United States District Court, D. Maryland
FAINESS B. LIPENGA, Plaintiff,
JANE N. KAMBALAME, Defendant.
J. Hazel United States District Judge.
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. 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
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.
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.
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. ECF No. 1 ¶ 14.
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.
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
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.
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
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.
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.
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. 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.
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
STANDARD OF REVIEW
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.
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
Trafficking Victims Protection Act
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 ...