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Kitz v. Kitz

United States District Court, E.D. Pennsylvania
Feb 18, 2022
Civil Action 22-CV-0600 (E.D. Pa. Feb. 18, 2022)

Opinion

Civil Action 22-CV-0600

02-18-2022

JENNIFER KITZ, Plaintiff, v. MICHAEL KITZ, et al., Defendants.


MEMORANDUM

PADOVA, J.

Plaintiff Jennifer Kitz filed this action pro se naming as Defendants her spouse Michael Kitz, a real estate agent Lisa App, and two title agents Jen Pope and Jami Marino. Kitz seeks leave to proceed in forma pauperis. For the following reasons, the Court will grant Kitz leave to proceed in forma pauperis and dismiss her Complaint in part with prejudice and in part without prejudice.

The Court uses “Kitz” to refer to Jennifer Kitz, while Michael Kitz will be referred to by his full name to avoid confusion.

I. FACTUAL ALLEGATIONS

Kitz used a form complaint available to unrepresented litigants to file her case and added a handwritten supplement and exhibits. (See ECF No. 2, 2-1.) The Court will consider the entire submission as the Complaint in this case. Kitz alleges that her real estate agent, Defendant Lisa App, failed to act in good faith and look out for her best interests in a real property transaction that closed in March 2018. (ECF No. 2-1 at 1.) Her father allegedly attended the settlement to make sure Kitz was not taken advantage of, but he also did not look out for her interests. (Id. at 2.) She asserts she was due $12,000 of proceeds but only received $5,000. (Id.) Kitz's spouse, Michael Kitz, allegedly acted intentionally when he filled out a deed package for the settlement with instructions where to wire his share of the money from the allegedly fraudulent sale. Kitz has learned that Michael was involved in two other settlements that took place in March 2019, involving two other title companies. (Id.) Michael Kitz allegedly failed to supply Kitz with the documents he received at those settlements. (Id.) She claims that these documents show the whereabouts of the money that was stolen from her. (Id. at 3.)

The Court adopts the pagination supplied by the CM/ECF docketing system.

Defendants App and Jen Pope, along with numerous others, allegedly violated “Ch.4, sec. 4114 since they all have been withholding my documents that were not issued to me so I can account for every nickel that was paid or not paid.” (Id.) App allegedly kept two personal checks written by the purchaser of the property. (Id. at 3-4.) Kitz asserts that another woman impersonated her at the settlement and her otherwise unidentified “real estate agent, ” possibly App, discussed her personal finances with the imposter on multiple occasions. (Id. at 4.) Kitz further asserts that liens and a mortgage that were due to be paid at the settlement were not. (Id. at 6.) Defendant Marino is not otherwise discussed in the Complaint. Kitz seeks to invoke the Court's federal question jurisdiction to raise claims under the federal mail fraud, wire fraud, bank fraud and money laundering statutes. She seeks money damages.

Kitz lists numerous individuals in her Complaint who are not included in the list of Defendants. (See ECF No. 2-1 at 3-11.) It is unclear whether she intended to bring claims against any of these individuals. Whether any other individual is intended to be named as a Defendant does not impact the Court's screening of Katz's Complaint.

Kitz appears to refer to the Pennsylvania criminal statute making it a second-degree misdemeanor for a person to, by deception “cause[] another to execute any instrument affecting or purporting to affect or likely to affect the pecuniary interest of any person.” See 18 Pa. Cons. Stat. § 4114. Later in her Complaint, Kitz cites “Ch. 41, Sec. 4115.” (ECF No. 2-1 at 4.) That section of Pennsylvania criminal code provides that a person “commits a misdemeanor of the second degree if, without due authority, he pretends or holds himself out to any one as an employee of any person for the purpose of gaining access to any premises.” 18 Pa. Cons. Stat. § 4115. She also cites “Statutes: 39, Subchap. B, Sec. 3921, ” “Sec. 39, 3922.1” and “Sec. 3925, Ch. 39, ” (ECF No. 2-1 at 1, 2), an apparent reference to 18 Pa. Cons. Stat. §§ 3921, 3922.1 and 3925, the Pennsylvania criminal statutes outlawing theft by unlawful taking, the financial exploitation of an older adult or care-dependent person, and receiving stolen property, respectively. Accordingly, the Court understands Kitz to be raising state law claims based on these statutes.

II. STANDARD OF REVIEW

The Court will grant Kitz leave to proceed in forma pauperis because it appears that she is incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss Kitz's Complaint if it fails to state a claim. The Court must determine whether the Complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). When allowing a plaintiff to proceed in forma pauperis the Court must also review the pleadings and dismiss the matter if it determines, inter alia, that the action fails to set forth a proper basis for this Court's subject matter jurisdiction. 28 U.S.C. § 1915(e)(2)(B); Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); Group Against Smog and Pollution, Inc. v. Shenango, Inc., 810 F.3d 116, 122 n.6 (3d Cir. 2016) (explaining that “an objection to subject matter jurisdiction may be raised at any time [and] a court may raise jurisdictional issues sua sponte”). A plaintiff commencing an action in federal court bears the burden of establishing federal jurisdiction. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (“The burden of establishing federal jurisdiction rests with the party asserting its existence.” (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006))).

‘“At this early stage of the litigation,' ‘[the Court will] accept the facts alleged in [the pro se] complaint as true,' ‘draw[] all reasonable inferences in [the plaintiff's] favor,' and ‘ask only whether [that] complaint, liberally construed, . . . contains facts sufficient to state a plausible [] claim.'” Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. As Kitz is proceeding pro se, the Court construes her allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

III. DISCUSSION

Kitz seeks money damages for the alleged violation of several federal criminal statutes. Specifically, she cites the federal mail, wire, and bank fraud statutes, 18 U.S.C. §§ 1341, 1343, 1344, and the provisions outlawing money laundering and engaging in monetary transactions in property derived from specified unlawful activities, 18 U.S.C. §§ 1956, and 1957. (ECF No. 4-5.) Criminal statutes, however, generally do not give rise to a basis for civil liability. See Brown v. City of Philadelphia Office of Human Res., 735 Fed.Appx. 55, 56 (3d Cir. 2018) (per curiam) (“Brown alleges that the defendants violated various criminal statutes, but most do not provide a private cause of action.”); Brown v. Progressive Specialty Ins. Co., 763 Fed.Appx. 146, 147 (3d Cir. 2019) (per curiam) (“Brown's mere citation to various constitutional provisions cannot transform his state law claims into causes of action ‘arising under' the Constitution.”). Indeed, the United States Supreme Court has stated that, unless specifically provided for, federal criminal statutes rarely create private rights of action. Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 377 (1958) (stating that where a statute “contains only penal sanctions for violation of it provisions; in the absence of a clear expression of congressional intent to the contrary, these sanctions should under familiar principles be considered exclusive, rather than supplemented by civil sanctions of a distinct statute”). The fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action for the injured person. Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979); Cannon v. University of Chicago, 441 U.S. 677, 689 (1979).

Kitz's § 1341 federal mail fraud claim is not plausible because there is no private right of action under that statute. See Jones v. TD Bank, 468 Fed.Appx. 93, 94 (3d Cir. 2012) (“To the extent that Jones attempted to sue under the Federal Mail Fraud statute, 18 U.S.C. § 1341, he lacked a private right of action to do so.”) (citing Wisdom v. First Midwest Bank, 167 F.3d 402, 408 (8th Cir.1999) (collecting cases)). There is also no private right of action under § 1343, the wire fraud statute. Addlespurger v. Corbett, 461 Fed.Appx. 82, 87 (3d Cir. 2012); see also Pennington v. Wells Fargo Bank, N.A., No. 11-2896, 2012 WL 5199257, at * 3 (E.D. Pa. Oct.19, 2012) (dismissing with prejudice claims for violation of, inter alia, §§ 1341 and 1343 and noting that “I reject all claims based on alleged violations of federal criminal law. The federal statutes that the Penningtons cite do not provide them with a private cause of action.”). Courts have also found there is no cause of action under § 1344, the bank fraud statute. See e.g., Wisdom v. First Midwest Bank, 167 F.3d 402, 408 (8th Cir.1999); Migrom v. Burstein, 374 F.Supp.2d 523, 529 (E.D. Ky. 2005) (finding no private right of action under 18 U.S .C. § 1344); Park Nat'l Bank of Chicago v. Michael Oil Co., 702 F.Supp. 703, 704 (N.D. Ill. 1989) (same). The two money laundering statutes also do not provide a private right of action. See Mazza v. Bank of New York Mellon, No. 20-3253, 2021 WL 601135, at *7 (E.D. Pa. Feb. 16, 2021) (holding that “there is no private cause of action to enforce these criminal laws”); Thompson v. Kramer, No. 93-2290, 1994 WL 725953, at *15 (E.D. Pa. Dec. 29, 1994) (“These statutes provide by their plain language for criminal penalties but not for private causes of action.”). Accordingly, these claims are dismissed with prejudice because the defects in these claims cannot be cured.

While it is not entirely clear, Kitz may also be attempting to allege claims under state law based on her citations to Pennsylvania criminal statutes. Because the Court has dismissed her federal claims, the Court will not exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) over any state law claims. Accordingly, the only independent basis for jurisdiction over any such claims is 28 U.S.C. § 1332(a), which grants a district court jurisdiction over a case in which “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States.”

Section 1332(a) requires “‘complete diversity between all plaintiffs and all defendants,' even though only minimal diversity is constitutionally required. This means that, unless there is some other basis for jurisdiction, ‘no plaintiff [may] be a citizen of the same state as any defendant.'” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015) (quoting Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) and Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010) (internal footnotes omitted)). An individual is a citizen of the state where he is domiciled, meaning the state where he is physically present and intends to remain. See Washington v. Hovensa LLC, 652 F.3d 340, 344 (3d Cir. 2011). It is the plaintiff's burden to establish diversity of citizenship, see Gibbs v. Buck, 307 U.S. 66, 72 (1939); Quaker State Dyeing & Finishing Co., Inc. v. ITT Terryphone Corp., 461 F.2d 1140, 1143 (3d Cir. 1972) (stating that, in diversity cases, the plaintiff must demonstrate complete diversity between the parties and that the amount in controversy requirement has been met); Jackson v. Rosen, No. 20-2842, 2020 WL 3498131, at *8 (E.D. Pa. June 26, 2020).

Kitz does not allege the citizenship of the parties. Rather, she provides only Pennsylvania addresses for herself and the Defendants, which suggests that she and some, if not all, of the Defendants may be Pennsylvania citizens. Indeed, she alleges that she and her spouse,

Defendant Michael Kitz, live at the same address. Accordingly, Kitz has not sufficiently alleged that the parties are diverse for purposes of establishing the Court's jurisdiction over any state law claims she intends to pursue. Those claims will be dismissed without prejudice so that Kitz may reassert them in an appropriate state court.

Under the circumstances here, the Court concludes that it would be futile to permit amendment of the jurisdictional allegations.

An appropriate Order follows.


Summaries of

Kitz v. Kitz

United States District Court, E.D. Pennsylvania
Feb 18, 2022
Civil Action 22-CV-0600 (E.D. Pa. Feb. 18, 2022)
Case details for

Kitz v. Kitz

Case Details

Full title:JENNIFER KITZ, Plaintiff, v. MICHAEL KITZ, et al., Defendants.

Court:United States District Court, E.D. Pennsylvania

Date published: Feb 18, 2022

Citations

Civil Action 22-CV-0600 (E.D. Pa. Feb. 18, 2022)