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Zaklit v. Global Linguist Solutions, LLC

United States District Court, E.D. Virginia, Alexandria Division

September 16, 2014

ALFRED ZAKLIT, et al., Plaintiffs,

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For Alfred Zaklit, each of them individually and on behalf of all others similarly situated, Hany Shaker, each of them individually and on behalf of all others similarly situated, Mokhtar Farag, each of them individually and on behalf of all others similarly situated, Plaintiffs: Brent S Buchsbaum, Gary R Carlin, Laurel N Haag, Sang J Park, LEAD ATTORNEYS, The Law Offices of Carlin and Buchsbaum LLP, Long Beach, CA; John B. Simpson, Robert Emmet Byrne, Jr., MartinWren PC, Charlottesville, VA.

For Global Linguist Solutions, LLC, a Delaware Company, Defendant: Jason Craig Schwartz, LEAD ATTORNEY, Jason C Schwartz, Gibson Dunn & Crutcher LLP, Washington, DC; Katherine V.A. Smith, LEAD ATTORNEY, Gibson Dunn and Crutcher LLP, Los Angeles, CA; Andrea Ruth Lucas, Anna Maria McKenzie, Gibson Dunn & Crutcher LLP (DC), Washington, DC; Molly T Senger, PRO HAC VICE, Gibson Dunn & Crutcher LLP, Washington, DC.

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This matter is before the Court on Defendant Global Linguist Solutions, LLC's (" Defendant" or " GLS" ) Motion to Dismiss the Second Amended Complaint [Dkt. 113] and Motion to Strike Plaintiffs' Jury Demand [Dkt. 115]. For the following reasons, the Court will grant in part and deny in part Defendant's Motion to Dismiss the Second Amended Complaint and will grant Defendant's Motion to Strike Plaintiffs' Jury Demand.

I. Background

A. Factual History

A detailed summary of the facts of this case is set forth in this Court's July 8 Memorandum Opinion granting in part and denying in part Defendant's Motion to Dismiss the Amended Complaint [Dkt. 100]. Briefly, Defendant provides translation and interpretation services to the United States Army. (Second Am. Compl. [Dkt. 102] ¶ ¶ 11-12). Plaintiffs are linguists who either currently work or have worked for Defendant in Kuwait. ( Id. ¶ ¶ 2-4, 11-12.) Plaintiffs were deployed to Kuwait in mid-2012 to work on U.S. Army bases, initially under contract with one of Defendant's subcontractors, Engility. ( Id. ¶ ¶ 14, 22.)[1] Plaintiffs allege that immediately upon arrival in Kuwait, Defendant " took their passports" to obtain work visas from its Kuwaiti sponsor, Al Shora International General Trading & Contracting (" Al Shora" ). ( Id. ¶ 16.) Furthermore, Plaintiffs allege that Defendant " prohibited Plaintiffs from working or leaving the [Army bases] for medical appointments, personal time, or even emergency matters." ( Id. ¶ 19.) According to Plaintiffs, " [t]hey were told by GLS that they would be arrested, imprisoned, and/or deported by the Kuwaiti government if they left the camp." ( Id.) Conditions in the camp were " abominable" and " substandard." ( Id. ¶ 20.) " Forty Linguists were assigned to live in one 3,000-square-feet tent with limited air condition, running water and electricity." ( Id.)

When Defendant was awarded a new contract with the U.S. Army, it changed two key contractual relationships. First, in early December 2012 it sought to terminate its local sponsorship agreement with Al Shora, leading to a dispute between the two companies over whether such termination was effective. ( Id. ¶ 28.) Second, it contracted directly with Plaintiffs in late January 2013. ( Id. ¶ 28.)

Plaintiffs' case revolves around these changes. First, Plaintiffs allege they were not aware that Defendant and Al Shora were involved in a contract dispute. ( Id. ¶ 28(f).) According to Plaintiffs, when they signed Defendant's 2013 employment contracts " GLS's employment of Plaintiffs in Kuwait was unlawful since GLS was unable to obtain Al Shora's agreement to continue sponsoring Plaintiffs for GLS or to transfer their sponsorship to another Kuwaiti entity." ( Id. ¶ 28(d).) This lack of sponsorship was material and Plaintiffs contend they would not have signed the employment contracts had they known their sponsorship was in doubt. ( Id. ¶ 28(g).)

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Second, Plaintiffs allege that Defendant " forced Plaintiff to sign new form employment contracts directly with GLS under [the abovementioned] horrid conditions." ( Id. ¶ 22.) Plaintiffs claim that the new contracts removed many benefits from their prior contracts with Engility. ( Id. ¶ 23.) According to Plaintiffs, Defendant " expressly told" them to " sign the form without reading anything." ( Id. ¶ 24.) Plaintiffs " did not believe the form was a contract because they had no opportunity to negotiate the terms of the agreement [nor were] given a choice not to sign it." ( Id. ¶ 25.)

Additionally, Defendant " never suggested to them that they should discuss the terms with a lawyer." ( Id. ¶ 25.) Plaintiffs felt " they had no choice but to sign the form because GLS threatened to kick them off the base, [subjecting] them to immediate arrest and detention by Kuwaiti official [sic] if they did not sign the form." ( Id. ¶ 26.) At the time they signed the contracts, Plaintiffs " were under GLS's total control and domination because [GLS] held their passports." ( Id. ¶ 27.) Plaintiffs were also " ill from the abominable living conditions[.]" ( Id.) " So [Plaintiffs] reluctantly signed the form without assenting to its terms." ( Id. ¶ 27.)

B. 2013 Contract with Defendant

As noted above, Plaintiffs signed new employment contracts directly with Defendant. These contracts are uniform and contain a " Governing Law" section. This section, first found in Section 18 of the contract, contains a jury waiver provision.[2] ( See Def.'s Mot. to Dismiss Mem. [Dkt. 114], Phillips Decl., Ex. 1.) It states " [b]oth parties hereby agree and consent to waive the right to a trial by jury." ( Id. at 8.)[3]

Section 9 of Attachment A to the contract provides as follows: " This Agreement shall be governed by and interpreted under the laws of the Commonwealth of Virginia of the United States of America." ( Id. at 11.) Section 18 contains a cross-reference to the Governing Law provision in Attachment A. ( Id. at 8.)

In addition to this section, the contracts make clear that Plaintiffs are at-will employees. The contracts specifically state that GLS has the right " at its sole discretion" to terminate its employment relationship with Plaintiffs " without cause at any time" and that Plaintiffs likewise " may voluntarily terminate this Agreement at any time." ( Id.) Additionally, Defendant will " provide return transportation from the Employee's work location to the IRDO [Individual Replacement Deployment Operations] for theater outprocessing if this Agreement is terminated," ( id. at 8), but cautioned that " [t]ravel could be significantly restricted, delayed or made more difficult by operational requirements of the military or by restrictions imposed by civil authorities[.]" ( Id. at 4.) The contracts also provide that " this assignment carries the risk of bodily harm/death," and " [l]iving conditions at the assignment location could be remote and uncomfortable." ( Id.)

The contracts outline employee benefits. Under the contracts, the positions are salaried. ( Id. at 4.) The standard work schedule is set at twelve hours a day, six days per week, which could be more or less at the Defendant's discretion. ( Id. at 11.) Per the terms of the contract, employees are not entitled to any overtime pay. ( Id. at 2.) Nor are employees entitled to salary

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for " any time not worked by reason of illness, injury, disability, or any other medical reason." ( Id. at 5.) Paid time off (" PTO" ) accrues on a biweekly basis, with five days of PTO for twelve months of service based on a twelve hour work day and a six day work week. ( Id. at 11.)

C. Procedural History

In the July 8 Memorandum Opinion, this Court granted in part and denied in part Defendant's Motion to Dismiss the Amended Complaint. As a threshold matter, the Court rejected Plaintiffs' arguments that Kuwaiti law applied. Instead, giving full force to the choice-of-law provision contained in the employment contracts, Virginia law applied to the case. (July 8 Mem. Op. at 21-30.) Nine of the eleven causes of action were dismissed; only the false imprisonment and fraud claims survived. ( Id. at 53.) The Court granted Plaintiffs' leave to file a second amended complaint and reserved ruling on the motion to strike until the Second Amended Complaint was filed. ( Id.)

In the Second Amended Complaint now before the Court, Plaintiffs allege eight causes of action: false imprisonment (" Count 1" ); intentional infliction of emotional distress (" Count 2" ); negligent infliction of emotional distress (" Count 3" ); fraud (" Count 4" ); rescission (" Count 5" ); promissory fraud (" Count 6" ); breach of contract (" Count 7" ); and violation of Kuwaiti labor law (" Count 8" ).

Defendant has moved to dismiss the Second Amended Complaint in its entirety and strike Plaintiffs' jury demand. Having been fully briefed and argued, Defendant's motions are now before the Court.

II. Standard of Review

" A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint[.]" Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). The Supreme Court has stated that in order " [t]o survive a motion to dismiss, a [c]omplaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The issue in resolving such a motion is not whether the non-movant will ultimately prevail, but whether the non-movant is entitled to offer evidence to support his or her claims.

" Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (citations omitted). While legal conclusions can provide the framework for a complaint, all claims must be supported by factual allegations. Id. Based upon these allegations, the court will determine whether the plaintiff's pleadings plausibly give rise to an entitlement to relief. Id. To survive a motion to dismiss, a plaintiff's complaint must demand more than " an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Legal conclusions couched as factual allegations are not sufficient. Twombly, 550 U.S. at 555. Hence, a pleading that offers only " formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557. Nor will a complaint that tenders mere " naked assertion[s]" devoid of

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" further factual enhancement." Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557.

Moreover, the plaintiff does not have to show a likelihood of success on the merits. Rather, the complaint must merely allege - directly or indirectly - each element of a " viable legal theory." Twombly, 550 U.S. at 562-63. At the motion to dismiss stage, the court must construe the complaint in the light most favorable to the plaintiff, read the complaint as a whole, and take the facts asserted therein as true. Iqbal, 556 U.S. at 678.

III. Analysis

A. Choice of Law

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