Opinion
Civil Action 2:22-1114
08-11-2022
MARK JASMINE, Plaintiff, v. JUSTINE GAINEY and MICHAEL GAINEY, Defendants.
REPORT AND RECOMMENDATION
Patricia L. Dodge United States Magistrate Judge
I. Recommendation
It is respectfully recommended that the Complaint in this case be dismissed for lack of subject matter jurisdiction.
II. Report
Plaintiff Mark Jasmine (“Jasmine”) brings this action against Defendants Justine and Michael Gainey (“the Gaineys”), alleging that they violated the law when, as his tenants, they received funds pursuant to the Allegheny County Emergency Rental Assistance Program (“ERAP”) but failed to forward the funds to their landlord as they were required to do. Jasmine alleges that the Gaineys failed to pay $4,825 in rent.
A. Procedural History
Jasmine commenced this action on August 1, 2022. The Complaint is a form (Pro Se 15) called “Complaint for Violation of Civil Rights (Non-Prisoner Complaint).” However, only pages one, two and four were submitted to the Clerk's Office. However, page three, where the basis for jurisdiction must be indicated, is missing. Nevertheless, the choices on this form are limited to an action against state or local officials under 42 U.S.C. § 1983 or an action against federal officials under the doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In fact, no state, local or federal officials are named as defendants because the Gaineys are alleged by Jasmine to be private individuals.
Jasmine's Statement of Claim alleges as follows:
Tenant Justine Gainey promised to utilize the funds granted by ERAP Program solely for the purposes of paying rent - failure to do so is a violation of federal law and may result in the pursuit of federal charges. She did not pay ($4,825) to Landlord.(Compl. at 4 § III.) Attached to the Complaint is an exhibit consisting of three documents: (1) an email to Jasmine dated April 9, 2022 notifying him that Justine Gainey had been approved for an award of $4,825 from the Allegheny County ERAP; (2) a notice to Justine Gainey that “By accepting the above-described funds, you represent and promise that you will utilize these funds solely for the purposes of paying rent for the months and for tenancy at the address stated above and thus an eviction proceeding cannot occur for the months being satisfied. Failure to do so is a violation of federal law and may result in the pursuit of federal charges”; and (3) an email from RentalAssistance dated June 1, 2022 informing Jasmine that “This was paid by check on 4/8 to the tenant. I've attached the award letter that shows it went into the tenant's account. At this time, you would need to do [sic] open a case against her for funds not received for rent.”
The Civil Cover Sheet checks both the boxes for “US Government Plaintiff” (which is not accurate) and boxes indicating that both Jasmine and the Gaineys are citizens of Pennsylvania. The Civil Cover Sheet also refers to a case from the Court of Common Pleas of Allegheny County's Landlord Tenant Docket, MJ-05303-LT-0000019-2022. The docket sheet for that case reveals that, on June 7, 2022, Jasmine filed a landlord/tenant complaint against the Gaineys in Magisterial District Court; on June 21, 2022, judgment was entered in his favor; and on July 6, 2022, the order for possession was successfully served on them. Thus, it would appear that Jasmine may have already received a judgment in his favor regarding unpaid rent.
B. Discussion
1. Standard of Review
The Federal Rules of Civil Procedure provide that if a court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). It is well established that “because subject matter jurisdiction is non-waivable, courts have an independent obligation to satisfy themselves of jurisdiction if it is in doubt. A necessary corollary is that the court can raise sua sponte subject-matter jurisdiction concerns.” Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir. 2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977)).
“The party invoking federal jurisdiction bears the burden of establishing” that jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Thus, Jasmine has the burden of establishing that jurisdiction exists in this case.
2. Subject Matter Jurisdiction
Subject matter jurisdiction may be asserted on one of two bases: diversity of citizenship, in which parties are citizens of different states and the amount in controversy exceeds the sum of $75,000, 28 U.S.C. § 1332(a); or federal question jurisdiction, in which district courts “have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331. As the Complaint indicates, Jasmine and the Gaineys are all Pennsylvania citizens and the amount in controversy is only $4,825. Thus, subject matter jurisdiction cannot be based on diversity of citizenship.
Based on the form complaint that he utilized, Jasmine may contend that he can base subject matter jurisdiction on § 1983. However, § 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).
Jasmine contends that the Gaineys violated federal law by receiving funds pursuant to an ERAP and then failing to forward the funds that they received to their landlords. Even if Jasmine's allegations that about the Gaineys' conduct is true, they do not provide a basis for a landlord to sue the tenants in federal court.
As summarized by the Court of Appeals for the Second Circuit:
“Between March 2020 and March 2021, Congress appropriated an unprecedented five trillion dollars to address various aspects of the pandemic emergency. On March 25, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), a $2.2 trillion stimulus package-the largest in American history....
At the end of 2020, Congress made another $900 billion in pandemic relief available through the Consolidated Appropriations Act [(“CAA”)], see generally Pub. L. No. 116-260, with $25 billion directed to an Emergency Rental Assistance Program (“ERA”) for residential tenants, see id. § 501.Melendez v. City of New York, 16 F.4th 992, 998 (2d Cir. 2021).
According to the Pennsylvania Department of Human Services, the CAA “included funding for states to establish emergency rental assistance programs. Pennsylvania received approximately $569 million to administer assistance to renters, landlords, and utility providers who have been affected by the COVID-19 pandemic and economic insecurity.” “On February 5, 2021, Governor Wolf signed S.B. 109 into law, which officially designated the Department of Human Services (DHS) as the agency overseeing administration of the Emergency Rental Assistance Program (ERAP).” Id. Pennsylvania residents who sought assistance were directed to apply in the county in which they were located. Id. According to Jasmine, the Gaineys received assistance from the Allegheny County ERAP.
https://www.dhs.pa.gov/ERAP/Pages/ERAP.aspx (visited Aug. 9, 2022). The Court can take judicial notice of this information available on a government website. See Vanderklok v. United States, 868 F.3d 189, 205 n.16 (3d Cir. 2017).
In order for a plaintiff to bring suit under a federal law, the law must provide for a right to bring suit. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (“private rights of action to enforce federal law must be created by Congress.”) Courts have held that “neither the CARES Act nor the CAA expressly create a private right of action.” Turner v. Hamilton Cnty. Tr. Ass'n, 2022 WL 1606289, at *3 (S.D. Ind. May 20, 2022). See also Profiles, Inc. v. Bank of Am. Corp., 453 F.Supp.3d 742, 748 (D. Md. 2020).
Thus, the only basis for finding subject matter jurisdiction would be an implied right of action. “After Sandoval, the relevant inquiry for determining whether a private right of action exists appears to have two steps: (1) Did Congress intend to create a personal right?; and (2) Did Congress intend to create a private remedy? Only if the answer to both of these questions is “yes” may a court hold that an implied private right of action exists under a federal statute.” Wisniewski v. Rodale, Inc., 510 F.3d 294, 301 (3d Cir. 2007).
Courts have held that “there is no private right of action created, expressly or impliedly, by Congress in the CAA or the CARES Act.” Turner, 2022 WL 1606289, at *4. See also Graham v. Payne, 2022 WL 815138, at *2 (N.D. Ind. Mar. 17, 2022); Horvath v. JP Morgan Chase & Co., 2022 WL 80474, at *5 (S.D. Cal. Jan. 7, 2022); Moss v. Lee, 2022 WL 68388, at *5 (M.D. Tenn. Jan. 6, 2022); Walters v. Mnunchin, 2021 WL 2105387, at *4 (N.D. Ind. May 25, 2021); Daniel T.A. Cotts PLLC v. American Bank, N.A., 2021 WL 2196636, at *5 (S.D. Tex. Feb. 9, 2021); Johnson v. JPMorgan Chase Bank, N.A., 488 F.Supp.3d 144, 158 (S.D.N.Y. 2020).
This Court's review has failed to reveal the existence of any decision holding that either the CARES Act or the CAA provides an implied right of action under any circumstance, let alone in the context of the claim asserted by Jasmine. His claim is grounded in the failure to pay rent, a state law claim. There is no authority to suggest that an alleged misuse of ERAP funds by the Gaineys converts the alleged breach of an agreement to pay rent into a private cause of action under federal law. Jasmine has the right to seek to recovery of unpaid rent from the Gaineys in state court which, according to the docket sheet he cites, he may have already done. While it is possible that the failure to use ERAP funds for their intended purpose may represent a violation of federal law, no private cause of action exists.
Jasmine cannot bring suit on behalf of the federal government (known as a “qui tam action”) under these circumstances. “There is no common law right to bring a qui tam action; rather, a particular statute must authorize a private party to do so.” Woods v. Empire Health Choice, Inc., 574 F.3d 92, 98 (2d Cir. 2009). Neither the CARES Act nor the CAA contains a provision authorizing a qui tam action.
Thus, under the circumstances presented here, Jasmine cannot bring a civil suit in federal court against the Gaineys for the collection of unpaid rent.
III. Conclusion
For these reasons, it is recommended that this Complaint be dismissed for lack of subject matter jurisdiction.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by August 29, 2022. Failure to file timely objections will waive the right of appeal.