opportunity to learn English and further her education. Id.

         Three weeks before leaving Malawi, Ms. Kambalame presented Ms. Lipenga with several documents written in English. Id. ¶ 13. Ms. Lipenga could not read or understand the documents at the time, but Ms. Kambalame demanded that she sign them quickly so that she could obtain Ms. Lipenga's visa. Id. One of these documents was a Contract of Employment, dated May 18, 2004 (-'the Contract"). Id. ¶ 14; ECF No. 1-1. The Contract stated that Ms. Lipenga would be paid $980 per month, work 35 hours per week, and receive overtime pay "for each hour worked beyond the weekly agreed hours." Id. Ms. Lipenga was to be entitled two days off per week and paid holidays for two weeks a year. Id. The contract also stated that Ms. Kambalame, as Ms. Lipenga's employer, would cover Ms. Lipenga's medical expenses and provide her with paid sick leave. Id. The contract guaranteed that Ms. Lipenga would always retain control of her own passport and immigration documents. Id. Both Ms. Kambalame and Ms. Lipenga signed the Contract. Id. ¶ 13-14; ECF No. 1 -1. Ms. Kambalame submitted the Contract to the United States Embassy as part of the application for Ms. Lipenga's A-3 visa.[3] ECF No. 1 ¶ 14.

         While at the airport in South Africa en route to the United States. Ms. Kambalame informed Ms. Lipenga that she had lied to the U.S. Embassy, claiming that she was related to Ms. Lipenga in order to obtain her visa. Id. ¶ 15. Ms. Kambalame told Ms. Lipenga if she did not confirm with immigration officials that she was related to Ms. Kambalame, Ms. Kambalame would abandon her in South Africa. Id. In fear, Ms. Lipenga acquiesced to Ms. Kambalame7s demands. When they arrived in the United States, Ms. Kambalame took Ms. Lipenga's passport from her. Id. ¶ 16. Ms. Kambalame told Ms. Lipenga that if she ever left her employment, Ms. Kambalame would have her deported. When Ms. Lipenga later asked Ms. Kambalame to help renew her visa, Ms. Kambalame refused. Ms. Kambalame informed Ms. Lipenga that because of her diplomatic status, she could never get in trouble with the authorities. Id. ¶ 18.

         On most days, Ms. Lipenga worked at the home from 5:30 a.m. to 11:00 p.m. ECF No. 1 ¶ 19. Occasionally, she was permitted to attend church on Sunday mornings. Id. Ms. Kambalame often required Ms. Lipenga to work additional hours late into the night when the family was entertaining guests. Id. Sometimes, Ms. Lipenga had to work on no sleep at all. Id. Ms. Lipenga's salary varied; for the first few months, Ms. Kambalame did not pay her at all. Id. ¶ 20. After that, Ms. Lipenga received between $100 and $180 per month, id. Based on Ms. Lipenga's schedule, that equaled less than 50 cents per hour. Id. The federal minimum wage during this time was $5.15 per hour. 29 U.S.C. 206(a)(1) (2006). The Maryland minimum wage was $5.15 per hour from 2004 through February 15, 2006. and increased to $6.15 per hour on February 16, 2006. Md. Code Ann., Lab. & Empl. § 3-413 (West 2006).

         Ms. Lipenga alleges that Ms. Kambalame subjected her to grievous working conditions and psychological abuse during her nearly three-year period of employment. ECF No. 1 ¶ 21. In addition to caring for Ms. Kambalame's daughter, Ms. Lipenga was required to cook all meals for the family, clean the entire house every day, serve tea upon request, wash, iron, and fold laundry, and shovel snow. Id. ¶ 22. Ms. Kambalame frequently berated and belittled Ms. Lipenga while she worked. Id. Ms. Kambalame would tell Ms. Lipenga that she could not do anything right and was not worth all that Ms. Kambalame provided for her. Id. In late 2006. Ms. Kambalame began filming Ms. Lipenga, causing Ms. Lipenga to cry on camera, and then using the footage to further torment Ms. Lipenga. Id. ¶ 26. Ms. Kambalame would not allow Ms. Lipenga to use the family's shampoo or soap, as to avoid "contaminating" the family's belongings. Id. For the latter part of her employment, Ms. Kambalame required Ms. Lipenga to sleep in the basement on a wooden floor with only one pillow and a blanket. Id. ¶ 19.

         Ms. Lipenga had to ask for permission to leave the house and tell Ms. Kambalame where she was going. Id. ¶ 23. In late 2006, Ms. Kambalame installed a lock on the house with an entry code, and refused to give Ms. Lipenga the code, effectively confining Ms. Lipenga to the house unless someone was home to let her back in. Id. Ms. Kambalame eavesdropped on Ms. Lipenga's phone calls, and disconnected the phone when she left the house, so Ms. Lipenga could not contact anyone. Id. ¶ 24. Ms. Kambalame humiliated Ms. Lipenga in the presence of other people, by falsely accusing her of stealing from the family and sleeping with Ms. Kambalame's live-in boyfriend. Id. If 25. These rumors embarrassed Ms. Lipenga and alienated her from other members of the local Malawian community. Id.

         As a result of these working conditions and emotional abuse, Ms. Lipenga became very ill and depressed. ECF No. 1 ¶ 27. She developed a cough and a rash over her entire body. Id. Ms. Kambalame refused to let Ms. Lipenga see a doctor for several weeks and forced her to continue working the same hours. Id. Ms. Kambalame eventually allowed Ms. Lipenga to see a doctor-friend of the family, who prescribed her only a skin cream for her rash. Id. Ms. Lipenga's health continued to deteriorate to the point that she feared she would die if she did not escape Ms. Kambalame's control. Id. ¶ 29.

         Ms. Lipenga escaped the Kambalame household early in the morning on January 20, 2007 while Ms. Kambalame was asleep. ECF No.1 ¶ 30. She fled to the home of a fellow Malawian domestic worker who spoke English and helped her find work with another family in Maryland. Id. Ms. Lipenga was only able to work for two months before she became gravely ill. Id. Ms. Lipenga was hospitalized and subsequently diagnosed with tuberculosis, HIV, and depression, all of which had gone untreated for years. Id. Ms. Kambalame arrived at the hospital unexpectedly, castigating Ms. Lipenga for absconding, and demanding that she return to the house when she was discharged. Id. ¶ 30-31. Other members of the Malawian community informed Ms. Lipenga that Ms. Kambalame was planning on having Ms. Lipenga deported, causing her to suffer additional anxiety and fear. /#. ¶ 31.

         In 2009. a social worker assigned to Ms. Lipenga put her in touch with a. pro bono human rights legal clinic. ECF No. 1 ¶ 32. With the clinic's help, Ms. Lipenga was able to obtain a T visa.[4] In granting her a T visa, the Department of Homeland Security reviewed Ms. Lipenga's case and made an administrative finding that she was "a victim of a severe form of trafficking in person." Id. Ms. Lipenga obtained permanent residency in the United States in 2011. Id. Ms. Kambalame remained in the United States until January 2012. Id. ¶ 33. On Plaintiffs information and belief, Ms. Kambalame now resides in Zimbabwe, but maintains a home in Malawi. Id.

         Plaintiff filed the instant complaint on December 19, 2014. ECF No. 1; ECF No. 17 at 1. Plaintiff attempted, but was unable to locate and serve Defendant at her personal address in Malawi. See ECF No. 17 at 2. Plaintiff also sent a request for service to the Malawian Central Authority, in accordance with Fed.R.Civ.P. 4(f) and Articles 3 and 5 of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638. Id. Despite email correspondence with a representative of the Malawian High Court in May 2015, confirming that service was effected upon Ms. Kambalame. Plaintiff never received an official certificate of service. Id. at 3. On December 28, 2015, this Court declined to enter default against Defendant, but ordered Plaintiff to serve Ms. Kambalame with alternative process by sending copies of the summons, Complaint, and the Court's Memorandum Opinion and Order to Ms. Kambalame's email address and Facebook account. ECF No. 18. Plaintiff complied with the Court's Order on December 30, 2015. ECF No. 19. Ms. Lipenga again moved for an entry of default on January 28, 2016, which the Clerk entered against Ms. Kambalame on March 4, 2016. ECF No. 21. Plaintiff filed the presently pending Motion for Default Judgment on April 25, 2016. ECF No. 23. Defendant has not responded or participated in this case.


         "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a). "A defendant's default does not automatically entitle the plaintiff to entry of a default judgment; rather, that decision is left to the discretion of the court." Educ. Credit Mgmt. Corp. v. Optimum Welding, 285 F.R.D. 371, 373 (D. Md. 2012). The Fourth Circuit has a "strong policy" that "cases be decided on their merits." Dow v. Jones, 232 F.Supp.2d 491, 494 (D. Md. 2002) (citing United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993)). However, default judgment may be appropriate where a party is unresponsive. Optimum Welding, 285 F.R.D. at 373.

         In deciding whether to render default judgment, "the well-pled allegations in a complaint as to liability are taken as true, but the allegations as to damages are not." Id. (citing S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005)). Thus, the court first determines whether the unchallenged factual allegations constitute a legitimate cause of action. Agora Fin., LLC v. Sarnler, 725 F.Supp.2d 491, 494 (D. Md. 2010). If liability is established, the court then makes an independent determination of damages. Id. The court may hold a hearing on the amount of damages, or instead may rely on "detailed affidavits or documentary evidence." Optimum Welding, 285 F.R.D. at 374. The relief granted in a default judgment "must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Id.

         III. ANALYSIS

         A. Liability

         i. Trafficking Victims Protection Act

         The Trafficking Victims Protection Reauthorization Act (TVPRA), 18 U.S.C. §§ 1581 et seq. prohibits peonage, slavery, and trafficking in persons. Victims of human trafficking have a civil cause of action against the perpetrator in district courts of the United States, and may recover damages and reasonable attorney's fees. § 1585. A defendant is liable under § 1589(a) of the TVPRA when she "'knowingly provides or obtains the labor or services of a person" by any of the following means:

(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person ...

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