IN his fourth attempt, Denis Uvarov’s labor complaint against Osman Gani, operator and owner of Saipan Security Services, finally passed federal court scrutiny.
Denis Uvarov
Chief Judge Ramona V. Manglona of the District Court of the NMI on Monday ordered the U.S. Marshals Service to serve Gani with the first amended complaint and summons.
Gani, for his part, was directed to respond within 21 days.
In her eight-page order, Judge Manglona noted that Uvarov has asserted a Fair Labor Standards Act claim against his former employer.
She previously dismissed the original complaint without prejudice for failure to state a claim under the FLSA upon initial screening pursuant to 28 U.S.C. § 1915(e)(2) for individuals filing “in forma pauperis,” a Latin legal term that “refers to the ability of an indigent person to proceed in court without payment of the usual fees associated with a lawsuit.”
Because plaintiff’s first amended complaint appears to state a claim upon which relief may be granted, Judge Manglona allowed the lawsuit to proceed.
Last year, Uvarov asked the federal court to intervene in the dismissal by the CNMI Department of Labor of his complaint against the operator of Saipan Security Services.
In dismissing the lawsuit, the judge said Uvarov’s complaint was in Russian and it failed to establish that the amount-in-controversy threshold was met.
The judge said the amount in dispute did not appear anywhere near the threshold amount of over $75,000 required for jurisdiction.
Uvarov then filed a translated complaint and requested the court for an order awarding him $80,399 for damages on Oct. 1, 2020.
Uvarov wanted the court to find Gani liable to pay Uvarov compensation for the actual work that complainant did plus overtime.
Uvarov also wanted the court to find Osman liable for his “suffering and harm to health” caused by Osman’s alleged illegal actions.
But Judge Manglona dismissed these claims without prejudice for lack of jurisdiction, noting that plaintiff’s claim for lost profits failed as a matter of law given the nature of his at-will employment, and therefore plaintiff could not meet the amount in controversy for diversity jurisdiction.
Nonetheless, the court permitted Uvarov to file a second amended complaint to sufficiently establish that his claim met the amount in controversy.
On Nov. 18, 2020, Uvarov filed a second amended complaint alleging the same set of facts, but now stating that his employment was not at-will because such word was never used in hiring him.
The complaint was dismissed again by the federal court, which explained that under CNMI law, “employments are presumptively at-will and an employee may be terminated at any time.”
The judge also noted that under CNMI law, violations of minimum wage and hour laws only permitted recovery for unpaid wages and overtime compensation, plus an additional equal amount as liquated damages and attorney’s fees — not for any emotional distress or punitive damages.
Determining that any further amendments would be futile, Judge Manglona dismissed plaintiff’s claim without leave to amend.
Uvarov filed another complaint on Jan. 21, 2021, this time invoking the federal question jurisdiction and alleging a violation under the FLSA.
Upon screening plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2), the court granted plaintiff’s “in forma pauperis” application but dismissed the complaint on Feb. 11, 2021 without prejudice for failure to state a claim under the FLSA.
Uvarov filed a first amended complaint on Feb. 22, 2021.
In her recent ruling, Judge Manglona noted that plaintiff’s allegations regarding work at the poker place fall short of establishing that his individual activity is covered under the FLSA.
Plaintiff alleges that he “no doubt engaged with interstate commerce” because he guarded the poker room at a poker place in Saipan, and that the Internet is used there, the judge said.
However, she added, guarding a poker room does not constitute work for an instrumentality of interstate commerce, like working in the transportation or communication industry to satisfy the first method for individual coverage under the FLSA.
“While plaintiff alleges that the Internet is used at the poker place, he does not allege that he regularly uses the Internet for his work, or that the use of the Internet for his work involves the movement of persons or things,” the judge said.
“Thus, to the extent that plaintiff relies on the presence of Internet alone in establishing individual coverage, his allegations fall short of being covered under the FLSA.”
However, the judge said plaintiff’s allegations that he guarded a bank and warehouse may suffice.
In sum, she added, only Uvarov’s FLSA claim may proceed.
“All of plaintiff’s constitutional claims are dismissed without prejudice for failure to state a claim. Plaintiff may not renew these claims in any amended pleadings with this court, and plaintiff may not add any new claims without first making a motion and obtaining the court’s permission to amend his complaint to add new claims in this matter,” the judge said.
She also told Uvarov that while the current case is pending, “plaintiff may not continuously file new in forma pauperis applications and new complaints related to this matter. The court cautions plaintiff that doing so will be an abuse of the court’s process, and the court may declare plaintiff a vexatious litigant such that the clerk will be directed to no longer accept further filings outside of this case and that are related to this pending matter.”
A citizen of Russia, Uvarov entered Saipan in November 2017 as a “tourist.” He then sought political asylum.
In July 2020, he decided to leave the CNMI and no longer apply for political asylum.
His passport was returned to him in February 2021 and on March 19, 2021, he boarded a plane to Seoul, South Korea from where he planned to travel to Ukraine.
On April 23, 2021, the federal court dismissed with prejudice his claims against Immigration and Customs Enforcement and the Department of Homeland Security.
