Camm et al v. Crist et al
Filing
29
OPINION AND ORDER granting in part and denying in part 7 Motion to dismiss; granting in part and denying in part 8 Motion to dismiss; granting in part and denying in part 9 Motion to dismiss; granting in part and denying in part 10 Motion to dismiss; granting in part and denying in part 22 Motion to dismiss. See opinion and order for details. Signed by Judge John E. Steele on 11/30/2011. (SVC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN CAMM, ENNEIS HANEY, YUYUAN
LUCY LU, individually and on behalf
of all others similarly situated,
Plaintiffs,
vs.
Case No.
2:10-cv-656-FtM-29DNF
RICK SCOTT1, as
Governor of the
State of Florida, Member of the
Florida Cabinet, and director of the
Florida Department of Revenue, PAM
BONDI2, as Attorney General of the
State of Florida, member of the
Florida Cabinet and Director of the
Florida Department of Revenue, JEFF
ATWATER3,
as
Chief
Financial
Officer, member of the Florida
Cabinet and Director of the Florida
Department of Revenue, ADAM H.
PUTNAM4,
as
Commissioner
of
Agriculture, member of the Florida
Cabinet and Director of the Florida
1
Pursuant to Fed. R. Civ. P. 25(d), Rick Scott, as the current
Governor of the State of Florida, Member of the Florida Cabinet,
and director of the Florida Department of Revenue, is automatically
substituted for Charlie Crist.
2
Pursuant to Fed. R. Civ. P. 25(d), Pam Bondi, as the current
Attorney General of the State of Florida, Member of the Florida
Cabinet, and director of the Florida Department of Revenue, is
automatically substituted for Bill McCollum.
3
Pursuant to Fed. R. Civ. P. 25(d), Jeff Atwater, as the
current Chief Financial Officer, Member of the Florida Cabinet, and
director of the Florida Department of Revenue, is automatically
substituted for Alex Sink.
4
Pursuant to Fed. R. Civ. P. 25(d), Adam H. Putnam, as the
current Commissioner of Agriculture, Member of the Florida Cabinet,
and director of the Florida Department of Revenue, is automatically
substituted for Charles Bronson.
Department of Revenue, THE FLORIDA
CABINET as head of the Department of
Revenue,
FLORIDA
DEPARTMENT
OF
REVENUE,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on defendants’ motions to
dismiss
(Docs.
##7-9,
10,
22),
consolidated response (Doc. #23).
to
which
plaintiffs
filed
a
Defendants seek to dismiss
plaintiffs’ Complaint pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction and pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim.
I.
Plaintiffs are representatives of a putative class of Florida
homeowners who are defendants in foreclosure proceedings in various
Florida state courts.
Plaintiffs assert that as state-court
defendants they have compulsory claims which must be filed or
forfeited, but they are required by a relatively new Florida
statute to pay a filing fee to assert such compulsory claims.
Specifically, Fla. Stat. § 28.241(c) provides that:
A party [in a civil action in a circuit court relating to
real property or mortgage foreclosure] who files a
pleading in an original civil action in circuit court for
affirmative
relief
by
cross-claim,
counterclaim,
counterpetition, or third-party complaint shall pay the
clerk of court a graduated fee of: a. Three hundred and
ninety-five dollars in all cases in which the value of
-2-
the pleading is $50,000 or less; b. Nine hundred dollars
in all cases in which the value of the pleading is more
than $50,000 but less than $250,000; or c. One thousand
nine hundred dollars in all cases in which the value of
the pleading is $250,000 or more. The clerk shall remit
the fees collected under this subparagraph to the
Department of Revenue for deposit into the General
Revenue Fund, except that the clerk shall remit $100 of
the fee collected under sub-subparagraph a., $605 of the
fee collected under sub-subparagraph b., and $1,605 of
the fee collected under sub-subparagraph c. to the
Department of Revenue for deposit into the State Courts
Revenue Trust Fund.
Fla. Stat. § 28.241(c).
Plaintiffs assert that this statute
violates their substantive and procedural Due Process rights under
the
Fifth
and
Fourteenth
Amendments
of
the
United
States
Constitution, as well as their right of access to court under
Article I, section 22 of the Florida Constitution. Plaintiffs also
contend the fees mandated by the statute are reprehensible because
they are excessive, particularly in light of the financial position
of defendants involved in foreclosure proceedings.
Plaintiffs sue the named individuals in their various official
capacities, the Florida Cabinet, and the Florida Department of
Revenue in a three-count Complaint (Doc. #1). The first two counts
are brought under 42 U.S.C. § 1983, while Count III is brought
under the Florida Constitution.
enjoining
the
collection
of
Count I seeks injunctive relief
filing
fees
under
Fla.
Stat.
§
28.241(c) and the dismissal of compulsory claims for failing to pay
such filing fees, and requiring the creation of a separate account
for fees collected pursuant to the statute in order to facilitate
-3-
any refund of fees which may be ordered.
Count II seeks a
declaratory judgment that the statute is unconstitutional under the
Fifth and Fourteenth Amendments of the United States Constitution,
an order requiring defendants to cease and desist imposing and
collecting fees pursuant to the statute, and an order directing a
refund of all fees paid.
Count III seeks a declaratory judgment
that the statute is unconstitutional under Article I, section 21,
of the Florida Constitution, an order directing defendants to cease
and desist imposing and collecting fees pursuant to the statute,
and an order requiring defendants to refund all fees paid pursuant
to the statute.
Each count is asserted against all defendants.5
II.
A.
Standard of Review for Motions to Dismiss Pursuant to Rule
12(b)(1)
Rule 12(b)(1) authorizes a motion to dismiss an action if the
court lacks subject matter jurisdiction.
Such challenges can be
asserted on either facial or factual grounds.
Morrison v. Amway
Corp., 323 F.3d 920, 925 n. 5 (11th Cir. 2003).
Facial challenges to subject matter jurisdiction are
based solely on the allegations in the complaint. When
5
Contrary to the allegation in the Complaint, the Declaratory
Judgment Act does not confer any jurisdiction upon the court. GTE
Directories Pub. Corp. v. Trimen America, 67 F.3d 1563, 1567 (11th
Cir. 1995)(“At the outset we note that the Declaratory Judgment Act
does not enlarge the jurisdiction of the federal courts but rather
is operative only in respect to controversies which are such in the
constitutional sense.... Thus the operation of the Declaratory
Judgment Act is procedural only.” (internal citation and
punctuation omitted)).
-4-
considering such challenges, the court must, as with a
Rule 12(b)(6) motion, take the complaint's allegations as
true. However, where a defendant raises a factual attack
on subject matter jurisdiction, the district court may
consider extrinsic evidence such as deposition testimony
and affidavits.
Carmichael v. Kellogg, Brown & Root Serv., Inc., 572 F.3d 1271,
1279 (11th Cir. 2009).
See also Odyssey Marine Exploration, Inc.
v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169-70 (11th
Cir. 2011).
B.
Standard of Review for Motions to Dismiss Pursuant to Rule
12(b)(6)
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take them
in the light most favorable to plaintiff.
Erickson v. Pardus, 551
U.S. 89 (2007); Christopher v. Harbury, 536 U.S. 403 (2002);
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).
survive dismissal,
the
complaint's
allegations
must
“To
plausibly
suggest that the [plaintiff] has a right to relief, raising that
possibility
above
a
speculative
level;
if
plaintiff's complaint should be dismissed.”
they
do
not,
the
James River Ins. Co.
v. Ground Down Eng'g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56(2007)).
See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir.
2010).
The former rule—that “[a] complaint should be dismissed
only if it appears beyond doubt that the plaintiffs can prove no
set of facts which would entitle them to relief,” La Grasta v.
-5-
First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)—has been
retired.
the
Twombly. James River Ins. Co., 540 F.3d at 1274.
Court
engages
in
a
two-step
approach:
“When
Thus,
there
are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an
entitlement to relief.”
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Dismissal is warranted under Fed.R.Civ.P. 12(b)(6) if, assuming the
truth of the factual allegations of plaintiff's complaint, there is
a dispositive legal issue which precludes relief.
Neitzke v.
Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford Cnty., 960
F.2d 1002, 1009–10 (11th Cir. 1992).
III.
Defendants seek to dismiss the Complaint for lack of subject
matter jurisdiction because of the Eleventh Amendment to the United
States Constitution and the Tax Injunction Act, 28 U.S.C. § 1341.
Defendants further aver that the Court lacks jurisdiction because
plaintiffs’
claims
are
not
ripe
for
review.
Alternatively,
Defendants seek to dismiss the complaint for failure to state a
claim upon which relief may be granted.
-6-
A.
Eleventh Amendment and State Agencies
The Florida Cabinet6 and the Florida Department of Revenue7
contend that plaintiffs’ claims against them should be dismissed
because claims against state agencies in federal court are barred
by the Eleventh Amendment to the United States Constitution.
Plaintiffs respond that this case falls within the exception to
Eleventh Amendment sovereign immunity set forth by the Supreme
Court in Ex parte Young, 209 U.S. 123 (1908), and that Florida has
specifically waived its Eleventh Amendment immunity in all cases
involving the issue of illegally collected fees.
The Court agrees
with the defendants.
“Sovereign immunity is the privilege of the sovereign not to
be sued without its consent.”
Va. Office for Prot. & Advocacy v.
Stewart, 131 S. Ct. 1632, 1637 (2011).
A component of this
sovereign immunity is set forth in the Eleventh Amendment to the
Constitution, which provides that:
The judicial power of the United States shall not be
construed to extend to any suit in law or equity,
6
The Cabinet is created by Article IV, Section 4 of the
Florida Constitution which states, “[t]here shall be a cabinet
composed of an attorney general, a chief financial officer, and a
commissioner of agriculture. In addition to the powers and duties
specified herein, they shall exercise such powers and perform such
duties as may be prescribed by law . . . .” F.L. Const. art. IV,
§ 4.
7
The Department of Revenue is created by Fla. Stat. § 20.21,
which further provides that the Governor and Cabinet shall serve as
the head of the department.
-7-
commenced or prosecuted against one of the United States
by citizens of another state, or by citizens or subjects
of any foreign state.
U.S. Const. amend XI.
Despite its language, it is well settled
that the Eleventh Amendment bars suits brought in federal courts by
a state’s own citizens as well as by citizens of another state.
Williams v. Bd. of Regents of Univ. Sys., 441 F.3d 1287, 1303 (11th
Cir. 2006); Williams v. Dist. Bd. of Trs. of Edison Comm. Coll.,
421 F.3d 1190, 1192 (11th Cir. 2005).
The Eleventh Amendment
applies not only to the State, but to a state agency which is an
arm of the state.
Williams, 421 F.3d at 1192.
The Florida Cabinet
and Florida Department of Revenue are such agencies of the State of
Florida.
See footnotes 6, 7.
Because “[s]tate sovereign immunity is not absolute, . . .” In
re Diaz, 647 F.3d 1073, 1082 (11th Cir. 2011), this court will have
jurisdiction over the two state agencies only if an exception to
Eleventh Amendment immunity applies.
Three general exceptions are
applicable to the Eleventh Amendment’s jurisdictional bar: (1) A
state’s immunity may be abrogated by an act of Congress under
section 5 of the Fourteenth Amendment; (2) a state may waive its
sovereign immunity; or (3) the claim may fall within the confines
of Ex parte Young, 209 U.S. 123 (1908).
Va. Office for Protection
& Advocacy, 131 S. Ct. at 1637-38; Grizzle v. Kemp, 634 F.3d 1314,
1319 (11th Cir. 2011).
Plaintiffs do not assert that Congress has
abrogated Florida’s Eleventh Amendment immunity, and it is clear
-8-
that § 1983 has not done so.
Quern v. Jordan, 440 U.S. 332 (1979);
Williams, 441 F.3d at 1303 (“Congress has not abrogated states’
immunity from § 1983 suits.”)
Plaintiffs do argue, however, that Florida has waived its
Eleventh Amendment immunity in this type of case.
Plaintiffs
contend that Florida has historically declined to assert the
privilege of sovereign immunity in cases challenging the validity
of one of its statutes, citing State ex rel. Florida Dry Cleaning
& Laundry Bd. v. Atkinson, 188 So. 834 (Fla. 1938), and that
Florida has specifically waived the Eleventh Amendment immunity in
all cases involving the question of illegally collected fees,
citing Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla. 1994) and
Bill Stroop Roofing Inc. v. Metro. Dade Cnty., 788 So. 2d 365 (Fla.
3rd DCA 2001).
The Court is not persuaded by either argument.
It is certainly true that “[a] State may waive its sovereign
immunity at its pleasure.”
131 S. Ct. at 1638.
Va. Office for Protection & Advocacy,
Waiver of the state’s Eleventh Amendment
immunity, however, must be clear and will not be easily found.
Maynard v. Bd. of Regents, 342 F.3d 1281, 1287-88 (11th Cir. 2003).
A state’s waiver of immunity from suits filed in state court does
not waive immunity for suits filed in federal court.
Murray v.
Wilson Distilling Co., 213 U.S. 151, 172 (1909); Chandler v. Dix,
194 U.S. 590, 591-592 (1904);
Schopler v. Bliss, 903 F.2d 1373,
1379 (11th Cir. 1990)(“Evidence that a state has waived sovereign
-9-
immunity in its own courts is not by itself sufficient to establish
waiver of Eleventh Amendment immunity from suit in federal court .
. . .”)
The State of Florida has not waived sovereign immunity for §
1983 actions generally.
(11th Cir. 1986).
Zatler v. Wainwright, 802 F.3d 397, 400
Additionally, the State of Florida has not
waived its sovereign immunity for federal suits challenging its
statutes generally or its fee-imposing statutes in particular. The
cases relied upon by plaintiffs were all filed in state court and
all involved sovereign immunity under state law, not the Eleventh
Amendment.
State ex rel Florida Dry Cleaning & Laundry Bd., 188
So. 834 (Fla. 1938); Kuhnlein, 646 So. 2d at 721; Bill Stroop
Roofing Inc., 788 So. 2d at 368.
The Court finds that plaintiffs
have not established that the State of Florida has waived its
Eleventh Amendment immunity as to any of the claims in this case.
Plaintiffs next argue that the exception set forth in Ex parte
Young extends not only to state officials sued in their official
capacities
agencies.
Young
is
for
prospective
relief,
This is simply incorrect.
that
“a
suit
alleging
a
but
to
States
and
state
The theory behind Ex Parte
violation
of
the
federal
constitution against a state official in his official capacity for
injunctive relief on a prospective basis is not a suit against the
state, and, accordingly, does not violate the Eleventh Amendment.”
Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011).
-10-
The
exception does not extend to the state or state agencies.
Eubank
v. Leslie, 210 F’Appx. 837, 844 (11th Cir. 2006)(“State agencies,
however, are never subject to unconsented suit, even under the
doctrine of Ex parte Young.
sued
for
Ex parte Young applies only when state
officials
are
prospective
relief
in
their
capacity.
It does not permit suit against state agencies or the
state itself, even when the relief is prospective.”
official
(citations
omitted)); Monroe v. Ark. State Univ., 495 F.3d 591 (8th Cir.
2007)(dismissing suit against state agency because Ex parte Young
applies to suits against state officials rather than states and
state agencies).
Neither case cited by plaintiffs extended the Ex parte Young
doctrine to a state or state agencies.
Kentucky v. Graham, 473
U.S. 159 (1985) did not extend the reach of Ex parte Young to
states or their entities.
Scott v. Taylor, 405 F.3d 1251, 1255
(11th Cir. 2005). Will v. Michigan Dep’t of State Police, 491 U.S.
58, 63 (1989) involved a case filed in state court, and therefore
did not involve the Eleventh Amendment. (“Petitioner filed the
present § 1983 actions in Michigan state court, which places the
question whether a State is a person under § 1983 squarely before
us
since
the
Eleventh
Amendment
does
not
apply
in
state
courts”)(emphasis added)(citations omitted)).
Finally,
plaintiffs
seem
to
suggest
that
the
Eleventh
Amendment jurisdictional bar is not applicable in cases where a
-11-
fundamental
aspect
of
life
is
involved,
Connecticut, 401 U.S. 371 (1971).8
citing
Boddie
v.
Plaintiffs contend that this
case also involves a fundamental aspect of life, the preservation
of the family homestead.
(Doc. #23, p. 7.)
This contention is without merit.
The only defendants before
the Supreme Court in Boddie were state officials sued in their
official capacities since the District Court had dismissed the
state as a party because the plaintiffs “concede[d] that the State
of
Connecticut is not a proper party to [the] action.”
Supp. 968, 971 (D. Conn. 1968).
286 F.
Furthermore, jurisdiction does
not distinguish between causes of action on the basis of which are
deemed more important than others.
If a federal court lacks
subject matter jurisdiction, it is simply powerless to proceed.
Univ. of South Alabama v. Am. Tobacco Co., 168 F.3d 405, 409-10
(11th Cir. 1999).
In sum, the Eleventh Amendment applies to the Florida Cabinet
and the Florida Department of Revenue, and there is no applicable
exception.
This Court lacks jurisdiction over plaintiffs’ claims
against the Florida Cabinet and the Florida Department of Revenue.
All three counts are therefore dismissed without prejudice as to
the Florida Cabinet and the Florida Department of Revenue.
8
In Boddie, the Supreme Court considered whether the
assessment of a filing fee for indigents who sought a divorce was
unconstitutional.
-12-
B.
Eleventh Amendment and Refund of Fees
The individual defendants sued in their official capacities
contend that plaintiffs’ refund request is in essence a claim for
damages because
Treasury.
such
refunds
would
be
paid
from
the
Florida
As such, these plaintiffs argue the Complaint must
dismissed because of the Eleventh Amendment.
be
Plaintiffs respond
that the Eleventh Amendment does not “insulate the state from its
moral and legal duty to refund illegally collected fees and taxes.”
(Doc. #23, p. 8.)
Plaintiffs further argue they do not seek
damages, but rather seek the equitable remedy of disgorgement. Id.
The Eleventh Amendment does not insulate a state from moral or
legal duties.
It does, however, direct that lawsuits against the
state be filed in state court unless an exception to the Eleventh
Amendment is applicable.
A claim for a refund from a state which
will be paid from the state treasury is effectively a suit against
the state for damages, and such relief is precluded in federal
court by the Eleventh Amendment.
Florida Ass’n v. Rehab. v. Fla.
Dept. of Health, 225 F.3d 1208, 1221 (11th Cir. 2000)(“Quite
simply, the Eleventh Amendment's immunity is triggered when a
declaration or injunction effectively calls for the payment of
state funds as a form of compensation for past breaches of legal
duties by state officials.”); Summit Med. Assocs., P.C. v. Pryor,
180 F.3d 1326, 1337 (11th Cir. 1999)(“If the prospective relief
sought is the functional equivalent of money damages, however,
-13-
i.e., ‘[i]t is measured in terms of a monetary loss resulting from
a past breach of a legal duty,’ Ex parte Young does not apply”,
quoting Edelman v. Jordan, 415 U.S. 651, 669 (1974)).
As the
Supreme Court recently stated, the Ex parte Young doctrine
does not apply when the state is the real, substantial
party in interest, as when the judgment sought would
expend itself on the public treasury or domain, or
interfere with public administration.
Thus, Ex parte
Young cannot be used to obtain an injunction requiring
the payment of funds from the State's treasury, or an
order for specific performance of a State's contract.
Va. Office for Protection & Advocacy, 131 S. Ct. at 1638(citations
and internal punctuation omitted.)9
Accordingly, that portion of Count I which seeks the creation
of a separate account to facilitate any refund that may be ordered,
and those portions of Counts II and III which seek an order
requiring a refund of all fees paid pursuant to the statute, are
dismissed
for lack
of
subject
matter
jurisdiction
as
to
the
individual defendants in their official capacities.
C.
Tax Injunction Act
What remains of the Complaint are portions of all counts
against the individual defendants in their official capacities.
9
Alternatively, the Tax Injunction Act (“TIA”), 28 U.S.C. §
1341, would preclude the request for a refund order.
Kania v.
Nelson, 315 F’Appx. 151, 151-52 (11th Cir. 2008)(“The TIA bars
claims not only for injunctive or declaratory relief, but also for
refunds and damages, as a monetary award would have the same effect
on the State as if the prospective relief had been granted.”);
Osceola v. Fla. Dept. of Revenue, 893 F.2d 1231, 1233 (11th Cir.
1990)(Tax Injunction Act bars federal suit for tax refund).
-14-
Specifically, the portion of Count I which seeks injunctive relief
against
the
collection
of
the
filing
fees
and
dismissal
of
compulsory claims for failing to pay; the portion of Count II which
seeks a declaratory judgment that the statute violates the due
process provision of the Fifth and Fourteenth Amendment and an
order
requiring
defendants
to
cease
and
desist
imposing
and
collecting the fees; and the portion of Count III which seeks a
declaratory
judgment
that
the
statute
violates
the
Florida
Constitution’s access to courts provision and an order requiring
defendants to cease and desist imposing and collecting the fees.
Defendants
seek
to
dismiss
the
Complaint
for
lack
of
jurisdiction pursuant to the Tax Injunction Act (“TIA”), 28 U.S.C.
§ 1341. Defendants argue that although the contested statute calls
the charge a “fee,” it is in fact a “tax” because the funds are
deposited
in
the
state’s
general
revenue
fund,
making
them
available for general government purposes. Plaintiffs respond that
Crist v. Ervin,56 So. 3d 745 (Fla. 2010) held that the contested
filing fee is not a tax, and that defendants have asserted an
inconsistent position in an unrelated pending case, McCollum v.
United States Dept. of Health and Human Servs., 716 F.Supp.2d 1120
(N.D. Fla. 2010).
The Tax Injunction Act provides that “[t]he district courts
shall not enjoin, suspend or restrain the assessment, levy or
collection of any tax under State law where a plain, speedy and
-15-
efficient remedy may be had in the courts of such State.”
U.S.C. § 1341.
28
“The limitation imposed by the Tax Injunction Act
is jurisdictional.”
Amos v. Glynn Cnty. Bd. of Tax Assessors, 347
F.3d 1249, 1255 (11th Cir. 2003); Cohen v. World Omni Fin. Corp.,
426 F’Appx. 766, 770-71 (11th Cir. 2011)(Tax Injunction Act “is a
jurisdiction-stripping statute”.)
While the Act on its face bars
only injunctive relief, the United States Supreme Court has applied
the Act to suits for declaratory relief and damages as well.
Osceola v. Fla. Dept. of Revenue, 893 F.2d 1231, 1233 (11th Cir.
1990), citing California v. Grace Brethren Church, 457 U.S. 393,
408 (1982)(“we now conclude that the Act also prohibits a district
court from issuing a declaratory judgment holding state tax laws
unconstitutional.”) and Rosewell v. La Salle Nat’l Bank, 450 U.S.
503 (1981).
The Tax Injunction Act “was first and foremost a vehicle to
limit drastically federal district court jurisdiction to interfere
with so important a local concern as the collection of taxes.”
Amos, 347 F.3d at 1256, quoting Rosewell, 450 U.S. at 522.
The
Eleventh Circuit has held that “the Tax Injunction Act bars the
exercise of federal jurisdiction if two conditions are met: (1) the
relief
requested
by
the
plaintiff
will
‘enjoin,
suspend,
or
restrain’ a state tax assessment and (2) the state affords the
plaintiff a ‘plain, speedy and efficient remedy.’”
Amos, 347 F.3d
at 1255, quoting Williams v. City of Dothan, Ala., 745 F.2d 1406,
-16-
1411 (11th Cir. 1984).
The burden is on plaintiffs to show facts
sufficient to overcome the jurisdictional bar of the Tax Injunction
Act.
Amos, 347 F.3d at 1256.
Florida does provide a “plain, speedy, and efficient remedy”
for tax challenges.
Osceola, 893 F.2d at 1233.
The parties
dispute, however, whether the court filing fees at issue are a
“tax” within the meaning of the Tax Injunction Act.
State law
determinations are considered, Zipperer v. City of Fort Myers, 41
F.3d 619, 622 (11th Cir. 1995), but federal law determines what
constitutes
a
tax
under
the
Tax
Injunction
Act.
Tramel
v.
Schrader, 505 F.2d 1310, 1314-16 (5th Cir. 1975)10.
In Crist, supra, the Florida Supreme Court reversed the trial
court’s finding that Fla. Stat. §§ 28.241(1)(a), 28.241(a)(2)(d),
28.241(2), 34.041(1)(b) and 28.2455, Florida Statutes (2009) are
unconstitutional and void.
The trial court had found that because
these statutes imposed a filing fee which is deposited to the
general revenue fund for unrelated government activities, the
Florida Legislature had imposed an unconstitutional tax which
denied
access
Constitution.
to
the
Courts
in
violation
of
the
Florida
The Florida Supreme Court found that the statutes,
both on their face and as applied, were not an unconstitutional tax
10
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc) the Eleventh Circuit adopted as binding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
-17-
even though the funds were deposited in a general revenue fund
because
the
Legislature
appropriated
more
to
support
the
administration of justice than the amount of civil fees deposited
into
the
general
revenue
fund.
Crist,
56
So.
2d
at
749.
Accordingly, the contested fee was not a “tax” under Florida law.
The Court is not convinced the result is any different under
Federal law.11
Further, the Court is not persuaded by plaintiffs’ contention
that the Defendants should be constrained to their position in
McCollum v. United States Dept. of Health and Human Servs., 716
F.Supp. 1120(N.D. Fla. 2010).
The Attorney General did not argue
the difference between a tax and a fee in McCollum for purposes of
determining jurisdiction in Federal Court under the TIA.
Having found that the contested fee is not a “tax” pursuant to
the TIA, the Court denies defendants’ motion insofar as it seeks to
dismiss the remainder of the Complaint for lack of jurisdiction
under the TIA.
11
The preeminent test for determining what constitutes a “tax”
for purposes of the TIA under Federal law is a three factor test
set forth in San Juan Cellular Tel. Co. v. Public Serv. Comm’n of
Puerto Rico, 967 F.2d 683 (1st Cir. 1992)that considers: (1) the
entity imposing the fee; (2) the parties who are being assessed the
fee; and (3) whether the funds generated by the fee are expended
for general public purposes or used for the regulation and benefit
of the parties upon whom the assessment is imposed. The Eleventh
Circuit has not determined the appropriate test for determining
what constitutes a “tax” under the TIA.
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D.
Additional Jurisdictional Issues: Ripeness
Defendants also contend that jurisdiction is lacking because
plaintiffs’
claims
are
not
ripe
for
review.
Specifically,
defendants contend that Florida law provides for an indigencey
waiver of the filing fee.
Defendants contend that plaintiff’s
claims are not ripe until such time as they apply for, and are
denied, an indigencey waiver.
Defendants further assert that if
plaintiffs are granted an indigencey waiver, there will be no
concrete
injury
or
controversy
that
requires
the
court’s
intervention.
In response, plaintiffs assert that whether they are indigent
is irrelevant because regardless of ability to pay, the contested
statute is unconstitutional.
Further, plaintiffs contend that all
persons who have been charged the filing fees at this time have
“ripe claims.”
(Doc. #23, pp. 14-15.)
The issue of ripeness raises basic questions of jurisdiction
that cannot be waived and goes to the very heart of the “case or
controversy” requirement of Article III of the U.S. Constitution.
Florida Ass’n of Rehab Facilities, Inc. v. State of Fla. Dep’t of
Health and Rehabilitative Servs., 225 F.3d 1208, 1227 n. 14 (11th
Cir. 2000.
“To determine whether a claim is ripe . . . we must
examine whether there is sufficient injury to meet Article III’s
requirement of a case or controversy, and if so, whether the claim
is sufficiently mature, and the issues sufficiently defined and
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concrete
to
permit
effective
decision-making
by
the
court.”
Coalition for the Abolition of Marijuana Prohibition v. City of
Atlanta, 219 F.3d 1301, 1315 (11th Cir. 2000)(internal quotations
and citations omitted).
See also Natl’l Adver. Co. v. City of
Miami, 402 F.3d 1335, 1339 (11th Cir. 2005).
The Court finds that this case is ripe for adjudication and
that the plaintiffs allege sufficient injury in the Complaint to
satisfy the case or controversy requirement.
Plaintiffs have
clearly pled that they are defendants in various foreclosure
proceedings throughout the State of Florida and are currently being
assessed a filing fee pursuant to the challenged statute.
Doc. #1, ¶¶22-24.)
(See
Further, the Complaint asserts that regardless
of the ability to pay, plaintiffs’ rights are violated under the
statute.
(Id. at ¶66 - “Similarly, defendants with the ability to
pay will be unjustly compelled to pay the illegal filing fees in
order to heard in court.”)
Accordingly, plaintiffs’ Complaint
clearly challenges the statute as to everyone and not just as it
applies to individuals without the means to pay the required fee.
Defendants have pointed to no case that holds that when the
existence of a fee is challenged, plaintiffs must apply for an
indigencey
waiver
before
their
claims
are
considered
ripe.
Plaintiffs have demonstrated a sufficient injury that is defined,
concrete,
and
mature
for
controversy requirement.
purposes
of
Article
III’s
case
or
Therefore, defendants’ motion to dismiss
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is denied insofar as defendants’ allege that plaintiffs’ claims are
not ripe for review.
E.
Failure to State a Claim
Defendants
also
argue
that
assuming
the
Court
has
jurisdiction, the Complaint fails to state claims upon which relief
may be granted.
Specifically, defendants assert that plaintiffs
must specifically identify the compulsory counterclaims and cross
claims they seek to assert.
Further, defendants contend that the
Complaint itself demonstrates that plaintiffs have been able to
bring their counterclaims.
None of the access to courts cases cited by defendants (Doc.
#7, pp. 9-10) address the specific issues in this case. Defendants
have cited no case holding that plaintiffs must specifically
identify the compulsory claims they would assert but for the filing
fee statute.
Plaintiffs have set forth plausible claims for
declaratory and injunctive relief, which is all that is required at
this stage of the proceedings.
Accordingly, defendants motion is
denied insofar as it seeks to dismiss the remainder of the claims
for failure to state a claim pursuant to Rule 12(b)(6).
Defendants also contend that plaintiffs have failed to state
a
claim
that
Specifically,
the
statute
defendants
violates
contend
the
that
Florida
the
filing
Constitution.
fee
statute
withstands strict scrutiny under Florida law because it discourages
frivolous litigation and funds the operation of the court, which
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are compelling state interests. Further, defendants argue that the
fee is narrowly tailored and does not impose a substantial burden
on court access because fees are subject to waiver under Florida
law.
The Court is satisfied that under the standard summarized
above
plaintiffs’ have sufficiently set forth a plausible claim
that Fla. Stat. § 28.241(c) violates Article I, section 21, of the
Florida Constitution.
not
be
born
out,
but
Defendant’s factual assertions may or may
at
this
stage
of
the
litigation
the
allegations are sufficient to withstand a Rule 12(b)(6) motion to
dismiss.
Accordingly, defendants’ motion to dismiss Count III of
the Complaint for failure to state a claim is denied.
F.
Supplemental Jurisdiction
Finally, defendants assert that the Court should decline to
exercise supplemental jurisdiction over the state claim because the
question
of
law
presented
is
novel
and
complex.
Further,
defendants contend that supplemental jurisdiction should not be
exercised if the federal claims are dismissed.
Because the Court has not dismissed all of the Federal claims,
the Court declines to withhold supplemental jurisdiction pursuant
to 28 U.S.C. § 1367(3).
Additionally, the Court is not persuaded
that the issue at hand is such a novel or complex issue of State
law that it would be inappropriate to exercise jurisdiction.
-22-
Accordingly, it is now
ORDERED:
Defendants’ Motions to Dismiss (Docs. #7-9, 10,22) are GRANTED
IN PART AND DENIED IN PART as follows:
(1)
The
motions
are
GRANTED
to
the
extent
that
all
of
plaintiffs’ claims against the Florida Cabinet and the Florida
Department of Revenue are DISMISSED WITHOUT PREJUDICE for lack of
subject matter jurisdiction.
(2) The motions are GRANTED to the extent that the portion of
Count
I
which
seeks
the
creation
of
a
separate
account
to
facilitate any refund that may be ordered, and those portions of
Counts II and III which seek an order requiring a refund of all
fees paid pursuant to the statute, are DISMISSED WITHOUT PREJUDICE
for lack of subject matter jurisdiction as to the individual
defendants in their official capacities.
(3) The motions are otherwise DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2011.
Copies:
Counsel of record
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30th
day of
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