Vinayagam v. US Dept Labor-Adminisrative Review Board

Opinion

5 * * *

6 NITHYA VINAYAGAM, Case No. 2:18-cv-01206-RFB-DJA

7 Plaintiff, ORDER 8 v.

LABOR ADMINISTRATIVE REVIEW 10 BOARD, et al.,

11 Defendants.

12 13 This matter is before the Court on Plaintiff Nithya Vinayagam’s Second Amended 14 Complaint (ECF No. 9), filed on August 16, 2019. On July 19, 2019, the Court granted 15 Plaintiff’s request to proceed in forma pauperis and dismissed his Amended Complaint with leave 16 to amend. (ECF No. 7). Plaintiff then timely filed the instant Second Amended Complaint, 17 which the Court will now screen. 19 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 20 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable 21 claims and dismiss claims that are frivolous, malicious, file to state a claim on which relief may 22 be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 23 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 24 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 25 668 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain 26 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 27 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints 1 in support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 2 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of 4 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 5 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 6 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 7 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 8 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 9 Further, a Court may dismiss a claim as factually frivolous if its allegations are “clearly baseless, 10 a category encompassing allegations that are fanciful, fantastic, and delusional.” Denton v. 11 Hernandez, 504 U.S. 25, 32–33 (1992) (internal citations and punctuation omitted). Unless it is 12 clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff 13 should be given leave to amend the complaint with notice regarding the complaint’s deficiencies. 14 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 15 Here, Plaintiff’s Second Amended Complaint (ECF No. 9) is 107 pages that appears to 16 assert 17 claims stemming from her recruitment to work in Georgia by Eis Technologies, which 17 later became Cronous, Inc. She traveled from India for a Senior Consultant position, but claims 18 she was not paid her full wages and the Company shut down without securing her visa. She filed 19 a wage and hour complaint with the Department of Labor in Atlanta, which was decided against 20 her and she appealed up to the Circuit. Further, Plaintiff secured back wages as a result of a 21 settlement of a civil lawsuit filed in Georgia. Plaintiff now attempts to challenge the alleged visa 22 fraud and fraud in foreign labor contracting that she claims was done by the owners of Cronous, 23 Inc. She also attempts to assert perjury, wire fraud, mail fraud, prohibition of indemnity bonds, 24 forced labor, wage violations, false statements, misuse of visa, retaliation, fraud, loss of 25 immigration status, defamation, negligence, appeal of the ARB decision, and personal liability 26 claims. 27 The Court has a duty to ensure that it has subject matter jurisdiction over the dispute 1 12(h)(3). Federal courts are courts of limited jurisdiction and possess only that power authorized 2 by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). “A federal court is 3 presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” 4 Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 5 1989). “The party asserting federal jurisdiction bears the burden of proving that the case is 6 properly in federal court.” McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing 7 McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). 8 Here, it is not clear that the Court can assert jurisdiction – subject matter and personal – 9 over the parties and claims at issue. Moreover, there appears to be significant venue and res 10 judicata issues. Plaintiff indicates that she has already challenged the wage issues with the Depart 11 of Labor and appealed through their administrative process and the Circuit. As such, such claims 12 would be precluded from being challenged with this lawsuit. Moreover, the other claims against 13 the owners of Cronous, Inc. are not in the appropriate venue as all of the events appear to have 14 taken place in Georgia and the Court would not have personal jurisdiction over the individuals 15 named in the second amended complaint. Moreover, to the extent that Plaintiff challenges a visa 16 denial, that would be need to be done through the administrative process. The Court will given 17 Plaintiff one more chance to amend to correct these deficiencies to the extent she thinks she can. 18 If plaintiff chooses to file an amended complaint, the document must be titled “Third 19 Amended Complaint.” The third amended complaint must contain a short and plain statement 20 describing the underlying case, the defendant’s involvement in the case, and the approximate 21 dates of its involvement. See Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of Civil 22 Procedure adopt a flexible pleading standard, plaintiff still must give defendants fair notice of her 23 claims against them and her entitlement to relief. Plaintiff is advised that if she files an amended 24 complaint, the second amended complaint (ECF No. 9) no longer serves any function in this case. 25 As stated above, the amended complaint must be complete in and of itself without reference to 26 prior pleadings or other documents. 27 / / / 2 IT IS THEREFORE ORDERED that the second amended complaint (ECF No. 9) is 3 DISMISSED without prejudice for failure to state a claim upon which relief can be granted, with 4 leave to amend. 5 IT IS FURTHER ORDERED that Plaintiff shall have until April 23, 2020, to file an 6 amended complaint. Failure to file an amended complaint will result in a recommendation that 7 this case be dismissed. 8 DATED: March 23, 2020

UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27