ROWAN COUNTY v. FEDERAL NATIONAL MORTGAGE ASSOCIATION et al
Filing
55
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR., on 9/16/2013; that Defendants' Motion to Dismiss the Plaintiffs' Consolidated Amended Complaint (Doc. 33 ) is GRANTED as to the first claim for relief. I T IS DECLARED that 12 U.S.C. § 1723a(c)(2) and 12 U.S.C. § 1452(e) exempt the Enterprise Defendants from payment of the excise tax imposed by N.C. Gen. Stat. §§ 105-228.28 et seq. FURTHER, that Plaintiff's Unopposed Second Motion for Class Certification and for Approval of the Parties' Plan of Class Notification (Doc. 23 ) is DENIED as MOOT. A judgment will be filed contemporaneously herewith. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROWAN COUNTY, NORTH CAROLINA,
HENDERSON COUNTY, NORTH
CAROLINA, BEAUFORT COUNTY,
NORTH CAROLINA, GUILFORD
COUNTY, NORTH CAROLINA, and
STANLY COUNTY, NORTH CAROLINA,
on their own behalf and on
behalf of all counties
similarly situated,
Plaintiffs,
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, FEDERAL HOME
LOAN MORTGAGE CORPORATION,
and FEDERAL HOUSING FINANCE
AGENCY, as conservator for
FEDERAL NATIONAL MORTGAGE
ASSOCIATION and FEDERAL HOME
LOAN MORTGAGE CORPORATION,
Defendants.
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1:12CV859
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is Defendants‟ Motion to
Dismiss the Plaintiffs‟ Consolidated Amended Complaint (Doc.
33).
Defendants have filed a memorandum in support of their
motion (Doc. 34), Plaintiffs have filed a response in opposition
(Doc. 43), and Defendants have filed their reply (Doc. 45).
Defendants‟ motion is now ripe for adjudication, and for the
reasons that follow, this court will grant the motion as to
claim one.
As to claim two, this court will enter a declaratory
judgment that Defendants Federal National Mortgage Association
and Federal Home Loan Mortgage Corporation are exempt from North
Carolina‟s Transfer Tax.
I.
BACKGROUND
Like many other states, North Carolina levies an excise tax
“on each instrument by which any interest in real property is
conveyed to another person.”
(“Transfer Tax”).
N.C. Gen. Stat. § 105-228.30(a)
The transferor of the property “must pay the
tax to the register of deeds of the county in which the real
estate is located before recording the instrument of
conveyance.”
Id.
This excise tax “applies to every person
conveying an interest in real estate located in North Carolina
other than a governmental unit or an instrumentality of a
governmental unit.”
N.C. Gen. Stat. § 105-228.28.
Certain
transfers of interest in real estate are exempted from the tax,
see N.C. Gen. Stat. § 105-228.29, but none of those exemptions
is relevant in this case.
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Defendants Federal National Mortgage Association (“Fannie
Mae”) and Federal Home Loan Mortgage Corporation (“Freddie Mac,”
together with Fannie Mae, “the Enterprise Defendants”) are
federally chartered private corporations.
Congress chartered
Fannie Mae to “establish secondary market facilities for
residential mortgages,” to “provide stability in the secondary
market for residential mortgages,” and to “promote access to
mortgage credit throughout the Nation.”
12 U.S.C. § 1716.
Freddie Mac has substantially the same mission.
12 U.S.C.
§ 1451 note.
Defendant Federal Housing Finance Agency (“FHFA”) is an
independent federal agency, created under the Housing and
Economic Recovery Act of 2008, Pub. L. No. 110-289, 122 Stat.
2654 (codified at 12 U.S.C. § 4617 et seq.).
On September 6,
2008, the Enterprise Defendants were placed under the
conservatorship of the FHFA.
Pursuant to their statutory charters, the Enterprise
Defendants are exempt from “all [state and local] taxation”
other than real property taxes (“the Charter Exemptions”).
Specifically, Fannie Mae‟s charter provides as follows:
The corporation, including its franchise, capital,
reserves, surplus, mortgages or other security
holdings, and income, shall be exempt from all
taxation now or hereafter imposed by any State,
territory, possession, Commonwealth, or dependency of
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the United States, or by the District of Columbia, or
by any county, municipality, or local taxing
authority, except that any real property of the
corporation shall be subject to State, territorial,
county, municipal, or local taxation to the same
extent as other real property is taxed.
12 U.S.C. § 1723a(c)(2).
Freddie Mac‟s charter includes a
similar tax exemption:
The Corporation, including its franchise, activities,
capital, reserves, surplus, and income, shall be
exempt from all taxation now or hereafter imposed by
any territory, dependency, or possession of the United
States or by any State, county, municipality, or local
taxing authority, except that any real property of the
Corporation shall be subject to State, territorial,
county, municipal, or local taxation to the same
extent according to its value as other real property
is taxed.
12 U.S.C. § 1452(e).
The FHFA‟s charter exemption is
substantially similar to those of the Enterprise Defendants.
See 12 U.S.C. § 4617(j)(2).
Rowan County, Guilford County, Stanly County, Henderson
County, and Beaufort County, North Carolina (“Plaintiff
Counties”) filed a two-claim, putative class action complaint.
In the first claim, Plaintiff Counties seek the payment of real
estate transfer taxes allegedly owed by the Enterprise
Defendants from at least 1972 to the present.
During that
period, the Enterprise Defendants have been transferors in
thousands of real estate transactions in the Plaintiff Counties
and throughout North Carolina.
(Consolidated Amended Complaint
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“Consol. Am. Compl.”) (Doc. 29) ¶ 9.)
Plaintiff Counties allege
that the Enterprise Defendants have improperly claimed
exemptions from the Transfer Tax, including (1) an exemption
based on being “federal instrumentalities” and (2) an exemption
based on their Charter Exemptions.
(Id. ¶ 23.)
In the second
count, Plaintiff Counties seek a declaration that North Carolina
counties are entitled to assess and collect the Transfer Tax
from the Enterprise Defendants.
Jurisdiction is alleged based upon diversity (28 U.S.C.
§ 1332(d)) and the existence of a federal question as to the
interpretation of federal law (28 U.S.C. § 1331).
II.
LEGAL STANDARD
Defendants move to dismiss Plaintiffs‟ Consolidated Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
To survive a Rule 12(b)(6) motion, a plaintiff must allege
“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) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
For a claim to be facially
plausible, a plaintiff must “plead[] factual content that allows
the court to draw the reasonable inference that the defendant is
liable” and must demonstrate “more than a sheer possibility that
a defendant has acted unlawfully.”
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Id. (citing Twombly, 550
U.S. at 556).
When ruling on a Rule 12(b)(6) motion, a court
must accept the complaint‟s factual allegations as true.
Id.
However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions,” and “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”
Id. (citing Twombly, 550 U.S. at 555).
Pursuant to 28 U.S.C. § 2201(a), “any court of the United
States, upon the filing of an appropriate pleading, may declare
the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or
could be sought.”
A motion to dismiss is “seldom an appropriate
pleading in actions for declaratory judgments, and will not be
allowed simply because the plaintiff may not be able to
prevail.”
N.C. Consumers Power, Inc. v. Duke Power Co., 285
N.C. 434, 439, 206 S.E.2d 178, 182 (1974).
Instead, the record
must “clearly show[] that there is no basis for declaratory
relief as when the complaint does not allege an actual, genuine
existing controversy.”
Id.; see also McKinsey & Co. v. Olympia
& York 245 Park Ave. Co., 433 N.Y.S.2d 802, 802 (N.Y. App. Div.
1980) (“In the absence of a holding that a dispute is not ripe
for adjudication, a court should not dismiss the complaint in a
declaratory judgment action, but should declare the parties‟
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rights.”); 22A Am. Jur. 2d. Declaratory Judgments § 232 (2013
supp.).
A court may construe a motion to dismiss a claim for
declaratory relief as a cross-motion for a declaration in the
defendant‟s favor, see, e.g., Diamond v. Chase Bank, Civil
Action No. DKC 11-0907, 2011 WL 3667282, at *5 (D. Md. Aug. 19,
2011), and this court will do so in this case.1
III. ANALYSIS
Defendants move to dismiss the Consolidated Amended
Complaint, contending that, as a result of the Charter
Exemptions, they are statutorily exempt from North Carolina‟s
Transfer Tax.
Plaintiff Counties raise four primary arguments
in response: (1) under relevant Supreme Court precedent “all
taxation” is a term of art that does not include excise taxes;
(2) North Carolina‟s Transfer Tax fits within the carve-out for
real estate taxes because the right to transfer real property is
one right in the “bundle of sticks” associated with property
1
This court has considered whether such a declaration would
be barred by the Tax Injunction Act, 28 U.S.C. § 1341, which
provides that “district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any tax under
State law.” For the reasons stated in Fannie Mae v. Hamer, No.
12 C 50230, 2013 WL 591979, at *2-3 (N.D. Ill. Feb. 13, 2013),
this court finds that the Tax Injunction Act does not prevent
this court from construing the Charter Exemptions and declaring
that those federal statutes exempt the Enterprise Defendants
from payment of the excise tax imposed by N.C. Gen. Stat.
§§ 105-228.28 et seq.
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ownership; (3) the canon of constitutional avoidance should be
used to reject Defendants‟ interpretation of the Charter
Exemptions; and (4) if Defendants‟ interpretation is correct,
the Charter Exemptions are unconstitutional as applied to the
Transfer Tax because the Enterprise Defendants are not federal
instrumentalities and the tax is a wholly local activity with
little or no effect on interstate commerce.
For the reasons
that follow, this court finds that the Plaintiff Counties‟ first
claim for relief should be dismissed and that Defendants are
entitled to a declaration that the Enterprise Defendants are not
subject to the Transfer Tax.
(1) The Charter Exemptions and the Real Property Carve-Out
Plaintiff Counties raise two primary arguments with regard
to the proper interpretation of the Charter Exemptions.
First,
Plaintiff Counties contend that “all taxation” is a term of art
that does not literally mean all taxation.
Instead, according
to Plaintiff Counties, it refers only to direct taxes and not to
excise taxes, such as the Transfer Tax.
Second, and in the
alternative, Plaintiff Counties argue that the Transfer Tax
falls within the real property exception to the Charter
Exemptions.
These issues have been thoroughly and persuasively
addressed by a number of federal courts.
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With only one
exception, see Oakland Cnty. v. Fed. Hous. Fin. Agency, 871 F.
Supp. 2d 662 (E.D. Mich. 2012), vacated and remanded, 716 F.3d
935 (6th Cir. 2013), those courts have found that the Enterprise
Defendants are exempt from taxes functionally identical to North
Carolina‟s Transfer Tax.
See, e.g., Cnty. of Oakland v. Fed.
Hous. Fin. Agency, 716 F.3d 935 (6th Cir. 2013); Randolph Cnty.,
Ala. v. Fed. Nat‟l Mortg. Ass‟n, No. 3:12-CV-886-WKW, 2013 WL
3947614 (M.D. Ala. July 31, 2013); City of Providence v. Fed.
Nat‟l Mortg. Ass‟n, ____ F. Supp. 2d ____, 2013 WL 3816429
(D.R.I. July 24, 2013); Milwaukee Cnty. v. Fed. Nat‟l Mortg.
Ass‟n, No. 12-C-0732, 2013 WL 3490899 (E.D. Wis. July 10, 2013);
City of Spokane, Wash. v. Fed. Nat‟l Mortg. Ass‟n, No. CV-130020-LRS, 2013 WL 3288413 (E.D. Wash. June 28, 2013); McNulty v.
Fed. Hous. Fin. Agency, __ F. Supp. 2d __, 2013 WL 3147641 (M.D.
Pa. June 19, 2013); Athens-Clarke Cnty. Unified Gov‟t, ____ F.
Supp. 2d ____, 2013 WL 2102922 (M.D. Ga. May 14, 2013);
Montgomery Cnty., Md. v. Fed. Nat‟l Mortg. Ass‟n, Civil Action
No. DKC 13-0066, 2013 WL 1832370 (D. Md. Apr. 30, 2013);
Hennepin Cnty. v. Fed. Nat‟l Mortg. Ass‟n, ____ F. Supp. 2d
____, 2013 WL 1235589 (D. Minn. Mar. 27, 2013); Delaware Cnty.,
Pa. v. Fed. Hous. Fin. Agency, Civil Action No. 12-4554, 2013 WL
1234221 (E.D. Pa. Mar. 26, 2013); Fannie Mae v. Hamer, No. 12 C
50230, 2013 WL 591979 (N.D. Ill. Feb. 13, 2013); Nicolai v. Fed.
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Hous. Fin. Agency, ____ F. Supp. 2d ____, 2013 WL 899967 (M.D.
Fla. Feb. 12, 2013); Hertel v. Bank of Am. N.A., 897 F. Supp. 2d
579 (W.D. Mich. 2012); Hager v. Fed. Nat‟l Mortg. Ass‟n, 882 F.
Supp. 2d 107 (D.D.C. 2012).
This court finds no reason to
deviate from those opinions.
This court finds County of Oakland v. Federal Housing
Finance Agency, 716 F.3d 935 (6th Cir. 2013), particularly
persuasive and adopts its analysis.
Specifically, the Sixth
Circuit held that the Charter Exemptions “plainly state” that
the Enterprise Defendants “are exempt from „all taxation‟” and
that “the plain language of the statutes should control.”
at 940.
Id.
In accordance with the Sixth Circuit, this court also
finds that (1) Federal Land Bank of St. Paul v. Bismarck Lumber
Co., 314 U.S. 95 (1941), and not United States v. Wells Fargo
Bank, 485 U.S. 351 (1988), is the relevant Supreme Court
precedent; (2) there is a meaningful distinction between
property exemptions and entity exemptions; and (3) real estate
transfer taxes are laid directly on the Enterprise Defendants.
See Cnty. of Oakland, 716 F.3d at 943.
“It defies common sense
to argue that a tax on a transfer is not also a tax on the
entity that has to pay it.”
Hertel, 897 F. Supp. 2d at 584; see
also N.C. Gen. Stat. § 105-228.30(a) (“The transferor must pay
the tax to the register of deeds of the county in which the real
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estate is located before recording the instrument of
conveyance.”).
This court also finds that the carve-out for real estate
taxes in the Charter Exemptions does not apply to the North
Carolina Transfer Tax.
See 12 U.S.C. § 1452(e) (“[A]ny real
property of the Corporation shall be subject to State,
territorial, county, municipal, or local taxation to the same
extent according to its value as other real property is
taxed.”); 12 U.S.C. § 1723a(c)(2) (“[A]ny real property of the
corporation shall be subject to State, territorial, county,
municipal, or local taxation to the same extent as other real
property is taxed.”).
Plaintiff Counties are correct that the
ability to transfer real property is an important property
right.
“Mere possession of th[is] right[], however, does not
trigger the Transfer Tax[], which [is] imposed only when th[is]
right[] [is] exercised.
Put differently, real property is not
taxed by the Transfer Tax[]; the transaction (and by extension,
the participant in the transaction) is.”
Montgomery Cnty., 2013
WL 1832370, at *11; see also Cnty. of Oakland, 716 F.3d at 939
n.6 (“[T]he transfer tax, as a privilege tax, does not fit into
the carve out allowing for taxes on real property.”); McNulty,
2013 WL 3147641, at *7 (“As it is apparent that the statutes‟
exception to the exemption applies to taxes imposed directly on
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the real property itself and not on the transfer of the real
property, this court finds the plaintiff‟s argument that the
transfer tax at hand falls within the carve-out exception
unavailing.”); Vadnais v. Fed. Nat‟l Mortg., Civil No. 12-1598
(DSD/TNL), 2013 WL 1249224, at *3 n.8 (D. Minn. Mar. 27, 2013)
(finding that “the „real property‟ exception contained in the
Exemption Statute does not encompass the Minnesota deed transfer
tax”); Delaware Cnty., 2013 WL 1234221, at *6 (“[T]he Transfer
Tax is a tax on the transaction and not on the real property
itself.”).
This conclusion is further supported by Wells Fargo,
which recognized “the distinction between an excise tax, which
is levied upon the use or transfer of property even though it
might be measured by the property‟s value, and a tax levied upon
the property itself.”
485 U.S. at 355.
(2) Constitutionality of the Charter Exemptions and
Constitutional Avoidance
Plaintiff Counties also raise several constitutional
arguments.
First, they contend that this court should find the
Charter Exemptions unconstitutional as applied to North
Carolina‟s Transfer Tax because the Enterprise Defendants are
not federal instrumentalities and the tax is a wholly local
activity.
Plaintiff Counties contend that “[c]onstitutional and
statutory immunity, while discrete concepts, are coextensive.”
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(Pls.‟ Resp. in Opp‟n to Defs.‟ Mot. to Dismiss (“Pls.‟ Resp.”)
(Doc. 43) at 47.)2
Because, according to Plaintiff Counties, the
Enterprise Defendants are not federal instrumentalities, a
statute exempting them from the Transfer Tax would be
unconstitutional.
They also allude to arguments under the
Commerce Clause and the Tenth Amendment.
Second, Plaintiff
Counties ask this court to apply the canon of constitutional
avoidance and adopt their interpretation of the Charter
Exemptions to avoid these constitutional issues.
Despite Plaintiff Counties‟ argument to the contrary,
constitutional and statutory immunity are not coextensive.
Plaintiff Counties rely on United States v. New Mexico for the
proposition that “tax immunity is appropriate in only one
circumstance: when the levy falls on the United States itself,
or on an agency or instrumentality so closely connected to the
Government that the two cannot realistically be viewed as
separate entities, at least insofar as the activity being taxed
is concerned.”
455 U.S. 720, 735 (1982).
That decision,
however, only addresses constitutional immunity.
The New Mexico
Court recognized that Congress has at least some authority to
2
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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grant statutory tax immunity, as distinct from constitutional
immunity, without running afoul of the Constitution.
See id. at
737 (“If the immunity of federal contractors is to be expanded
beyond its narrow constitutional limits, it is Congress that
must take responsibility for the decision, by so expressly
providing as respects contracts in a particular form, or
contracts under particular programs.”).
Arizona Department of
Revenue v. Blaze Construction Co., another opinion cited by
Plaintiff Counties, also recognizes that Congress may extend tax
immunity to individuals or entities which are not
constitutionally immune.
526 U.S. 32, 36 (1999) (“[A]bsent a
constitutional immunity or congressional exemption, federal law
does not shield [a federal contractor] from [a state‟s]
transaction privilege tax.”).
United States v. City of Detroit,
355 U.S. 466 (1958), further underscores the existence of a
distinction between constitutional and statutory immunity.
In
that case, the Supreme Court acknowledged that its trend had
“been to reject immunizing . . . private parties from
nondiscriminatory state taxes as a matter of constitutional
law.”
Id. at 474.
However, the Court also recognized that its
trend in constitutional immunity cases did not limit Congress‟s
authority to grant statutory immunity.
Id. (“Of course this is
not to say that Congress, acting within the proper scope of its
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power, cannot confer immunity by statute where it does not exist
constitutionally.”).3
Because Congress may confer statutory tax immunity if it
does not otherwise exceed its constitutional authority, it is
irrelevant whether the Enterprise Defendants are federal
instrumentalities.
That inquiry is relevant only to
constitutional immunity, not to statutory immunity.
See, e.g.,
First Agric. Nat‟l Bank v. State Tax Comm‟n, 392 U.S. 339, 341
(1968) (“Because of pertinent congressional legislation in the
banking field, we find it unnecessary to reach the
constitutional question of whether today national banks should
be considered nontaxable as federal instrumentalities.”).
3
The other cases cited by Plaintiff Counties in support of
their argument that constitutional and statutory immunity are
“coextensive” involve interpretations of particular exemptions
and do not require a different result. See Davis v. Mich. Dep‟t
of Treasury, 489 U.S. 803, 813 (1989) (construing the retention
of immunity in 4 U.S.C. § 111 as “coextensive with the
prohibition against discriminatory taxes embodied in the modern
constitutional doctrine of intergovernmental tax immunity”
because of similar language and purpose and the fact that the
statute was “consciously drafted against the background of the
Court‟s tax immunity cases”); United State v. District of
Columbia, 669 F.2d 738, 746-47 (D.C. Cir. 1981) (concluding that
a District of Columbia sales tax exemption was “coextensive with
constitutionally based federal tax immunity” because the
legislative history “display[ed] a clear purpose to pattern the
D.C. sales tax on state sales tax laws and to limit the
District‟s taxing power in the manner that state taxation
authority is limited”). Neither decision addressed whether
statutory immunity must always be coextensive with
constitutional immunity.
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To the extent Plaintiff Counties raise arguments under the
Commerce Clause and the Tenth Amendment, those arguments
collapse into a single inquiry: Are the Charter Exemptions as
applied to state transfer taxes valid exercises of Congress‟s
constitutional power?
See New York v. United States, 505 U.S.
144, 156 (1992) (“If a power is delegated to Congress in the
Constitution, the Tenth Amendment expressly disclaims any
reservation of that power to the States; if a power is an
attribute of state sovereignty reserved by the Tenth Amendment,
it is necessarily a power the Constitution has not conferred on
Congress.”).
Plaintiff Counties suggest that the Commerce
Clause does not provide Congress with such authority; however,
they present little argument other than their contention that
the Transfer Tax is “a wholly local activity with little or no
effect on interstate commerce.”
(Pls.‟ Resp. (Doc. 43) at 19.)
The constitutionality of the Charter Exemptions has already been
thoroughly addressed in Montgomery County, Md. v. Federal
National Mortgage Association, Civil Action No. DKC 13-0066,
2013 WL 1832370, at *11-14 (D. Md. Apr. 30, 2013).
Because this
court agrees with and adopts that analysis and Plaintiff
Counties have not raised any argument not considered in that
decision, this court finds that the Charter Exemptions are
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constitutional as applied to the Transfer Tax and does not
address this issue further.
This court also declines Plaintiff Counties‟ invitation to
apply the canon of constitutional avoidance in interpreting the
Charter Exemptions.
That canon “has no application in the
absence of statutory ambiguity.”
United States v. Oakland
Cannabis Buyers‟ Coop., 532 U.S. 483, 495 (2001); see also Clark
v. Martinez, 543 U.S. 371, 385 (2005) (“The canon of
constitutional avoidance comes into play only when, after the
application of ordinary textual analysis, the statute is found
to be susceptible of more than one construction; and the canon
functions as a means of choosing between them.”).
As addressed
above, the Enterprise Defendants are exempt from the Transfer
Tax under the plain and unambiguous language of the Charter
Exemptions.
(3) Motion for Class Certification
Also pending is Plaintiff‟s Unopposed Second Motion for
Class Certification and for Approval of the Parties‟ Plan of
Class Notification (Doc. 23).
This court‟s determination that
the Consolidated Amended Complaint should be dismissed
effectively moots the issue of class certification.
Accordingly, this court will deny the motion as moot.
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IV.
CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that
Defendants‟ Motion to Dismiss the Plaintiffs‟ Consolidated
Amended Complaint (Doc. 33) is GRANTED as to the first claim for
relief.
IT IS DECLARED that 12 U.S.C. § 1723a(c)(2) and 12 U.S.C. §
1452(e) exempt the Enterprise Defendants from payment of the
excise tax imposed by N.C. Gen. Stat. §§ 105-228.28 et seq.
IT IS FURTHER ORDERED that Plaintiff‟s Unopposed Second
Motion for Class Certification and for Approval of the Parties‟
Plan of Class Notification (Doc. 23) is DENIED as MOOT.
A judgment will be filed contemporaneously herewith.
This the 16th day of September, 2013.
________________________________________
United States District Judge
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