Nemetz v. Sanbornton, Town of

Filing 10

ORDER granting 6 plaintiff's motion to sever and remand; and denying as moot 7 plaintiff's motion to remand and decline jurisdiction. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David Nemetz,
Plaintiff
v.

Case No. 13-cv-10-SM
Opinion No. 2013 DNH 034

Town of Sanbornton,
Defendant
O R D E R
Plaintiff’s motion to remand, doc. no. 6, is granted, but on
different grounds than those urged in the motion.

Plaintiff’s

“Motion to Remand and Decline Jurisdiction as Forum Non
Conveniens,” doc. no. 7, is denied as moot.

Plaintiff filed his “Verified Petition to Cancel Tax Deed
and Set Aside Tax Lien with Prayers for Injunctive Relief and
Damages” against the Town of Sanbornton in New Hampshire Superior
Court.

The Town removed the case, invoking federal question

jurisdiction.

Plaintiff moves for remand.

Plaintiff brings two federal and two state law claims,
alleging, among other things, that the Town deprived him of due
process when it levied tax assessments and executed and recorded
a tax deed against his property, and when it later evicted him.
He requests injunctive and declaratory relief, as well as

monetary damages.

The injunction he seeks would prohibit the

Town from “taking further action with respect to [his] property
. . . [and from] interfering with [his] complete and unfettered
access to his property.”

Normally this court would have subject matter jurisdiction
over plaintiff’s federal law claims, and supplemental
jurisdiction over his state law claims.

The Tax Injunction Act,

28 U.S.C. § 1341, however, bars plaintiff’s request for
injunctive relief:
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.
Id.

Plaintiff, quite clearly, seeks court orders “enjoin[ing],
suspend[ing] or restrain[ing] the assessment, levy or collection
of [a] tax.”

Because New Hampshire provides “plain, speedy, and

efficient” remedies for violations of federal rights arising from
the levying and collection of state taxes, see Chasan v. Village
Dist. of Eastman, 572 F. Supp. 578, 583 (D.N.H. 1983) (aff’d
without opinion, 745 F.2d 43 (1st Cir. 1984)), the court is
without subject matter jurisdiction over plaintiff’s federal
claims.

See, 28 U.S.C. § 1341; Rosewell v. LaSalle Nat’l Bank,

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450 U.S. 503, 528 (1981) (holding Tax Injunction Act applicable
to suit seeking an injunction to prevent county treasurer from
selling plaintiff’s property to satisfy unpaid property taxes).
See also Smith v. Ayotte, 356 F. Supp. 2d 9, 12 (D.N.H. 2005)
(DiClerico, J.) (“‘It is well settled that allegations of
deprivations of constitutional rights do not render the [Tax
Injunction] Act inapplicable.’”) (quoting Schneider Transport,
Inc. v. Cattanach, 657 F.2d 128, 131 (7th Cir. 1981)).

To the extent plaintiff seeks declaratory relief and
monetary damages, his federal claims are barred by the principle
of comity — “a principle embodied in, but not limited to, the
[Tax Injunction] Act.”

Tomaiolo v. Mallinoff, 281 F.3d 1, 6-7

(1st Cir. 2002) (affirming, under comity principles, dismissal of
“Section 1983 action for damages suffered in the allegedly
unlawful administration of a state tax system”) (relying on Fair
Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 116
(1981)).

See also Coors Brewing Co. v. Mendez-Torres, 678 F.3d

15, 30 (1st Cir. 2012) (affirming dismissal on comity grounds of
declaratory action seeking invalidation of Puerto Rico beer tax).

Because the federal claims as pled in this case must be
remanded, the court cannot exercise supplemental jurisdiction
over the state law claims.

See 28 U.S.C. § 1367(a).

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The case,

therefore, is remanded in its entirety to the New Hampshire
Superior Court (Belknap County).

See 28 U.S.C. § 1447(c) (“If at

any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded.”).

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
March 14, 2013
cc:

Charles A. Russell, Esq.
Donald L. Smith, Esq.

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