Vinayagam v. US Dept Labor-Adminisrative Review Board ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 NITHYA VINAYAGAM, Case No. 2:18-cv-01206-RFB-DJA 8 Plaintiff, 9 ORDER v. 10 US DEPARTMENT OF LABOR, 11 ADMINISTRATIVE REVIEW BOARD, et. al., 12 Defendants. 13 14 Before the Court for consideration is Plaintiff Nithya Vinayagam’s MOTION to Amend 15 20 Amended Complaint (ECF No. 26). 16 17 18 I. BACKGROUND 19 On July 2, 2018, Plaintiff filed a motion to proceed in forma pauperis (“IFP”), attaching 20 her Complaint against Defendants. ECF No. 1. After denying and allowing her to refile the IFP 21 motion, the Court granted the motion on July 19, 2019. ECF Nos. 3, 4, 7. In that same order, the 22 Court dismissed her first amended complaint, finding that it failed to state a claim upon which 23 24 relief could be granted. The Court granted her leave to file an amended complaint. See ECF No. 25 7. Plaintiff filed her second amended complaint on August 16, 2019. Once again, the Court 26 dismissed the complaint without prejudice for failure to state a claim upon which relief could be 27 granted. ECF No. 11. The Court’s March 23, 2020 Order noted that it was unclear, based on the 28 1 allegations, whether it could even assert subject matter and personal jurisdiction over this action. 2 Further, there appeared to be significant venue and res judicata issues. Id. As a result, the Court 3 allowed Plaintiff to file an amended complaint by April 23, 2020. Id. Plaintiff failed to comply, 4 and Magistrate Judge, Daniel J. Albregts, submitted a Report and Recommendation on April 27, 5 6 2020, recommending dismissal of this action without prejudice for failure to comply. ECF No. 12, 7 15. Without any response to the Report and Recommendation, the undersigned agreed with Judge 8 Albregts. See ECF No. 15. 9 On August 3, 2020, Plaintiff filed a motion to vacate the Court’s Judgment, following 10 dismissal of her action. ECF No. 17. She asserted that she was not able to respond to the Report 11 12 and Recommendation because the COVID-19 pandemic had disrupted international mail 13 exchanges, and therefore Plaintiff requested that she be allowed to file her third amended 14 complaint. Id. The Court found this constituted a reasonable excuse and granted Plaintiff partial 15 relief from the Judgment to determine whether an amended complaint could cure the deficiencies 16 in her earlier pleadings. ECF No. 18. Plaintiff was given an opportunity to file a motion for 17 18 reconsideration with her proposed third amended complaint for the Court’s consideration. Id. 19 On May 29, 2021, Plaintiff filed a motion for reconsideration and an amended complaint. 20 ECF Nos. 19, 20. On March 31, 2022, the Court evaluated Plaintiff’s third amended complaint and 21 found that it violated Federal Rules of Civil Procedure 8, 10, 18, and 20. ECF No. 25. Nevertheless, 22 the amended complaint appeared to state at least some claims which it could recognize. The Court, 23 24 however, was still unable able to discern Plaintiff’s claims and which Defendants the claims were 25 brought against. Id. Accordingly, the Court granted Plaintiff’s motion for reconsideration in part, 26 allowing Plaintiff one final opportunity to file a complaint that followed the Federal Rules of Civil 27 / / / 28 1 Procedure. Id. Plaintiff then filed the instant motion to amend the complaint, attaching the 2 proposed Fourth Amended Complaint. See ECF No. 26. 3 This Order follows. 4 5 6 II. LEGAL STANDARD 7 A complaint filed in federal court must contain “a short and plain statement of the claim 8 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1). Each allegation must be 9 simple, concise, and direct. Each claim must be stated in numbered paragraphs, and each numbered 10 paragraph limited as far as practicable to a single set of circumstances. Fed. R. Civ. P. 10. Pursuant 11 12 to Federal Rule if Civil Procedure 20(a)(2), Defendants may only be permissively joined in one 13 action if: “(A) any right to relief is asserted against them jointly, severally, or in the alternative 14 with respect to or arising out of the same transaction, occurrence, or series of transactions or 15 occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” 16 Amendment of pleadings, if requested before the deadline to do so, is governed by Rule 15 17 18 of the Federal Rules of Civil Procedure. AmerisourceBergen Corp. v. Dialysist West, Inc., 465 19 F.3d 946, 952 (9th Cir. 2006). Rule 15 states that courts should freely grant a party leave to amend 20 “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Courts are to apply this policy with “extreme 21 liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). In 22 general, leave to amend under Rule 15 should be denied only where there is a “showing of bad 23 24 faith, undue delay, futility, or undue prejudice to the opposing party”—considerations commonly 25 referred to as the Foman factors. Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1152 26 (9th Cir. 2011); Foman v. Davis, 371 U.S. 178, 182 (1962). 27 28 1 III. DISCUSSION 2 As a preliminary matter, the Court does not find that granting leave to amend would cause 3 undue delay or prejudice Defendants. Defendants have yet to be served with the operative 4 complaint in this action and no dispositive motions have been filed. The Court is therefore left to 5 6 consider whether granting leave to amend would be futile. “[A] proposed amendment is futile only 7 if no set of facts can be proved under the amendment to the pleadings that would constitute a valid 8 and sufficient claim or defense.” Sweaney v. Ada County, 119 F.3d 1385, 1393 (9th Cir. 1997). 9 Courts must “liberally construe the inartful pleading of pro se litigants. It is settled that the 10 allegations of a pro se litigant’s complaint, however, “inartfully pleaded are held to less stringent 11 12 standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th 13 Cir. 1987) (cleaned up). 14 a. General Allegations 15 Plaintiff’s proposed Fourth Amended Complaint asserts 28 causes of action stemming from 16 her 2007 recruitment by Eis Technologies’s (“Eis”) to work in Georgia through the United States’s 17 18 H-1B Visa Program. She moved from India to serve as a Senior Consultant, but alleges that, in 19 doing so, she was subjected to misrepresentations regarding her H-1B visa petition. Even though 20 she thought she would work for Eis, when she arrived in the United States her employer was 21 actually Cronous. In addition to failing to pay her certain wages, these Defendants asked her to 22 engage in fraudulent work-related conduct, which she refused to do. Eis and Cronous jeopardized 23 24 her visa status, including by misrepresenting that Cronous was shutting down,. Plaintiff alleges 25 that she then filed a wage and hour complaint in 2009 with the U.S. Department of Labor (“DOL”) 26 – Wage and Hour Division (“WHD”) in Atlanta, Georgia. The case was decided against her and 27 she appealed to the U.S. Court of Appeals for Ninth Circuit. Further, Plaintiff secured back wages 28 1 as a result of a 2011 settlement of a civil lawsuit filed in Atlanta, Georgia against Eis, Cronous, 2 Swapna Pasham (Cronous’s president), Kiran Pasham (Eis’s vice president), and Naveen Miglani 3 (Eis and Cronous’s owner and principle). She alleges, however, that this settlement is invalid 4 because it was agreed to under fraudulent conditions.1 She also alleges that WHD employees 5 6 engaged in fraudulent conduct, including concealing facts pertinent facts related to her WHD 7 complaint. Plaintiff ended up appealing, pro se, the U.S. DOL’s Administrative Review Board 8 (“ARB”) decision of her complaint with the District Court of Nevada in June 2018.2 As a result of 9 this conduct, Plaintiff is unable to return to the United States or get a job, including in India. 10 Plaintiff’s proposed Fourth Amended Complaint names Eis, Cronous, Swapna Pasham, 11 12 Kiran Pasham, Naveen Miglani, Neelam Miglani (Cronous’s CEO), Vikram Sudini (Eis and 13 Cronous’s human resources manager), and Kowsala Rajendra (Eis and Cronous’s accountant). In 14 addition to naming WHD and the ARB, the complaint also names Linda Sneed, a wage and hour 15 investigator for the DOL in Atlanta, Georgia and Debra Brown, the assistant district director of 16 the DOL. The amended complaint challenges alleged visa fraud and fraud in foreign labor 17 18 contracting committed by Eis and Cronous. She also asserts RICO claims and various fraud-based 19 claims against Eis, Cronous, and their officers, directors, and employees. She also alleges federal 20 tort claims against WHD and ARB. Finally, Plaintiff seeks damages and the lifting of United the 21 States’s ban on her entering the country. 22 b. Causes of Action 23 24 i. FTCA Based Causes of Actions 25 26 1 She alleges that attorneys she hired to represent her in proceedings related to the WHD complaint also 27 engaged in fraudulent conduct against her. She filed separate complaints against these attorneys, and they are not named as Defendants in the instant proposed fourth amended complaint. 28 2 Plaintiff’s original complaint was attached to her July 2018 motion to proceed IFP. See ECF No. 1. 1 As a preliminary matter, the Court finds that allowing Plaintiff’s Federal Tort Claims Act 2 based causes of actions to proceed against WHD, ARB, Sneed, and Brown would be futile. These 3 are proposed causes of action Twenty Three through Twenty Eight. Absent a waiver, sovereign 4 immunity shields the Federal Government and its agencies from lawsuits against them. FDIC v. 5 6 Meyer, 510 U.S. 471, 475 (1994). Additionally, “[t]he FTCA provides a limited waiver of the 7 sovereign immunity of the United States for torts committed by federal employees acting within 8 the scope of their employment.” Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). 9 Section 2680 of 28 U.S.C. limits the United States’s waiver of sovereign immunity under the 10 FTCA by its bar of a tort claim for “[a]ny claim arising out of assault, battery, false imprisonment, 11 12 false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or 13 interference with contract rights.” 28 U.S.C. § 2680(h) (emphasis added). 14 All Plaintiff’s FTCA causes of action allege that WHD, ARB, Sneed, and Brown 15 misrepresented and deceived her and others regarding her WHD complaint. The FTCA, however, 16 has not waived sovereign immunity for claims like these which sound in fraud and 17 18 misrepresentation. See Kim v. United States, 940 F.3d 484, 492 (9th Cir. 2019). Therefore, the 19 proposed Fourth Amended Complaint’s Twenty Third Cause of Action, Twenty Fourth Cause of 20 Action, Twenty Fifth Cause of Action, Twenty Sixth Cause of Action, Twenty Seventh Cause of 21 Action, and Twenty Eighth Cause of Action would all fail as a matter of law. Therefore, the Court 22 finds that allowing amendment in favor of all these causes of action would be futile.3 23 24 ii. Federal Criminal Statute Based Causes of Action 25 26 27 3 None of Plaintiff’s causes of action name Sneed and Brown, except those under the FTCA. Moreover, the proposed Fourth Amended Complaint does not allege they acted outside the scope of their employment. Therefore, 28 despite the proposed complaint recognizing Sneed and Brown as individuals, the Court does not construe any causes of action against them as being raised in their individual capacities. 1 The proposed Fourth Amended Complaint raises numerous causes of action pursuant to 2 federal statutes. “[T]he fact that a federal statute has been violated and some person harmed does 3 not automatically give rise to a private cause of action in favor of that person.” Touche Ross & 4 Co. v. Redington, 442 U.S. 560, 568 (1979) (quoting Cannon v. University of Chicago, 441 U.S. 5 6 677, 688 (1979)). The Court reviews each of these causes of action to determine whether allowing 7 them to be amended into Plaintiff’s amended complaint would be futile. 8 1. Proposed Causes of Action that are Futile 9 The Court finds the allowing Plaintiff to add the following causes of action would be futile. 10 The First Cause of Action is against Defendants Eis and Cronous for visa fraud in violation of 18 11 12 U.S.C. §§ 371 and 1324(a). The Second Cause of Action is against Defendants Eis and Cronous 13 for fraud in foreign labor contracting in violation of 18 U.S.C. § 1351. The Sixth Cause of Action 14 is against Defendant Swapna Pasham for perjury in violation of 18 U.S.C. § 1621. The Seventh 15 Cause of Action is for wire fraud against Defendants Eis and Cronous in violation 18 U.S.C. § 16 1343. The Eighth Cause of Action is for alleged mail fraud against Defendant Eis and Cronous in 17 18 violation of 18 U.S.C. § 1341. The Ninth Cause of Action is against Defendants Swapna Pasham 19 and Vikram Sudini for willful submission of false statements to the federal government in violation 20 of 18 U.S.C. § 1001. The Fifteenth Cause of Action is against Defendants Swapna Pasham and 21 Vikram Sudini for fraud and misuse of a visa in violation of 18 U.S.C. § 1546(a). The Seventeenth 22 Cause of Action is against Defendant Cronous for transmitting threats in interstate 23 24 communications in violation of 18 U.S.C. § 875. The Eighteenth Cause of Action is against 25 Defendant Cronous for attempted extortion and blackmail in violation 18 U.S.C § 873. Lastly, the 26 Nineteenth Cause of Action is alleged against Defendant Cronous for an attempt to evade or defeat 27 tax in violation of 26 U.S.C. § 7201. 28 1 These statutes, however, do not give rise to private causes of action. See Henry v. Universal 2 Tech. Inst., 559 Fed. App’x 648, 650 (9th Cir. 2014) (affirming dismissal of claim under 18 U.S.C. 3 § 371 because the statute does not provide for a private right of action); Gonzales v. Caremore 4 Health Plan, Inc., No. 15-cv-1499, 2015 WL 6394467, at *2 (C.D. Cal. Oct. 22, 2015) (finding no 5 6 private right of action in 18 U.S.C. 1324(a)); Kemp v. Place All. L.L.C., No. 22-CV-262-PGB- 7 LHP, 2022 WL 3136895, at *3 (M.D. Fla. June 15, 2022), report and recommendation adopted, 8 No. 22-CV-262-PGB-LHP, 2022 WL 3136884 (M.D. Fla. July 11, 2022) (finding no private right 9 of action available under 18 U.S.C. § 1351); Valero v. Bac Home Loans Servicing, LP, 667 F. 10 App’x 255 (9th Cir. 2016) (finding that there is not private civil right of action provided by 18 11 12 U.S.C. §§ 1621, 1341, 1343); Willems v. Apartment Inv. & Mgmt. Co. AIMCO, 72 F. App’x 700, 13 701 (9th Cir. 2003) (finding that “18 U.S.C. § 1001 does not provide a private right of action”); 14 Govindharajan v. Tata Consultancy Servs., Ltd., No. 19-CV-10017, 2020 WL 4016109, at *9 15 (S.D.N.Y. July 16, 2020) (finding no private right of action available under 18 U.S.C. § 1546(a)); 16 Walsh v. Krantz, 386 F. App’x 334, 336 (3d Cir. 2010) (affirming district court dismissal that 17 18 found that there was no “private right of enforcement” for violations of 18 U.S.C. § 875); Afshari 19 v. Montana Black Gold, No. 20-5362, 2020 WL 9217980, at *3 (6th Cir. Dec. 17, 2020) (affirming 20 district court finding that there was no private right of action for a violation of 18 U.S.C. § 873); 21 Lemke v. Jander, No. 20-CV-362, 2021 WL 778653, at *4 (S.D. Cal. Mar. 1, 2021) (finding that 22 “there is no private right of action in 26 U.S.C. § 7201”). 23 24 Separately, the Seventh, Eighth, and Nineteenth Causes of Action seem to assert that the 25 named Defendants violated 31 U.S.C. § 3729(a)(1)(G). This statute is part of the False Claims Act, 26 31 U.S.C. § 3729. Such a claim, however, requires a relator, and “a relator cannot pursue a FCA 27 / / / 28 1 claim pro se.” United States ex rel. Welch v. My Left Foot Children's Therapy, LLC, 871 F.3d 2 791, 800 n.2 (9th Cir. 2017). 3 Next, the Sixteenth Cause of Action is alleged against Defendants Kowsala Rajendra and 4 Swapna Pasham for retaliation in violation of 20 C.F.R. §655.801. There is, however, no indication 5 6 that 20 C.F.R. §655.801 provides Plaintiff a private right of action. 7 Lastly, the Twenty First Cause of Action is alleged against Defendant Vikram Sudini for 8 defamation. Plaintiff cites 28 U.S.C. § 4101 for this cause of action. This statute, however, only 9 contains definitions used when litigants are seeking enforcement of foreign judgments against 10 United States citizens who are entitled to First Amendment protections. 28 U.S.C. § 4101. 11 12 Specifically, “[i]n August 2010, Congress adopted the SPEECH Act (“Securing the Protection of 13 our Enduring and Established Constitutional Heritage Act.”), . . . 28 U.S.C. §§ 4101–4105.” Naoko 14 Ohno v. Yuko Yasuma, 723 F.3d 984, 1004 n.22 (9th Cir. 2013). The “law makes foreign 15 defamation judgments unenforceable in the United States unless it can be shown that such 16 judgments satisfy the protections of freedom of speech and press guaranteed by both the First 17 18 Amendment to the United States Constitution and the constitution of the state in which the 19 domestic court is located.” Id. Similarly, the Twelfth Cause of Action against Defendant Cronous 20 for breach of contract also cites to a statute defining terms in the Fair Labor Standards Act. See 29 21 U.S.C. § 203. Accordingly, under the facts alleged by Plaintiff, her proposed cause of action for 22 defamation and breach of contract fail as a matter of law. 23 24 In conclusion, the Court finds that allowing Plaintiff to add these causes of action, as 25 alleged in the proposed Fourth Amended Complaint, would be futile because there is no indication 26 that the alleged violations of these statutes provide Plaintiff with a private right of action. 27 2. Proposed Causes of Action that are not Futile 28 1 The Court, however, finds that allowing Plaintiff to amend the following causes of action 2 as alleged in the proposed Fourth Amended Complaint would not be futile: (1) the Tenth Cause of 3 Action against Defendants Eis and Cronous for involuntary servitude in violation of 18 U.S.C. § 4 1584 and forced labor in violation of 18 U.S.C. § 1589 and (2) the Eleventh Cause of Action 5 6 against these Defendants for trafficking with respect to peonage, slavery, involuntary servitude, or 7 forced labor in violation of 18 U.S.C. § 1590. Although these are criminal statutes, 18 U.S.C. § 8 1595 confers a private right of action against those alleged to violate these statutes. See 18 U.S.C. 9 § 1595(a) (“An individual who is a victim of a violation of this chapter may bring a civil action 10 against the perpetrator . . . in an appropriate district court of the United States and may recover 11 12 damages and reasonable attorneys fees.”). Providing that Plaintiff alleges more facts, the Court 13 finds that amendment under these causes of action would not be futile. 14 Additionally, the Twenty Second Cause of Action is alleged against Defendants Eis and 15 Cronous for a Civil RICO violation. “The elements of a civil RICO claim are as follows: (1) 16 conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as predicate 17 18 acts) (5) causing injury to plaintiff's business or property.” Living Designs, Inc. v. E.I. Dupont de 19 Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005) (internal quotation marks omitted). Providing 20 that Plaintiff alleges more facts, the Court finds that amendment to this cause of action would not 21 be futile. 22 c. Jurisdiction and the Rest of the Causes of Action 23 24 Finally, the Court notes that it has some doubt as to whether it has jurisdiction over this 25 matter. The proposed Fourth Amended Complaint asserts that this Court has jurisdiction under 28 26 U.S.C. §1331 and 28 U.S.C. § 1964 for Plaintiff’s Civil RICO claims. Whether federal question 27 jurisdiction exists in a given case is governed by the “well-pleaded complaint rule.” Caterpillar 28 1 Inc. v. Williams, 482 U.S. 386, 392 (1987). Under this rule, the federal question “must be disclosed 2 upon the face of the complaint, unaided by the answer.” Gully v. First Nat’l Bank in Meridian, 299 3 U.S. 109, 113 (1936). 4 Yet, the following causes of action do not cite federal statutes: the Third Cause of Action 5 6 against Defendant Eis for fraudulent misrepresentation, the Fourth Cause of Action against 7 Defendants Eis and Cronous for fraud and false promise, the Fifth Cause of Action against 8 Defendants Eis and Cronous for fraudulent concealment, the Thirteenth Cause of Action against 9 Defendant Cronous for promissory fraud, the Fourteenth Cause of Action against Defendant 10 Swapna Pasham for unlawful termination, and the Twentieth Cause of Action against Defendants 11 12 Eis and Cronous for intentional infliction of emotional distress. Additionally, presuming that these 13 are intended to be state law causes of action, the proposed amended complaint does not assert that 14 this Court has supplemental jurisdiction over them. Indeed, the supplemental jurisdiction statute, 15 28 U.S.C. § 1367, grants federal courts supplemental jurisdiction over claims over which no 16 original jurisdiction exists. 17 18 Moreover, the factual allegations seem to suggest that the events underlying all Plaintiff’s 19 causes of action took place in a different state. Therefore, it is unclear whether the facts, as alleged, 20 make a prima facie showing that this Court has personal jurisdiction over the Defendants. See 21 Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (“Absent an evidentiary hearing this 22 court “only inquire[s] into whether [the plaintiff's] pleadings and affidavits make a prima facie 23 24 showing of personal jurisdiction.”). 25 Nevertheless, the Court, for the reasons stated above, does not find amendment in this 26 matter to be futile. Because it is unclear whether this Court has jurisdiction over these remaining 27 / / / 28 1 causes of action, Plaintiff is granted leave to amend to add allegations supporting this Court’s 2 jurisdiction and clarifying under what statutes these remaining causes of action are brought under. 3 d. Summary 4 The Court acknowledges that it previously told Plaintiff that it would allow her one final 5 6 opportunity to file a complaint that followed the Federal Rules of Civil Procedure. The Court finds 7 that, liberally construing her proposed Fourth Amended Complaint, she has complied. The Court 8 nonetheless finds that the deficiencies discussed above warrant Plaintiff being granted leave to 9 amend to address them. 10 The Court finds that providing leave to amend the following proposed causes of action and 11 12 allegations would not be futile: the Third Cause of Action, the Fourth Cause of Action, the Fifth 13 Cause of Action, the Tenth Cause of Action, the Eleventh Cause of Action, the Thirteenth Cause 14 of Action, the Fourteenth Cause of Action, the Twentieth Cause of Action, and the Twenty Second 15 Cause of Action. Additionally, Plaintiff is granted leave to amend the proposed Twelfth Cause of 16 Action (Breach of Contract), the Sixteenth Cause of Action (Retaliation), and the Twenty First 17 18 Cause of Action (Defamation) if she can properly allege them asserting a proper federal or state 19 statute. As discussed above, Plaintiff is also granted leave to allege additional facts asserting the 20 Court’s jurisdiction over these causes of action and the remaining Defendants. 21 The Court, however, will not grant Plaintiff leave to amend to add the following proposed 22 causes of action to her complaint, because it finds that doing so would be futile: the First Cause of 23 24 Action, the Second Cause of Action, the Sixth Cause of Action, the Seventh Cause of Action, the 25 Eighth Cause of Action, the Ninth Cause of Action, the Fifteenth Cause of Action, the Seventeenth 26 Cause of Action, the Eighteenth Cause of Action, the Nineteenth Cause of Action, the Twenty 27 Third Cause of Action, Twenty Fourth Cause of Action, the Twenty Fifth Cause of Action, the 28 1 | Twenty Sixth Cause of Action, the Twenty Seventh Cause of Action, and the Twenty Eighth Cause 2 of Action. The Court also finds that, under the facts alleged, Plaintiff cannot assert causes of action against WHD, ARB, Sneed, and Brown. 6 IV. CONCLUSION 7 IT IS THEREFORE ORDERED that Plaintiff's MOTION to Amend 20 Amended 8 Complaint (ECF No. 26) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Plaintiff shall until April 27, 2023 to file a motion to amend her complaint and attach a complaint consistent with this Order. 12 DATE: March 31, 2023. 13 AS 15 RICHARD F. BOULWARE, II 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 -13-