Gwinnett County, Georgia et al v. Netflix, Inc. et al
Filing
50
OPINION AND ORDER denying as moot #42 Motion to Stay; granting #11 Motion to Remand to State Court to the Superior Court of Gwinnett County, Georgia. Signed by Judge Michael L. Brown on 8/5/2021. (dob)
Case 1:21-cv-00021-MLB Document 50 Filed 08/05/21 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Gwinnett County, Georgia, et al.,
Plaintiffs,
Case No. 1:21-cv-21-MLB
v.
Netflix, Inc., et al.,
Defendants.
________________________________/
OPINION & ORDER
This case is before the Court on Defendants’ Motion to Stay (Dkt.
42) and Plaintiffs’ Motion to Remand (Dkt. 11).
I.
Background
Georgia’s Consumer Choice for Television Act (the “Television Act”)
requires “video service provider[s]” either to acquire a state franchise
from the Secretary of State for service areas in which they provide “video
service” or to negotiate directly with a municipal or county franchise
authority. O.C.G.A. § 36-76-3. Holders of franchises must pay franchise
fees to local governing authorities in the holder’s service area, provided
the governing authorities have given proper notice. O.C.G.A. § 36-76-6.
Case 1:21-cv-00021-MLB Document 50 Filed 08/05/21 Page 2 of 23
The Television Act defines “video service” as “the provision of video
programming through wireline facilities located at least in part in the
public rights of way without regard to delivery technology, including
Internet protocol technology.” O.C.G.A. § 36-76-2(16). This definition
does not include “any video programming provided by a provider of
commercial mobile service as defined in 47 U.S.C. Section 332(d) or video
programming provided as part of and via a service that enables users to
access content, information, e-mail, or other services offered over the
public Internet.” Id.
On November 23, 2020, Plaintiffs filed a petition for declaratory
judgment and other relief against Defendants in Gwinnett County
Superior Court alleging Defendants are video service providers under the
Television Act but have failed to comply with its requirements. (Dkt. 1,
Ex. A.) Defendant DIRECTV, LLC removed the case asserting diversity
jurisdiction and jurisdiction under the Class Action Fairness Act
(“CAFA”).
(Dkt. 1.)
Plaintiffs moved to remand under the comity
abstention doctrine. (Dkt. 11.) In response, Defendants argue that the
Supreme Court and Eleventh Circuit have barred non-statutory remands
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of properly removed actions, and that, even if comity could apply, comity
abstention under CAFA would be improper. (Dkt. 39 at 6, 9.)
This is not the first case in which municipalities have sued
Defendants for failure to pay these types of fees. In 2018, the City of
Creve Coeur, Missouri filed cases against the same Defendants (except
Disney DTC) in Missouri state court based on Defendants’ failure to pay
fees under Missouri’s version of the Television Act. City of Creve Coeur
v. DIRECTV, LLC, No. 4:18cv1453, 2019 WL 3604631 (E.D. Mo. Aug. 6,
2019). Defendants removed both cases to federal court. The federal court
remanded under comity abstention, and Eighth Circuit denied
immediate review. City of Creve Coeur v. DirecTV, LLC, No. 19-8016,
2019 WL 7945996, at *1 (8th Cir. Sept. 12, 2019).
In August 2020, four cities in Indiana filed a case against the same
five Defendants in Indiana state court based on Defendants’ failure to
pay franchise fees to Indiana municipalities under Indiana’s version of
the Television Act. Again, Defendants removed to federal court, and the
district court remanded based on the doctrine of comity abstention. City
of Fishers v. Netflix, Inc., 501 F. Supp. 3d 653, 2020 WL 6778426 (S.D.
3
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Ind. Nov. 18, 2020). The Seventh Circuit affirmed. City of Fishers v.
DIRECTV, --- F.4th ----, 2021 WL 3073368 (7th Cir. July 21, 2021).1
II.
Legal Standard
An action filed in state court may be removed to federal court only
if the action originally could have been brought in federal court. 28 U.S.C.
§ 1441(a). Diversity jurisdiction under 28 U.S.C. § 1332(a) requires that
no defendant have the same citizenship as plaintiff and that the amount
in controversy exceed $75,000 (excluding interest and costs). CAFA,
which Congress enacted “to facilitate the adjudication of certain class
actions in federal court,” Dart Cherokee Basin Operating Co. v. Owens,
574 U.S. 81, 89 (2014), allows a defendant to remove a class action to
federal district court so long as the case satisfies the statute’s special
diversity and procedural requirements, all of which the parties agree are
satisfied in this case.2
CAFA, however, has exceptions to federal
On March 10, 2021, Defendants moved to stay Plaintiffs’ remand motion
pending the Seventh Circuit’s resolution of City of Fishers. (Dkt. 42.)
Because the Seventh Circuit has now resolved that appeal, Defendants’
motion is denied as moot.
2 CAFA requires only minimal diversity of citizenship among parties,
meaning at least one plaintiff and one defendant must be from different
states. 28 U.S.C. § 1332(d)(2). To be removable under CAFA, an action
must also satisfy the statute’s definition of a “class action” or a “mass
1
4
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jurisdiction for cases that are truly local in nature. 28 U.S.C.
§ 1332(d)(4).3 But again, the parties do not claim any of those statutory
provisions apply.
Plaintiffs’ concession that Defendants properly removed this case
to federal court provides a strong basis for this Court to deny remand.
After all, the Court (like all federal courts) has a “virtually unflagging
obligation” to exercise the jurisdiction given it by the Constitution and
laws of the United States. Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976). “When a Federal court is properly
appealed to in a case over which it has by law jurisdiction, it is its duty
to take such jurisdiction . . . . The right of a party plaintiff to choose a
action.” See 28 U.S.C. § 1332(d)(1)(B); 28 U.S.C. § 1332(d)(11)(B).
Finally, the amount in controversy must exceed $5 million, exclusive of
interest and costs. 28 U.S.C. § 1332(d)(2).
3 CAFA’s local controversy and home state exceptions, for example,
require a federal court to decline jurisdiction when more than two-thirds
of the putative class and at least one defendant from whom significant
relief is sought are citizens of the state in which the action was originally
filed, provided the principal injury was also incurred in that state and no
similar class action had been filed in the three previous years. 28 U.S.C.
§ 1332(d)(4)(B). It also precludes the exercise of jurisdiction when at least
two-thirds of the class members and the primary defendants are citizens
of the state in which the action was originally filed. 28 U.S.C.
§ 1332(d)(4)(B).
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Federal court where there is a choice cannot be properly denied.” Willcox
v. Consolidated Gas Co., 212 U.S. 19, 40 (1909). “Abstention from the
exercise of federal jurisdiction is the exception, not the rule.” Colo. River,
424 U.S. at 813.
Congress passed the Tax Injunction Act of 1937 (the “TIA”) to limit
the district court’s authority over certain tax-related matters. It provides
that “the district courts shall not enjoin, suspend or restrain the
assessment, levy or collection of any tax under State law where a plain,
speedy and efficient remedy may be had in the courts of such State.” 28
U.S.C. § 1341. The TIA, “by its terms,” “bars anticipatory relief, suits to
stop (‘enjoin, suspend or restrain’) the collection of taxes.” Jefferson Cnty.
v. Acker, 527 U.S. 423, 433 (1999). No party argues the TIA applies here.
Instead, Plaintiffs ask the Court to remand this matter under the
doctrine of comity abstention. That doctrine encourages federal courts to
avoid “interfer[ing] . . . with the fiscal operations of the state
governments . . . in all cases where the Federal rights of the persons could
otherwise be preserved unimpaired.” Levin v. Commerce Energy, Inc.,
560 U.S. 413, 422 (2010) (quoting Boise Artesian Hot & Cold Water Co. v.
Boise City, 213 U.S. 276, 282 (1909)). That doctrine is alive and strong
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today. In Levin v. Commerce Energy, Inc., for example, a natural gas
marketer
sued
the
state
tax
commissioner
of
Ohio,
claiming
discriminatory tax treatment under the Commerce Clause and the Equal
Protection Clause in relation to a tax imposed on natural gas marketers
but not local distribution companies. Id. at 418, 419. The district court
dismissed the lawsuit, citing comity abstention, but the Sixth Circuit
reversed, finding the district court’s application of comity was too
expansive.
Id. at 419–20.
The Supreme Court then reversed the
appellate court, holding the comity doctrine was not so limited and
required the claims to proceed in state court. Id. at 432–33. In doing so,
the Court sought to “ensure that ‘the National Government, anxious
though it may be to vindicate and protect federal rights and federal
interests, always endeavors to do so in ways that will not unduly interfere
with the legitimate activities of the States.’” Id. at 431 (quoting Younger
v. Harris, 401 U.S. 37, 44 (1971)).
In both City of Creve Coeur and City of Fishers, the federal courts
cited Levin to conclude that the comity doctrine warranted remand to
state court of class actions brought by cities to collect franchise fees from
video-service providers under the respective state’s regulatory schemes.
7
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City of Creve Coeur, 2019 WL 3604631, at *4-5; City of Fishers, 2020 WL
6778426 at *6. The City of Creve Coeur court, for example, noted first
that “both Satellite Defendants and Streaming Defendants, by removing
these cases, have invited federal-court review of commercial matters of
which Missouri and Missouri municipalities enjoy wide regulatory
latitude.” 2019 WL 3604631 at *5 (internal citation, quotation marks,
and alternations omitted). Second, the court found “the state court will
be a better forum for certain defenses related to the application of
Missouri law and the Missouri Constitution because without question the
state court is more familiar with Missouri’s tax laws and the intent of the
Missouri legislation.”
omitted).
Id. (internal quotation marks and alterations
Finally, the court found Missouri courts were in the best
position “to rule on any potential constitutional violation because they
are more familiar with the state legislative preferences and because the
TIA does not constrain their remedial options.” Id. (internal quotation
marks omitted).
The Seventh Circuit (and district court) in City of
Fishers reached similar conclusions in regard to Indiana’s Video Service
Franchises Act. 2021 WL 3073368, at *5–6; 2020 WL 6778426, at *6.
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III. Discussion
A.
District Courts Have Authority to Remand on a NonStatutory Basis Under the Comity Doctrine.
The Supreme Court’s comity doctrine requires a “scrupulous regard
for the rightful independence of state governments which should at all
times actuate the federal courts.” Fair Assessment in Real Estate Ass’n
v. McNary, 454 U.S. 100, 108 (1981). Accordingly, courts should “in all
cases” refrain from interfering “with the fiscal operations of the state
governments.” Levin, 560 U.S. at 422.
Despite the Supreme Court’s emphasis on comity, Defendants
argue this Court has no authority to remand on a non-statutory basis. In
making this argument, Defendants rely primarily on Thermtron
Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976).
Defendants
recognize the Supreme Court abrogated Thermtron on other grounds in
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996). (Dkt. 39 at 7.) But
Defendants also mischaracterize the effect of the Supreme Court’s
decision in Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 353 (1988), on
the application to Thremtron to cases such as this.
Specifically,
Defendants argue Carnegie-Mellon “reiterate[s]” that where “a district
court has diversity jurisdiction over the claims it ‘has no authority to
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decline to hear the removed case.’” (Dkt. 39 at 17.) Not correct. In
Carnegie-Mellon, the Court settled a split among circuits as to whether a
district court has the authority to remand in the absence of statutory
authority, clarifying that “[t]he statement in [Thermtron] that a case may
not be remanded on a ground not specified in the removal statute applies
only to situations in which the district court has no authority to decline
to hear the removed case,” and not where “the district court has
undoubted discretion to decline to exercise jurisdiction.” Id. at 344
(emphasis added). And courts, including the Eleventh Circuit, have since
recognized that Carnegie-Mellon clarified district courts’ “power to
remand a removed case in the absence of specific statutory authority.”
Snapper v. Redan, 171 F.3d 1249, 1263 n.26 (11th Cir. 1999); Foster v.
Chesapeake Ins. Co., 933 F.2d 1207, 1217 n.15 (3d Cir. 1991) (holding
that Carnegie–Mellon “clearly overruled Thermtron to the extent that
Thermtron held that only statutory grounds for remand are authorized”).
Thermtron was a strange case, involving a district court that
remanded an otherwise perfectly removable case simply to reduce its
workload. So while courts still rely on Thermtron, they do so only in the
limited circumstances in which the court has no authority to eliminate
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“the case from its docket, whether by remand or dismissal.” CarnegieMellon, 484 U.S. at 356. Indeed, the Supreme Court in Carnegie-Mellon
recognized that while Thermtron was a “clearly impermissible remand”
based on an “overcrowded docket,” “an entirely different situation is
presented when the district court has clear power to decline to exercise
jurisdiction,” which “best serves the principles of economy, convenience,
fairness, and comity which underlie the pendent jurisdiction doctrine.”
Id. at 356–57. The limited application of the Thermtron proposition is
inapplicable here.4
The cases cited by Defendants involved “clearly impermissible remands”
like the one in Thermtron and, notably, do not implicate any comity
considerations. See Lloyd v. Benton, 686 F.3d 1225, 1228 (11th Cir. 2012)
(seeking remand with no common law or statutory basis); Stern v. First
Liberty Ins. Corp., 424 F. Supp. 3d 1264, 1275 (S.D. Fla. 2020) (seeking
remand based on argument that Florida has an interest in resolving
insurance disputes); Davis v. Deutsche Bank Nat’l Tr. Co., No. 1:14-CV3847-ELR-LTW, 2015 WL 12839491, at *3 (N.D. Ga. May 14, 2015)
(seeking remand because “it would be more convenient”); Young v. Smith,
No. CV 214-109, 2015 WL 1541686, at *6 (S.D. Ga. Mar. 31, 2015)
(seeking remand because “it was the Plaintiff’s preference”); Biscayne
Park, LLC v. Madison Realty Capital, L.P., No. 13-20336-CIV, 2013 WL
2243975, at *3 (S.D. Fla. May 21, 2013) (seeking remand because the
“case feels like the extension of a previous proceeding”); Lamar v. Home
Depot, 907 F. Supp. 2d 1311, 1315 (S.D. Ala. 2012) (seeking remand with
no statutory basis).
4
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Admittedly, Carnegie-Mellon involved the viability of remand in
context of pendent state law claims—which is not the procedural
situation here. But, the key point in Carnegie-Mellon is that Thermtron
only applies where the district court has “no authority” to decline to hear
the removed case. Id. And where there is power to decline jurisdiction
and dismiss, there is power to remand. See id. at 343 (“A wide discretion
to remand rather than to dismiss will enable district courts to deal with
appropriate cases involving pendent claims in the manner that best
serves the principles of judicial economy, procedural convenience,
fairness to litigants, and comity to the States . . . .”).
As the Supreme
Court’s 150 years of comity cases demonstrate, a court clearly has the
authority to decline to hear disputes that implicate local revenue
collecting.
With that authority to decline a case in favor of state
resolution, comes the Court’s authority to remand the case to the state
court from whence it came.
Indeed, the Third Circuit explicitly held that the reasoning in
Carnegie-Mellon applies to abstention-based remands under the comity
doctrine because “there is no question of the district court improperly
refusing to hear a case properly before it, as occurred in Thermtron.”
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Balazik v. Cnty. of Dauphin, 44 F.3d 209, 217 (3d Cir. 1995) (holding that
“remand is available under McNary” because “unlike Thermtron, it is
clear that the district court not only had the authority to decline to hear
the case, but was in fact required to relinquish jurisdiction under
McNary”). There is no question that district courts have the authority to
remand on a non-statutory basis under the comity doctrine.
A different conclusion is not warranted by virtue of Defendants’
invocation of CAFA jurisdiction. Defendants argue that Congress, in
passing CAFA, silently eliminated the comity doctrine in class cases.
Similar arguments equating silence with statutory intent have been
explicitly rejected by the Supreme Court. See Carnegie-Mellon, 484 U.S.
at 343–344 (“Given that the statute’s silence does not negate the courts’
undoubted power to dismiss such cases, that silence cannot be read to
negate the power to remand them.”).
The Seventh Circuit has also
recognized that CAFA is “such a jurisdictional statute” that must be read
with “sensitivity to ‘federal-state relations.’” Sask. Mut. Ins. Co. v. CE
Design, Ltd., 865 F.3d 537, 542 (7th Cir. 2017) (quoting Levin, 560 U.S.
at 423). And while CAFA’s jurisdictional requirements had not been met
in that case, Levin comity “support[ed]” remand of the class action
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because it “counsels lower federal courts to resist engagement in certain
cases falling within their jurisdiction.” Id. (quoting Levin, 560 U.S. at
421). In the absence of any authority from the Eleventh Circuit, this
Court agrees with the Seventh Circuit’s determination.
Defendants argue that CAFA’s “home state” and “local controversy”
exceptions indicate that Congress had already balanced federal and state
interests and eliminated any additional comity considerations, noting
that courts have characterized the exceptions as a type of “abstention
doctrine.” (Dkt. 39 at 8.) But the exceptions in the statute relate to when
courts shall decline to exercise jurisdiction as it relates to the citizenship
of the parties. 28 U.S.C. § 1332(d)(4).
It is silent as to jurisdiction
regarding disputes involving the fiscal matters of local governments as
well as the comity doctrine generally. And the cases cited by Defendants,
indicating that CAFA’s exceptions operate as an abstention doctrine, do
not involve any comity considerations.5 Absent clear language in the
statute expressing an intention to eliminate the comity doctrine or any
authority from the Eleventh Circuit holding that the comity doctrine does
5
(Dkt. 39 at 8–9.)
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not apply in CAFA cases, the Court does not find Defendants’ invocation
of CAFA jurisdiction to impact this Court’s authority to remand, provided
the Levin factors warrant application of the comity doctrine. See City of
Fishers, 2021 WL 3073368, at * 7 (“The fact that Congress considered
federal-state comity in the CAFA exceptions does not mean that it swept
decades of abstention doctrines off the table.”).
B.
The Levin Factors Support Remand.
In Levin, the Court cited a “confluence of factors,” in reaching its
decision that comity warranted abstention under the facts before it.
First, respondents seek federal-court review of commercial
matters over which Ohio enjoys wide regulatory latitude;
their suit does not involve any fundamental right or
classification that attracts heightened judicial scrutiny.
Second, while respondents portray themselves as third-party
challengers to an allegedly unconstitutional tax scheme, they
are in fact seeking federal-court aid in an endeavor to improve
their competitive position. Third, the Ohio courts are better
positioned than their federal counterparts to correct any
violation because they are more familiar with state legislative
preferences and because the TIA does not constrain their
remedial options. Individually, these considerations may not
compel forbearance on the part of federal district courts; in
combination, however, they demand deference to the state
adjudicative process.
Id. at 431–32.
The Court reaches the same conclusion here. Defendants seek
federal court intervention in matters over which the State of Georgia and
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its
municipalities
have
traditionally
“enjoy[ed]
wide
regulatory
latitude”—specifically, utility regulation and gross revenue fees. Levin,
560 U.S. at 431. And this matter is a dispute over commercial regulation
and does not involve a party’s fundamental rights or a suspect
classification requiring heightened judicial scrutiny. See id.
Second,
Defendants invoke the Court’s jurisdiction “to improve their competitive
position,” id., namely over traditional cable television and landline
telephone providers that pay franchise fees under the Act. (See Dkt. 39
at 4–5 (contending that the General Assembly’s recent consideration of a
proposed digital services tax indicates that it does not view streaming
services as within existing taxes or fees subject to Georgia taxes, and thus
Defendants are not “video service providers” subject to the Television
Act).) Finally, this matter involves an interpretation of Georgia state
law—specifically, certain provisions of the Television Act—for which
there is no existing state court guidance.
Additionally, although
Defendants have yet to file a responsive pleading raising defenses to
Plaintiffs’ claims, Georgia state courts are better positioned than this
Court to correct any potential constitutional or other violation
Defendants may raise because “they are more familiar with state
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legislative preference” concerning the Television Act and because the TIA
constrains remedial options available to the Court. See Levin, 560 U.S.
at 432. Therefore, the Court finds that these considerations, “in
combination,” demand remand in “deference to the state adjudicative
process.” See id.
C.
Defendants’ Remaining Arguments Contravene Levin
Comity and Do Not Weigh Against Remand.
Defendants note that Title 36 of the Georgia Code governs video
service franchises and the franchise fees sought by the local governments
in this case. See O.C.G.A. § 36-76-1, et seq. The statute addresses the
process for granting video service franchises, calculating franchise fees,
and resolving post-audit disputes between holders and municipalities
regarding franchise fees. Id. § 36-76-3, 4, & 6. Defendants argue that
comity abstention only applies to taxpayer claims challenging a state
taxing scheme and that, because the local governments’ enforcement
action are seeking franchise fees that are not part of Georgia’s state tax
statutes, there is no “pending state proceeding” and comity cannot apply.
(Dkt. 39 at 10–11.) But Defendants cite no authority indicating that any
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comity case has ever required a “pending state proceeding” requirement.6
And “nowhere in the Levin ‘confluence of factors’ did the Supreme Court
condition comity abstention on the presence of pending state
proceedings.” City of Fishers, 2021 WL 3073368, at * 7. That there is no
“pending state proceeding” here does not change the Court’s application
of the Levin factors to this case.
Defendants further argue that actions for damages cannot be
remanded based on abstention, relying on Quackenbush v. Allstate Ins.
Co., for the proposition that “‘federal courts have the power to dismiss or
remand cases based on abstention principles only where the relief being
sought is equitable or otherwise discretionary,’ not in a ‘damages action.’”
517 U.S. at 731. But the Court in Quackenbush was discussing Younger
and Burford abstention when making this point, not Levin/McNary
Defendants appear to borrow the “pending state proceeding” language
from cases dealing with Younger and Colorado River abstention, which
by their nature involve parallel state proceedings. But Plaintiffs here
invoked comity—a doctrine not born from parallel proceedings but
instead originating from the desire to avoid interfering with the fiscal
operations of local governments. McNary, 454 U.S. at 108. And the
Supreme Court issued Levin and McNary after Younger and Colorado
River without importing a “pending state proceedings” requirement into
comity.
6
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comity. Id. at 719. And Quackenbush specifically distinguished McNary
in regard to this principle. Id. See McNary, 454 U.S. at 115 (holding
principle of comity barred state taxpayers’ suit for damages brought in
federal court under Civil Rights Act to address allegedly unconstitutional
administration of state tax system); see also City of Fishers, 2021 WL
3073368, at * 7 (“The Supreme Court has permitted abstention in at least
one case involving a request for declaratory relief tied to a damages
action.” (citing McNary)). The Quackenbush Court also acknowledged
the Court had “approved the application of abstention principles in
declaratory judgment actions.” 517 U.S. at 719 (citing Great Lakes
Dredge & Dock Co. v. Huffman, 319 U.S. 293, 297 (1943). In Huffman,
the Court held that comity applies to declaratory judgment actions, even
though “further relief based on a declaratory judgment or decree may be
granted whenever necessary or proper.” 319 U.S. at 300. The Huffman
decision demonstrates “not only the post-[Tax Injunction] Act vitality of
the comity principle, but also its applicability to actions seeking a remedy
other than injunctive relief.” McNary, 454 U.S. at 100 (citing Huffman,
319 U.S., at 299).
“[T]he comity doctrine extends to claims seeking
damages,” because the doctrine “establishes an even ‘[m]ore embracive’
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prudential rule that federal courts should refrain from hearing ‘claims
for relief that risk disrupting state tax administration.’” Fredrickson v.
Starbucks Corp., 840 F.3d 1119, 1124 (9th Cir. 2016) (reversing district
court’s judgment and remanding case to state court because the “comity
doctrine bar[red] the district court from awarding statutory damages on
the state-tax component of the plaintiffs’ claims”).
Finally, Defendants argue that Levin and the comity doctrine apply
only to federally filed taxpayer claims challenging the state taxing
programs, and not to enforcement actions initiated by taxing authorities.
(Dkt. 39 at 14.)
But “Levin did not hold that comity principles are
inapplicable to enforcement actions.” City of Fishers, 2020 WL 6778426
at *5 (citing Levin, 560 U.S. at 432 (noting that under this prudential
doctrine, the taxing authorities can select their forum)). On the contrary,
“[r]egardless of who brought the underlying suit, the district court’s
resolution of the merits issues [here] will risk or result in federal court
interference with the fiscal affairs of local government—the principal
concern of Levin.” City of Fishers, 2021 WL 3073368, at * 4. The Court’s
involvement will almost certainly impact Plaintiffs’ ability to raise
revenue, either by permitting or excluding the fees at issue.
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Defendants’ efforts to distinguish Plaintiffs’ cited cases on their
individual facts is unavailing. The fact that Homewood Village, LLC v.
Unified Government of Athens-Clarke County, for example, involved
dismissal of “a direct challenge by property owners to enforcement of
certain government charges, not a removed action where governments
sought to collect fees,” does not impact this Court’s analysis under Levin.
(Dkt. 39 at 16 (citing Homewood Village, 3:15-CV-23, 2016 WL 1306554,
at *1 (M.D. Ga. Apr. 1, 2016).) The key point of Homewood Village is that
“[a]lthough comity concerns frequently arise in challenges to local taxes,
they can also apply to challenges to local fees.” 2016 WL 1306554, at *1
(dismissing case about stormwater fees assessed by local ordinance based
on the comity doctrine notwithstanding the fact that the fee was not a
“tax” under the Tax Injunction Act); see also City of Fishers, 2021 WL
3073368, at * 4 (“the franchise fee imposed under the Act, much like a
tax, yields revenue for municipalities in Indiana” and thus “can be
understood as a tax for Levin purposes”). And, as discussed above, a court
that has the power to dismiss under the comity doctrine also has the
power to remand. See Carnegie-Mellon, 484 U.S. at 343; McDermott Int’l,
Inc. v. Lloyds Underwriters, 944 F.2d 1199, 1203 (5th Cir. 1991) (noting
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that Carnegie–Mellon “established that remand is appropriate when a
district court has discretion to dismiss a case”).
The Court is not unsympathetic to Defendants’ position here. The
comity doctrine may have been around (in one form or another) for more
than a century. But it is “seldom invoked,” most authorities “devote little
attention” to it, and the Supreme Court is often “unclear about just how
expansive the doctrine is, and in precisely what kinds of tax cases it is
most pressing.” City of Fishers, 2021 WL 3073368, at * 3; Normand v.
Cox Commc’ns, LLC, 848 F. Supp. 2d 619, 623 (E.D. La. 2012). There are
also factual differences between this case and the paradigmatic comity
cases such as Levin: this case was brought by municipalities rather than
taxpayers (or even states); it involves franchise fees rather than ordinary
taxes; it seeks to collect money that the state and its municipalities have
not historically collected or relied on; it does not (currently) involve
constitutional claims requiring complex, discretionary remedies; and it
implicates a federal jurisdictional statute (CAFA) that itself reflects some
sort of balance between federal and local interests.
Perhaps these
differences take our case outside the core comity cases and into a greyer
area. But, on balance and in the absence of contrary authority from the
22
Case 1:21-cv-00021-MLB Document 50 Filed 08/05/21 Page 23 of 23
Eleventh Circuit, the Court concludes we are still in comity-doctrine
territory here. So Plaintiffs’ motion to remand is granted.
IV.
Conclusion
For the reasons discussed above, Defendants’ Motion to Stay (Dkt.
42) is DENIED AS MOOT and Plaintiffs’ Motion to Remand (Dkt. 11) is
GRANTED.
The case is REMANDED to the Superior Court of
Gwinnett County, Georgia.
SO ORDERED this 5th day of August, 2021.
23
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