FARNETH v. WALMART STORES, INC.

Filing 28

OPINION. Signed by Judge Mark R. Hornak on 12/30/13. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRIAN FARNETH, on behalf of himself
and all others similarly situated,

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Plaintiff,

v.

2:13-cv-01062
Judge Mark R. Hornak

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WAL-MART STORES, INC., t/d/b/a WalMart,
Defendant.

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OPINION
Mark R. Hornak, United States District Judge

Brian Fameth (HMr. Farneth") brings this action to recover Pennsylvania state sales tax
("Sales Tax") that he paid to Defendant Wal-Mart Stores, Inc. ("Wal-Mart").

Mr. Farneth

alleges that when he used a "buy one, get one" ("BOGO") coupon to get a discount on two (2)
cans of Gillette Fusion shaving gel, Wal-Mart improperly charged him excess Sales Tax of
twenty-one cents l on the original $2.97 per item purchase price of both items without first
deducting the amount of the BOGO discount. On behalf of himself and a putative class of
persons throughout Pennsylvania whom he alleges are owed refunds of similarly, allegedly
improperly charged Sales Tax amounts by Wal-Mart, Mr. Farneth asserts claims for conversion
and misappropriation (Count I), breach of constructive trust (Count II), unjust enrichment (Count
III), and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
I While this amount is small standing alone, the issues in this case are quite significant to the parties. While Wal­
Mart denies all liability, or the appropriateness of class action treatment, it does contend in support of removal that
the liability claimed in the Complaint exceeds $5,000,000, exclusive of costs and interest. ECF No.1 at,; 23.
Presumably, there are likely few manufacturer's BOGO coupons on big ticket items available in the marketplace, or
specifically Wal-Mart, such as LED televisions, patio furniture, or digital tablets, so this sum would presumably be
accumulated in small increments. If, for instance, the Sales Tax overcharge was on average the $.21 involved here,
this could (depending on the type of monetary relief awarded) work out to 23,809,523 overtaxed transactions in
Pennsylvania within the limitations period.

("UTPCPL") (Count IV), 73 Pa. Cons. Stat. §§ 201-1, et seq.2 Mr. Farneth requests declaratory
and injunctive relief, as well as monetary damages.
Pending before the Court are two motions - Wal-Mart's Motion to Stay the case pursuant
to Pennsylvania law's primary jurisdiction doctrine, ECF No. 11, and Mr. Farneth's Motion to
Remand the case to state court, ECF No. 16. After careful consideration of the parties' moving,
opposition, and reply papers, and after oral argument on the Motions, for the reasons that follow,
the Court denies Wal-Mart's Motion to Stay and grants Mr. Fameth's Motion to Remand, based
on principles of comity.
I.

BACKGROUND AND FACTS

On June 8, 2013, Mr. Farneth purchased two (2) cans of shaving gel at a Wal-Mart store
in the Aspinwall neighborhood of Pittsburgh, Pennsylvania. Complaint ("CP"), at, 4. Each can
of shaving gel cost $2.97. [d. at

~

8. At the time of purchase, Mr. Fameth presented the Wal-

Mart cashier with a BOGO coupon. [d. at

~

4. The Wal-Mart cashier accepted the coupon and

charged Mr. Farneth a total of$2.97 for the two cans of shaving gel. [d. at ~~ 4, 6,8. However,
according to his receipt, Wal-Mart charged Mr. Fameth Sales Tax of $0.42 on the sale, computed
by multiplying the applicable 7 percent Sales Tax by the original sale price of the two cans of
shaving gel of$5.94. Jd. at ''Ii 7-8.
The applicable Pennsylvania Department of Revenue Regulation ("Regulation")
provides:
Amounts representing on-the-spot cash discounts, employee discounts, volume
discounts, store discounts such as "buy one, get one free," wholesaler's or trade
discounts, rebates and store or manufacturer's coupons shall establish a new
Plaintiff contends that Wal-Mart enriches itself by pocketing the excess "collection commission" it is entitled to
receive under the Pennsylvania Tax Code. Apparently, a merchant collecting sales tax may retain as a commission
one percent (1%) of the taxes collected, see 72 Pa. Cons. Stat. § 7227, or to the Plaintiffs point, 1% of what Plaintiff
alleges are excess Sales Tax collections. Hence, the asserted economic motive for the alleged Sales Tax
overcharges. ECFNo. 1-1 at~ 15.

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purchase price if both the item and the coupon are described on the invoice or
cash register tape.
61 Pa. Code § 33.2(b)(2) (2013). Mr. Farneth contends that because his receipt described the
items he purchased along with the coupon that applied to his purchase, that Pennsylvania tax
Regulation required Wal-Mart to deduct the amount of the coupon from the taxable portion of
the purchase price before assessing Sales Tax. CP 4J4J 12-13. Therefore, according to Mr.
Farneth, Wal-Mart should have charged him Sales Tax on $2.97 instead of$5.94. ld. at 4J4J 8-13.
As the basis for his putative class action suit, he further alleges that as a common practice, WalMart overcharges Sales Tax in this same fashion to customers who present similar BOGO
discount coupons. ld. at 4J4J 13-14.
Wal-Mart, on the other hand, contends that a 2005 staff opinion letter from the
Pennsylvania Department of Revenue's Office of Chief Counsel in essence blessed the process
Wal-Mart used to charge Sales Tax on the involved shaving gel by advising Wal-Mart that it
may not, when using its then-current point-of-sale technology, deduct the value of a
manufacturer's coupon before calculating sales tax. ECF No. 11 at 4J4J 5-6. The parties dispute
the current validity and applicability of that staff opinion letter.
Mr. Farneth originally brought this putative class action in the Allegheny County Court
of Common Pleas. ECF No.1 at 1. Wal-Mart timely removed the case to this Court on the basis
of diversity pursuant to 28 U.S.c. § 1332, as amended by the Class Action Fairness Act of 2005
("CAFA"), and as authorized by 28 U.S.C. § 1453. Wal-Mart then filed a Motion to Stay the
case pursuant to Pennsylvania's primary jurisdiction doctrine, ECF No. 11, and a Brief in
Support of its Motion.

ECF No. 12.

Mr. Farneth filed a Response in Opposition with an

Alternative Motion to Remand the case to state court, ECF No. 16, along with a Brief in
Opposition to Wal-Mart's Motion to Stay and in Support of its Alternative Motion to Remand.
3

ECF No. 17. Wal-Mart next tiled a Reply Brief as to its Motion to Stay, ECF No. 19, and a
Response in Opposition to Mr. Farneth's Motion to Remand, ECF No. 20. Mr. Fameth tiled a
Sur-Reply Brief as to Wal-Mart's Motion to Stay. ECF No. 24. Finally, at the Court's request,
after oral argument on the Motions, both parties filed Supplemental Briefs further explaining
their positions on their respective motions. 3 ECF Nos. 26 and 27.

II.

DISCUSSION
Statutes conferring federal jurisdiction, such as CAF A, "should be read with sensitivity to

'federal-state relations' and 'wise judicial administration.'"

Levin v. Commerce Energy, Inc.,

560 U.S. 413, 423 (2010) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)).
The Tax Injunction Act ("TIA") and its attendant principles of comity counsel such sensitivity by
this Court in deciding whether exercising federal jurisdiction over the case is appropriate.
Pursuant to the TIA, "[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 efficient remedy may be
had in the courts of such State." 28 U.S.c. § 1341.4
Additionally, the "more embracive" doctrine of comity applicable to state taxation cases
"restrains federal courts from entertaining claims for relief that risk disrupting state tax
The Court invited the parties to address in supplemental briefing whether this Court's jurisdiction over the case
was limited by the Tax Injunction Act, various flavors of the abstention doctrine, or any other prudential limitations
on this Court's exercise of federal jurisdiction. The parties primarily devoted their papers to a reiteration of their
prior arguments, albeit with enhanced vigor.
3

The Plaintiff specifically seeks injunctive relief at Count V of his Complaint, which is entitled "Injunction," asking
this Court to enjoin any further collection of Sales Tax by Wal-Mart done without the consideration of Department
of Revenue Regulation 33.2 as Plaintiff construes it, and from remitting certain already-collected Pennsylvania Sales
Tax monies to the Department of Revenue. It also asks this Court to order Wal-Mart to file amended Sales and Use
Tax returns with the Department of Revenue, and to seek from that Department a refund of previously remitted
Sales Tax to be used to make refunds to the putative class. From where the Court sits, this relief would place this
Court at the heart of the Sales Tax assessment and collection process, and specifically asks this Court to enjoin the
collection of Sales Tax. See Hibbs v. Winn, 542 U.S. 88, 104-06, 108 (2004). Thus, notwithstanding the absence of
the Commonwealth as a party, at least part of the case seeks to enjoin or otherwise hinder the "assessment, levy or
collection of a state tax." Bel/South Telecomms., Inc. v. Farris, 542 F.3d 499, 50 I (6th Cir. 2008). These claims for
equitable relief are in the Court's estimation inherently intertwined with those for damages, and are not simply
requests for relief ancillary to a recovery of money. Sipe v. Amerada Hess Corp., 689 F.2d 396, 404 (3d Cir. 1982).

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administration." Levin, 560 U.S. at 417 (2010) (citing Fair Assessment in Real Estate Ass 'n, Inc.
v. McNary, 454 U.S. 100, 102 (1981)). In Great Lakes Dredge & Dock Co. v. Huffman, the
Supreme Court illustrated the rationale behind the comity doctrine:
Interference with state internal economy and administration is inseparable from
assaults in the federal courts on the validity of state taxation, and necessarily
attends injunctions, interlocutory or final, restraining collection of state taxes.
These are the considerations of moment which have persuaded federal courts of
equity to deny relief to the taxpayer - especially where the state, acting within its
constitutional authority, has set up its own adequate procedure for securing to the
taxpayer the recovery of an illegally exacted tax.
319 U.S. 293, 298 (1943).5
In Levin, the Supreme Court held that principles of comity demanded deference to the
state court system where plaintiffs brought Commerce Clause and Equal Protection claims
against the state of Ohio, alleging that certain tax exemptions enjoyed by local natural gas
distribution companies under the Ohio Revenue Code were discriminatory. 560 U.S. at 418-19,
432. The Court pointed to a "confluence of factors" that led to its conclusion. First, plaintiffs
sought federal court review of "commercial matters over which Ohio enjoys wide regulatory
latitude." ld. at 431.

That is certainly the case here.

Second, their suit did not involve a

fundamental federal right or classification warranting heightened judicial scrutiny. ld. This
allowed the Court to maintain its "proper reluctance to interfere by prevention with the fiscal
operations of the state governments .. .in all cases where the [f]ederal rights of the persons could
otherwise be preserved unimpaired." ld. at 422 (quoting Boise Artesian Hot & Cold Water Co.
v. Boise City, 213 U.S. 276, 282 (1909)). That is also the case here. Third, the Court decided
that Ohio state courts were "better positioned than their federal counterparts to correct any
violation because they are more familiar with state legislative preferences and because the TIA

Since its decision in Great Lakes, the Supreme Court has extended the comity doctrine's reach to actions for
damages on the same reasoning. See McNary, 454 U.S. at 107-117.

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does not constrain their remedial options." Id. at 431-32. In this Court's judgment, that, too, is
the case here.
A similar confluence of factors leads the Court to conclude that on the basis of comity
considerations, this case should be remanded to state court. Mr. Farneth is asking the Court to
consider and then apply part of the Pennsylvania Department of Revenue's regulatory Sales Tax
scheme

a mechanism by which the state of Pennsylvania collects Sales Tax revenue

over

which the state enjoys wide regulatory latitude. Wal-Mart is correct in arguing that Mr. Fameth
is not questioning the validity of the state Regulation itself, but is instead alleging that it (WalMart) violated the Regulation by improperly charging, collecting, and remitting Sales Tax on the
full purchase price before deducting the applicable BOGO discount. 6 However, for the Court to
determine whether Wal-Mart did, or did not, violate 61 Pa. Code § 33.2(b)(2) in regard to
collecting Sales Tax on the involved gel, it would have to discern and then apply the proper
method of Sales Tax collection authorized by that Regulation.

Mr. Fameth anticipated this

problem when he included citations to Pennsylvania Department of Revenue guidance on that

In this regard, this case is not In re Wal-Mart Stores, Inc., 2009 WL 7823752 (7th Cir. Nov. 12,2009). Here, the
issue relates to the precise amount of Sales Tax due under the Regulations on the purchase of two (2) cans of
shaving gel using a BOGO coupon. In that case, no sales tax was ultimately due at all, since the purchased goods
were returned in toto, albeit to a different store in a different locale with a different sales tax rate. 2009 WL
7823752 at * 1. Given that Mr. Farneth apparently kept the shaving gel, the question here is "how much tax was
due?" In In re Wal-Mart, the only issue was the scope ofWal-Mart's refund duty in a situation in which no sales tax
was due at all. Id. The Seventh Circuit did not address the comity doctrine, and held that the TIA was not
implicated when the dispute was over whether Wal-Mart had to make its full refund calculation based on the rate of
tax where the sale was made, or the rate of tax in force where the goods were returned. /d. at * 1-2.
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Regulation in his Complaint. 7 Wal-Mart also foresaw this concern. In its Brief in support of its
Motion to Stay, it cited to a letter from the Pennsylvania Department of Revenue advising WalMart on the proper method of collecting Sales Tax when presented with BOGO coupons. 8
The one thing the parties seem to agree on is that when ruling on the proper method of
Sales Tax collection under the applicable Regulation in these shaving gel-driven, BOGO-centric
circumstances, the Court would undoubtedly have to construe the language of the Regulation,
interpret Pennsylvania Department of Revenue guidance, determine what weight to give to a
2005 Department of Revenue Sales Tax staff opinion letter, and ultimately apply its analysis as a
federal court to a state tax collection regulation and regime. Essentially, "[t]o rule on the merits
of this case, the court would have to make, albeit indirectly, a ruling as to the legitimacy of the
revenue collection practices of a state entity." Trading Co. of N Am., Inc. v. Bristol Tp. Auth.,
47 F. Supp. 2d 563, 569 (E.D. Pa. 1999). Such interference with state tax administration was
recognized by the Supreme Court in Great Lakes to be "inseparable from assaults in federal
court on the validity of state taxation." 319 U.S. at 298.

7 As support for its argument that Wal-Mart improperly computed the sales tax on his purchase, Mr. Farneth's
Complaint quotes an article from the Pennsylvania Department of Revenue's FebruarylMarch 2005 Tax Update,
which reads in relevant part:

The Regulations require a retailer to deduct the coupon amount from the taxable portion of the
purchase price, if the cash register receipt describes both the item purchased and the coupon that
applies to it. The description requirement ensures that a coupon relating to a nontaxable item will
not reduce the taxable purchase price. It also protects the retailer by showing why the taxable
price was reduced.
The Department interprets the requirement of a description to mean that the cash register receipt
makes a clear reference to the item and the coupon related to it or a clear reference that there is an
amount deducted on any purchase or a percentage discount on all items listed whether taxable or
not.
CP,at,II;seealsoECFNo.12-1.

Wal-Mart provided and relies upon an August 11,2005 Letter from Jeffrey S. Snavely, Deputy Chief Counsel,
Pennsylvania Department of Revenue, to John T. Dalton, Senior Tax Manager-Compliance, Wal-Mart. ECF Nos.
12, at 5-6, and 12-3. Plaintiff and Wal-Mart are precisely at odds as to what they assert the Regulation obligated
Wal-Mart to do as to this purchase.

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7

The case at hand involves no federally-protected fundamental right or classification for
the benefit of either party that invites heightened judicial scrutiny, but is instead a quarrel
focusing on how Sales Tax is to be collected and remitted under state law in BOGO coupon
situations. Mr. Farneth brought suit for state-law claims of conversion and misappropriation,
breach of constructive trust, unjust enrichment, and unfair trade practices under the UTPCPL.
None of these causes of action contemplates the assertion of a federal right, or a defense based
on federal law, and certainly none that could not be addressed in state court, Levin, 560 U.S. at
429. Pennsylvania courts are simply better positioned than this Court to ascertain and then
correct any violation of state tax collection laws9

-

they are presumably more familiar with the

administration of Pennsylvania tax Regulations and are wholly unburdened by the TIA's
limitations in fashioning proper and complete remedies.

Id. at 428.

Taken together, these

considerations counsel deference to the state adjudicative processes. Id. at 432. 10
The Court's conclusion is reinforced by the Third Circuit's decision in Sipe v. Amerada

Hess Corp., 689 F.2d 396 (3d Cir. 1982). There, seamen challenged their employer's practice of
withholding of a portion of their wages under New Jersey's unemployment compensation and
temporary disability benefits tax laws. Sipe, 689 F.2d at 398. The plaintiffs asserted that this
practice violated federal law, and, as is the case here, sought injunctive relief, a refund of the
money withheld, and other monetary damages. Id. The court held that, applying either the Tax
972 Pa. Cons. Stat. § 7202(a) authorizes vendors to collect Sales Tax from the purchaser and then remit the tax to
the Commonwealth. In the interim between collection and remittance, pursuant to 72 Pa. Cons. Stat. § 7225, the
vendor holds the collected tax in trust for the Commonwealth, and such Sales Tax is the property of the
Commonwealth of Pennsylvania. Therefore, to grant the Plaintiff at least some of the reliefhe requests against Wal­
Mart, the Court would effectively have to issue an injunction against collection of Sales Tax by an agent and trustee
of the Commonwealth, and against remittance of that Sales Tax to the Commonwealth, actions that the doctrine of
comity counsels against, and ones whose propriety should be decided by the courts of Pennsylvania.
10 Wal-Mart contends that Plaintiffs sole remedy is to file an administrative claim with the Pennsylvania
Department of Revenue for a refund of the excess Sales Tax he allegedly paid. ECF No. 12 at 9-11. Wal-Mart's
papers are silent as to (a) whether an administrative adjudication as to such a refund would serve to bar
administrative re-litigation of such a claim for perhaps 20,000,000 other purchases or (b) what happens in this Court
after such an administrative determination has occurred.

8

Injunction Act or related principles of comity, the district court lacked jurisdiction to hear the
case. !d. at 404, 408. As in Sipe, this Court cannot retain jurisdiction over a case that would
require it to determine the proper interpretation of the applicable state tax Regulation before
ruling on the merits, and it is, of course, axiomatic that challenges to the methods and procedures
of state tax collection may do "no less damage" to a state tax system than would a head-on attack
on the legitimacy of an assessment. Trading Co., 47 F. Supp. 2d at 571.
Wal-Mart argues that Sipe does not compel the Court to decline jurisdiction over this case
under the comity doctrine because there, the state of New Jersey was a named defendant and was
enjoined from future withholding along with plaintiffs' employer, id. at 404, whereas here, the
Commonwealth of Pennsylvania is not a party, and Mr. Fameth is not seeking any relief directly
from the state.

However, even if Sipe may not compel remand, that does not diminish its

relevance to this Court's analysis. Further, that Pennsylvania has not been joined to this action
does not mean that it will not later be joined as an interested party, or even an indispensable one.
The original complaint in Sipe did not name New Jersey as a defendant; the state was named
later in an amended complaint and was joined as a third party defendant in two other
consolidated actions. Id.
At oral argument, the Plaintiff conceded that because the central issue in this case is the
proper interpretation of a Pennsylvania Department of Revenue Regulation, the Commonwealth
may well be an indispensable party to this action. The foundation of its Motion to Remand is
that either under 28 U.S.C. § 1332(d)(5)(A)11 or Fed. R. Civ. P. 19(b)12, the case should be

11 28 U.S.C. § 1332(d)(5) provides, in relevant part: "Paragraphs (2) through (4) [of § 1332] (granting CAFA
jurisdiction to federal courts) shall not apply to any class action in which - (A) the primary defendants are States,
State Officials, or other governmental entities against whom the District Court may be foreclosed from ordering
relief."

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remanded to state court if the Court determines that the Commonwealth must be joined as a
party. Wal-Mart similarly indicates that the Commonwealth is at least a highly interested party
to this action by arguing in its brief that the Pennsylvania Legislature committed resolution of
this issue to the Department of Revenue, and that the case should be stayed pending the
Department's administrative decision as to the proper interpretation of the relevant revenue
Regulation, applying the state law version of the "primary jurisdiction" doctrine. The Court
agrees that Pennsylvania has an undeniable interest in the interpretation and application of its
own Sales Tax Regulation (whether it is joined as a party or not), and this is yet another reason
that considerations of comity prudentially divest the Court ofjurisdiction to hear the case.
Before a federal court may remand a case to state court based on comity principles, state
law must provide a plain, adequate, and complete remedy. McNary, 454 U.S. at 116. This
language is not significantly different in meaning from the Tax Injunction Act's requirement of a
"plain, speedy, and efficient" state remedy. Id. at 116 n. 8 (citing Great Lakes, 319 U.S. at 297­

99, Tully v. Griffin, Inc., 429 U.S. 68, 73-74 (1976), Hillsborough v. Cromwell, 326 U.S. 620,
622-23 (1946), Matthews v. Rodgers, 284 U.S. 521, 525-26 (1932)). "Both phrases refer to the
obvious precept that plaintiffs seeking protection of federal rights in federal courts should be
remitted to their state remedies if their federal rights will not thereby be 10st.,,)3 Id.
Mr. Farneth is not seeking relief implicating any federal right that would be lost if the
case were remanded to state court. Additionally, both parties have pointed to state remedies that
they believe would be adequate and complete, and each relies on competing interpretations of

12 Fed. R. Civ. P. J9(b) governs situations where an indispensable party to the action cannot feasibly be joined. The
options for the court in such a situation are to proceed with the action among the existing parties or to dismiss the
case. Fed. R. Civ. P. J9(b).

13

In this case, neither party is relying on a substantive federal right as either a sword or a shield.

10

Sales Tax regulations. Wal-Mart argues vigorously for the preeminence of a state law resolution
of these issues, and Wal-Mart's argument for deference to a state administrative process under
the primary jurisdiction doctrine is a strong indication that federal court deference under comity
principles is appropriate.

Mr. Fameth initially filed this action in state court, where he

undoubtedly believed that he could obtain a sufficient remedy on his asserted causes of action.
He has also filed a motion to remand the case to state court in the event that this Court
determines that the Pennsylvania Department of Revenue is an indispensable party and cannot be
joined in federal court. Thus, Mr. Fameth plainly believes that Pennsylvania's adjudicative
processes would afford him a full and adequate remedy.
The entire basis of Wal-Mart's Motion to Stay is the argument that with its statutory
Sales Tax scheme, Pennsylvania has committed issues related to the proper manner of collecting
Sales Tax primarily to the Pennsylvania Department of Revenue, and therefore, under
Pennsylvania's primary jurisdiction doctrine, the Department of Revenue should administratively
determine whether Wal-Mart properly collected Sales Tax on Mr. Fameth's purchase. 14 If the
Court remanded this case, that option would not be foreclosed to the state court l5 , and that court
would be well-equipped to determine whether under Pennsylvania law, the primary jurisdiction
doctrine mandated a stay of its state judicial proceedings. See StolofJ v. Neiman-Marcus Group,
Inc., 24 A.3d 366 (Pa. Super. 2011). By the central tenet of its Motion, Wal-Mart necessarily

14 This argument itself supports the conclusion that any action by this Court creates a risk of a federal disruption of
state tax administration. Levin, 560 U.S. at 417.

In this regard, the Court parts company with the court in Johnson v. Famous Dave's ofAmerica inc., 2012 WL
1646875 (E.D. Pa. May 10,2012), which retained federal jurisdiction while staying its hand as the state tax issues
were considered in the first instance by the Department of Revenue. From this Court's perspective, in this situation
the doctrine of "primary jurisdiction" is a statement of allocation of decisional authority within the state system, and
is therefore far better applied (if at all) within that system. This is especially the case here, in which the Complaint
facially seeks the very form of equitable relief barred by the TIA.
15

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demonstrates that it believes that Pennsylvania law and proceedings supply an adequate (and
most appropriate) remedy available for the adjudication of the relevant claims and defenses.
Since Pennsylvania, acting within its constitutional authority, has set up its own adequate
procedures for securing to taxpayers the recovery of illegally exacted taxes, this is precisely the
kind of state tax case the Supreme Court in Great Lakes contemplated should be remanded on
comity grounds. 16

And because plain, adequate, and complete state remedies Gudicial or

administrative) that would not interfere with any asserted federal right do exist at the state level,
the Court concludes that the comity doctrine strongly counsels remand of the Plaintiff s SUit. 17

III.

CONCLUSION
For the reasons stated, Wal-Mart's Motion to Stay is denied without prejudice, and the

Plaintiffs Motion to Remand is granted on comity grounds. An appropriate order will follow.

Mark R. Hornak
United States District Judge

Dated: December 30, 2013
cc: All counsel of record

16 Whether the comity doctrine applies when a case has been removed to federal court under CAF A was recently
addressed by the Eastern District of Missouri in City ofMaryland Heights v. Tracfone Wireless, Inc., 2013 WL
791866 (E.D. Mo. Mar. 4, 2013), where the court remanded a putative class action removed to federal court under
CAF A on comity grounds, pursuant to the authority of the Supreme Court's opinion in Levin. Given this
disposition, the Court need not resolve whether the Commonwealth is an "indispensable party" to be joined under
Fed. R. Civ. P. 19(b), or whether remand is compelled by virtue of28 U.S.c. § 1332(d)(5)(A).

17 Given the Court's disposition on comity grounds, the Court is not required to conclusively determine whether the
TIA would, standing alone, be a jurisdictional bar, Levin, 560 U.S. at 432 (citing Great Lakes, 319 U.S. at 299, 30 I),
although, as noted at note 9, supra, Plaintiff has sought injunctive relief aimed directly at stopping the collection and
remittance of Sales Tax by the Defendant acting as the state's agent/trustee, a central concern of the TIA.

12