Jesse Ortiz v. Business Consumers and Housing Agency

Case 2:23-cv-00837-FWS-AS Document 10 Filed 02/23/23 Page 1 of 5 Page ID #:59

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 2:23-cv-00837-FWS-AS Date: February 23, 2023

Title: Jesse Ortiz et al. v. Business Consumers and Housing Agency et al.

Present: HONORABLE FRED W. SLAUGHTER, UNITED STATES DISTRICT JUDGE

Melissa H. Kunig N/A

Deputy Clerk Court Reporter

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

PROCEEDINGS: ORDER TO SHOW CAUSE RE: DISMISSAL OF COMPLAINT [1]

PURSUANT TO 28 U.S.C. § 1915

Before the court is Plaintiffs Jesse Ortiz, Elizabeth Thomas, and Worktough Inc.’s

(“Plaintiffs”) Application to Proceed in forma pauperis (“IFP”). (Dkt. 2.) Pursuant to 28

U.S.C. § 1915(a)’s mandatory screening requirement, the court ORDERS Plaintiffs to show

cause, in writing, within twenty-one (21) days of this Order, why the Complaint in this action

(Dkt. 1) should not be dismissed for (1) lack of subject matter jurisdiction and (2) frivolity. The

court DEFERS ruling on Plaintiff’s Application to Proceed IFP for thirty (30) days.

I. Legal Standards

A party bringing a civil action in a district court of the United States other than an

application for a writ of habeas corpus must pay a filing fee of $350 and an additional $52

administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District

Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). If the plaintiff cannot prepay the full fee,

the court may permit the plaintiff to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews

v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). The plaintiff must submit an affidavit

demonstrating their inability to pay the filing fee, which must include a statement of all the

plaintiff’s assets. See 28 U.S.C. § 1915(a)(1). “An affidavit in support of an IFP application is

sufficient where it alleges that the affiant cannot pay the court costs and still afford the

necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citation

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 2:23-cv-00837-FWS-AS Date: February 23, 2023

Title: Jesse Ortiz et al. v. Business Consumers and Housing Agency et al.

omitted). However, the affiant’s poverty must be stated “with some particularity, definiteness,

and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). If the court

determines “the allegation of poverty is untrue,” it “shall dismiss the case.” 28 U.S.C.

§ 1915(e)(2).

The court is required to sua sponte screen any complaint filed by a person proceeding IFP

pursuant to 28 U.S.C. § 1915(a). Under § 1915(e)(2), a complaint filed IFP may be dismissed

at any time if the court determines that the action or appeal: (1) is frivolous or malicious;

(2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a

defendant who is immune to such relief. 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203

F.3d 1122, 1126 n.7 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) applies to all in forma

pauperis complaints.”).

A complaint “is frivolous where it lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim for relief if it

does not contain sufficient factual matter which, taken as true, gives rise to a plausible inference

that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009) (citation omitted); see also Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)

(“The standard for determining whether a plaintiff has failed to state a claim upon which relief

can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure

12(b)(6) standard for failure to state a claim.”) (citation omitted). While a complaint need not

contain “detailed factual allegations,” it must state “more than labels and conclusions” and “a

formulaic recitation of the elements of a cause of action” such that its factual allegations “raise

a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (citations and internal quotation marks omitted); see also Iqbal, 556 U.S. at 679

(reiterating that “recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice”).

Separately, “[f]ederal courts are courts of limited jurisdiction.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). If the court determines it lacks subject matter

jurisdiction over an action, the court must dismiss it. Fed. R. Civ. P. 12(h)(3). “In civil cases,

subject matter jurisdiction is generally conferred upon federal district courts either through

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__________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 2:23-cv-00837-FWS-AS Date: February 23, 2023

Title: Jesse Ortiz et al. v. Business Consumers and Housing Agency et al.

diversity jurisdiction, 28 U.S.C. § 1332, or federal question jurisdiction, 28 U.S.C. § 1331.”

Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1069 (9th Cir. 2005). “The presence or absence

of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which

provides that federal jurisdiction exists only when a federal question is presented on the face of

the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987) (citation omitted). Diversity jurisdiction lies only where each defendant is a citizen of a

different state from each plaintiff and the amount in controversy exceeds $75,000. 28 U.S.C.

§ 1332(a); see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). The burden

of establishing jurisdiction rests on the party asserting it. Kokkonen, 511 U.S. at 377.

II. Discussion

The Complaint in this action asserts this case presents a federal question based on the

“Coronavirus Response Act and Coronavirus Aid, Relief and Economic Security (the CARES)

Act,” enacted in March 27, 2020. (Dkt. 1 at 1.) While the Complaint does not clearly state a

cause(s) of action Plaintiffs bring in this action, Plaintiffs state they seek relief of rent assistance

or an explanation why Plaintiffs did not receive assistance “around the time” others were

receiving assistance. (Id. at 3.)

As stated by numerous other district courts, the CARES act does not create an implied

private right of action under which Plaintiffs assert such a claim. See, e.g., Radix L. PLC v.

JPMorgan Chase Bank NA, 508 F. Supp. 3d 515, 520 (D. Ariz. 2020) (“[T]here is no private

right of action to enforce the CARES Act.”) (collecting cases); Saloojas Inc. v. Blue Shield of

Cal. Life & Health Ins. Co., 2022 WL 4843071, at *1 (N.D. Cal. Oct. 3, 2022) (observing “the

overwhelming majority of district courts to have addressed the issue have found” neither the

CARES Act or Families First Coronavirus Response Act creates a private right of action)

(collecting cases); Betancourt v. Total Prop. Mgmt., 2022 WL 2359286, at *3 (E.D. Cal. June

30, 2022) (“Significantly, courts have repeatedly determined the CARES Act did not create a

private right of action for violations.”) (collecting cases); Am. Video Duplicating, Inc. v. City

Nat’l Bank, 2020 WL 6882735, at *5 (C.D. Cal. Nov. 20, 2020) (“Unsurprisingly, every court

to address whether the CARES Act created an implied private right of action has held that it

does not.”) (collecting cases); Horvath v. JP Morgan Chase & Co., 2022 WL 80474, at *5 (S.D.

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__________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 2:23-cv-00837-FWS-AS Date: February 23, 2023

Title: Jesse Ortiz et al. v. Business Consumers and Housing Agency et al.

Cal. Jan. 7, 2022) (“To the extent that Plaintiff alleges that Defendant violated various

provisions of the CARES Act, Plaintiff does not have a cause of action under the CARES Act.”)

(citations omitted). Given that Plaintiffs’ sole ascertainable cause of action and basis for

jurisdiction is brought pursuant to the CARES Act, under which no private cause of action lies,

the court concludes it appears to lack subject matter jurisdiction over this action, and Plaintiffs

claim may be frivolous as lacking a basis in law.

Accordingly, the court ORDERS Plaintiffs to show cause, in writing, within twenty-one

(21) days of this Order, why this action should not be dismissed for (1) lack of subject matter

jurisdiction and (2) frivolity. Accordingly, the court DEFERS ruling on Plaintiff’s Application

to Proceed IFP for thirty (30) days.

Failure to timely comply with this Order will result in this action being dismissed with

prejudice for failing to state a claim, prosecute, and/or comply with a court order. See Fed. R.

Civ. P. 41(b); Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962) (“The authority of a court to

dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’

governed . . . by the control necessarily vested in courts to manage their own affairs so as to

achieve the orderly and expeditious disposition of cases.”); Pagtalunan v. Galaza, 291 F.3d

639, 640-43 (9th Cir. 2002) (affirming sua sponte dismissal with prejudice “for failure to

prosecute and for failure to comply with a court order”).

Though Plaintiffs are proceeding pro se, Plaintiffs are still required to comply with this

court’s Local Rules and the Federal Rules of Civil Procedure. The Local Rules are available at

http://www.cacd.uscourts.gov/court-procedures/local-rules. The Court may not provide legal

advice to any party, including pro se litigants. Plaintiffs are advised that the Federal Pro Se

Clinic offers free information and guidance to individuals representing themselves in federal

civil actions. The Santa Ana Clinic operates by appointment only. You may schedule an

appointment either by calling the Clinic or by using an internet portal. You can call the Clinic

at 714-541-1010, ext. 222, or you can submit an internet request at:

https://prose.cacd.uscourts.gov/santa-ana or http://www.publiccounsel.org. Clinic staff can

respond to many questions with a telephonic appointment or through your email account.

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__________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 2:23-cv-00837-FWS-AS Date: February 23, 2023

Title: Jesse Ortiz et al. v. Business Consumers and Housing Agency et al.

Initials of Deputy Clerk: mku

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