Wright v. Linebarger Goggan Blair & Sampson, LLP

Filing 117

ORDER denying Motion for Interlocutory Appeal and denying Motion for Revision of Interlocutory Order(s).. Signed by Judge Samuel H. Mays, Jr on 3/26/2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

DARRELL L. WRIGHT, SR. AS THE
ADMINISTRATOR OF THE ESTATE OF
LENORA S. WRIGHT, DECEASED, on
behalf of itself and all
similarly situated persons and
entities,

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Plaintiffs,
v.
LINEBARGER GOOGAN BLAIR &
SAMPSON, LLP, a Texas limited
liability partnership,
Defendant.

No.

10-2304

ORDER DENYING DEFENDANT’S MOTION FOR INTERLOCUTORY APPEAL AND
MOTION TO STAY AND DENYING DEFENDANT’S MOTION FOR REVISION OF
INTERLOCUTORY ORDER(S) PURSUANT TO RULE 7.3

Before the Court are Defendant Linebarger Goggan Blair &
Sampson, LLP’s (“Linebarger”) April 21, 2011 Motion to Permit
Interlocutory Appeal and Motion for Stay and its September 16,
2011 Motion for Revision of Interlocutory Order(s) Pursuant to
Local

Rule

7.3.

(See

Def.

Linebarger’s

Mot.

to

Permit

Interlocutory Appeal and Mot. for Stay, ECF No. 39) (“April 21
Motion”); see also Def.’s Mem. of Law in Supp. of Mot. to Permit
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and Mot.
for

Stay,

Revision

of

ECF

No.

39-1)

Interlocutory

(“Def.’s
Order,
1

Mem.”);

ECF

No.

Def.’s
97

Mot.

(“September

for
16

Motion”);

Def.’s Mem. of Law in Supp. of Mot. for Revision of

Interlocutory

Order,

ECF

97-1)

(“Def.’s

Revision of Interlocutory Orders”).)

Mem.

in

Supp.

of

Plaintiffs responded in

opposition to Defendant’s April 21 Motion on May 9, 2011.

(See

Pl.’s Mem. of Law in Opp. To Def.’s Mot. to Permit Interlocutory
Appeal and Mot. for Stay, ECF No. 46) (“Pl.’s Mem.”)

Plaintiffs

responded to Defendant’s September 16 Motion on September 26,
2011.

(See Pl.’s Mem. of Law in Opp. To Def.’s Second Mot. for

Revision of Interlocutory Orders, ECF No. 101) (“Pl.’s Opp. To
Def.’s Second Mot.”).)
Plaintiffs’

Amended

Complaint

alleges

that

Linebarger

caused “thousands of Tennessee persons and entities to pay an
unlawful attorney’s fee in direct violation of the Tennessee
Consumer Protection Act (the “TCPA”), Tenn. Code Ann. § 47-18109(a)(i)-(ii).”

(Amend. Compl. ¶ 1, ECF No. 5.)

On March 22,

2011, the Court entered an Order Granting in Part and Denying in
Part

Defendant’s

Motion

to

Dismiss

and

Denying

Defendant’s

Motion to Stay pending the resolution of a state court action.
(See Order on Motions, ECF No. 37.)

The Court declined to stay

pending the resolution of a similar class action in Tennessee
because “resolution of the State Court Action [would] not solve
the issues and claims in this action, and the actions are not
parallel.”

(Order

on

Motions

20.)

The

Court

declined

to

dismiss Plaintiffs’ claims for conversion and unjust enrichment,
2

but

dismissed

negligence.

claims

for

violation

of

the

TCPA

and

for

(Id. 53.)

Defendant seeks to clarify four questions for interlocutory
appeal: whether (1) the Tax Injunction Act (the “TIA”) bars a
class action lawsuit brought by delinquent taxpayers against the
City

of

Memphis’

tax

collection

law

firm;

(2)

Plaintiffs’

complaint fails to state a claim under Fed. R. Civ. P. 12(b)(6)
by failing to allege that at least one class member complied
with Tennessee’s statutorily mandated state law remedy; (3) Rule
19 of the Fed. R. Civ. P. requires either joinder of the City of
Memphis

as

application

a

party

of

the

or

dismissal

Colorado

of

River

the

lawsuit;

doctrine

and

and

(4)

federal

principles of comity require staying this lawsuit pending the
resolution of a similar state court action.
17,

20.)

For

the

following

reasons,

(Def.’s Mem. 7, 14,
the

Court

DENIES

Defendant’s Motion to Permit Interlocutory Appeal and Motion to
Stay.
In its Motion for Revision under Local Rule 7.3, Defendant
argues that a “change of law” occurred after the filing of its
original Motion for Interlocutory Appeal.
Supp.

of

Revision

of

Interlocutory

Tenn. Civ. R. 7.2(b)(2).)

Orders

(See Def.’s Mem. in
2-3)

(citing

W.D.

Defendant contends that the Seventh

Circuit’s decision in Empress Casino Joliet Corp. v. Balmoral
Racing Club, Inc., No. 09-3975, 2011 U.S. App. LEXIS 13898, at
3

*7-8 (7th Cir. July 8, 2011) [hereinafter Empress Casino], the
Middle District of Alabama’s decision in Washer & Refrigeration
Supply Co., Inc. v. PRA Government Services, LLC, No. 2:09-CV1111-WKW,

2010

U.S.

Dist.

LEXIS

93576,

at

*12-14

(M.D.

Ala.

Sept. 8, 2010) [hereinafter Washer & Refrigeration], and the
Fifth Circuit’s decision in Washington v. Linebarger, Goggan,
Blair, Pena & Sampson, LLP, 338 F.3d 442, 44 (5th Cir. 2003)
[hereinafter Washington], are persuasive authority that the TIA
bars Plaintiffs’ action. (See Def.’s Mem. in Supp. of Revision of
Interlocutory Orders 1-4.)

Defendant does not move to revise

the three additional theories that it raised in its April 21
Motion.

For

the

following

reasons,

Defendant’s

Motion

for

Revision of Interlocutory Order(s) Pursuant to Local Rule 7.3 is
DENIED.
I.

Standard of Review
A.

Interlocutory Appeal

Twenty-eight U.S.C. § 1292(b) provides:
“When a district judge, in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is
substantial ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he
shall so state in writing. The Court of Appeals which
would have jurisdiction of an appeal of such action
may thereupon, in its discretion, permit an appeal to
be taken from such order, if application is made to it
within ten days after the entry of the order:
Provided, however, That application for an appeal
4

hereunder shall not stay proceedings in the district
court unless the district judge or the Court of
Appeals or a judge thereof shall so order.”
Courts consider three factors in deciding whether to grant an
interlocutory

appeal:

whether

(1)

“the

order

involves

a

‘controlling question of law’; (2) there is ‘substantial ground
for

difference

decision;

and

of
(3)

opinion’
[]

an

about

immediate

the

correctness

appeal

would

of

the

‘materially

advance the ultimate termination of the litigation.’”

In re

City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002) (citations
omitted); accord Vitols v. Citizens Banking Co., 984 F.2d 168,
170 (6th Cir. 1993) (per curiam); In re Regions Morgan Keegan
ERISA Litig., 741 F. Supp. 2d 844, 848 (W.D. Tenn. 2010).
Exceptional

circumstances

must

exist

or

irreparable

harm

must seem imminent to justify granting an interlocutory appeal.
Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978); In re
Memphis, 293 F.3d at 350; accord United States v. Bilsky, 664
F.2d 613, 619 (6th Cir. 1981).
.

.

.

only

protracted

be

and

circumstances

used

where

expensive
justify

“An interlocutory ‘appeal should
an

immediate

litigation’”

departing

from

appeal

and

where

the

would

basic

avoid

exceptional
policy

of

postponing appellate review until after the entry of a final
judgment.

In re Regions Morgan Keegan ERISA Litig., 741 F.

Supp. at 848 (quoting Cardwell v. Chesapeake & Ohio Ry. Co., 504
F.2d

444,

446

(6th

Cir.

1974)).
5

Section

1292(b)

is

to

be

“sparingly applied.”

Cardwell, 504 F.2d at 446; see also In re

Memphis, 293 F.3d at 350 (“Review under § 1292(b) is granted
sparingly and only in exceptional cases.”).

“[D]oubts regarding

appealability . . . [should be] resolved in favor of finding
that the interlocutory order is not appealable.”

United States

v. Stone, 53 F.3d 141, 143-44 (6th Cir. 1995) (quoting In re
Westwood, 971 F.2d 387, 390 (9th Cir. 1992)).
B.

Revision of Interlocutory Orders

Under Local Rule 7.3, “[b]efore the entry of a judgment
adjudicating all of the claims . . . in a case, any party may
move, pursuant to Fed. R. Civ. P. 54(b), for the revision of any
interlocutory order made by that Court.”

W.D. Tenn. R. 7.3(a).

The motion for revision must show:
(1) A material difference in fact or law from that
which was presented to the Court before entry of the
interlocutory order for which revision is sought, and
that in the exercise of reasonable diligence the party
applying for revision did not know such fact or law at
the time of the interlocutory order; or
(2) the occurrence of new material facts or a change
of law occurring after the time of such order; or
(3) a manifest failure by the Court to consider
material facts or dispositive legal arguments that
were presented to the Court before such interlocutory
order.
Id.
an

Courts revise interlocutory orders only when “there is (1)
intervening

change

of

controlling

law;

(2)

new

evidence

available; or (3) a need to correct a clear error or prevent
manifest injustice.”

Louisville Jefferson Cnty. Metro Gov’t v.

6

Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009) (quoting
Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x
949,

959

(6th

relitigate
evidence

Cir.

old

that

judgment.’”

2004)).

matters,
could

have

“Motions

or

to

been

‘may

raised

be

arguments

raise

not

or

prior

to

used

the

to

present
entry

to

In re Regions Morgan Keegan Secs., Derivative, and

ERISA Litig., No. 07-2784, 2010 U.S. Dist. LEXIS 137853, at *1
(W.D. Tenn. Dec. 30, 2010) (quoting 11 Charles Alan Wright et
al., Federal Practice and Procedure § 2810.1 (2d ed. 1995)).
II.

Analysis
A. Tax Injunction Act

Defendant’s

Motion

focuses

on

whether

the

TIA

bars

claimants from bringing actions against private parties engaged
in the tax collection process.

The TIA provides that “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

“applies

only

when

a

claimant seeks to ‘enjoin’ or otherwise hinder ‘the assessment,
levy or collection’ of a state tax.”
v.

Farris,

omitted).

542

F.3d

499,

501

BellSouth Telecomms., Inc.

(6th

Cir.

2008)

(citations

The TIA does not “apply whenever a taxpayer seeks to

enjoin a law that happens to be part of a tax bill.”
503-04.

It

applies

“only

in
7

cases

.

.

.

in

which

Id. at
state

taxpayers

seek

federal-court

paying state taxes.”

orders

enabling

them

Id. at 501 (emphasis added).

to

avoid

Defendant

argues that whether the TIA bars actions against tax collectors
is an unsettled question of first impression and that the swift
resolution of the issue would conserve judicial resources and
materially advance the litigation.
1. Substantial Grounds for Difference of Opinion
A
issue

“difference
is

difficult

of

opinion”

and

of

is

first

established
impression;

“when
(2)

the

(1)
law

the
is

unsettled within the controlling circuit; or (3) the circuits
are split on the issue.”
741

F.

Supp.

2d

at

849.

In re Regions Morgan Keegan Litig.,
Defendant

argues

that

(1)

its

collection of delinquent taxes is protected under the TIA, (2)
there is a difference of opinion within the Sixth Circuit about
the distinction between taxes and fees under the TIA, and (3) a
contrary decision in the Fifth Circuit creates a circuit split
that requires an interlocutory appeal.

Each of these arguments

lacks merit. 1
a. Collection of Delinquent Taxes

1

Defendant also argues that Plaintiffs’ action is barred under the TIA
because Defendant is an “agent” of the City. (Def.’s Mem. 12.) The Court
need not address this argument because Defendant failed to raise it in its
Motion to Dismiss. Section 1392(b) “does not contemplate that a district
court may simply certify a question without first deciding it.” 16 Wright,
Miller & Cooper, Federal Practice and Procedure (2nd ed., 2010 update) §
3930, 419-20; accord In re Community Bank of Northern Va., 622 F.3d 275, 314
n.35 (3d Cir. 2010).

8

Defendant argues that whether the TIA bars suits against
private “collection activities or penalties and fees imposed on
delinquent taxpayers incident to the municipality’s efforts to
perform

collection”

circuit.

(See

is

an

issue

of

Mem.

8.)

Def.’s

first

impression
Neither

in

this

Defendant’s

characterization of the issue nor its argument is well taken.
The Court has decided that Plaintiffs’ suit falls outside the
TIA’s restrictive limits.

(See Order on Motions 23.)

Although

the Sixth Circuit has not ruled on the issue as narrowly defined
by Defendant, it has explicitly set forth the parameters within
which

the

TIA

applies.

BellSouth,

See

542

F.3d

at

501.

Defendant’s case does not fall within those narrow parameters.
Nor does its argument address “novel” or “difficult” issues.
See Hoffman v. GC Services, L.P., No. 3:08-cv-255, 2010 U.S.
Dist. LEXIS 46338, at *2 (E.D. Tenn. May 11, 2010).

This is not

an issue of first impression.
Defendants’ Motions suggest that this Court’s prior legal
conclusions about the TIA were incorrect.

(See Def.’s Mem. 8,

10, 13; Def.’s Revision of Interlocutory Orders 2, 7.”

Arguing

“that a court’s decision was incorrect” is not tantamount to
asserting that an issue is difficult or of first impression.
Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, 426
F. Supp. 2d 125, 129 (S.D.N.Y. 2005).

Section 1292(b) is “not a

vehicle to question the correctness of a district court’s ruling
9

or

to

obtain

a

second,

more

favorable

opinion.”

Ryan

v.

Flowerserve Corp., 444 F. Supp. 2d 718, 723 (N.D. Tex. 2006)
(citing McFarlin
(11th

Cir.

v.

Conseco

2004)).

Serv.,

There

must

LLC,

be

381

genuine

F.3d
doubt

1251,

1256

about

the

correctness of the legal standard the district court applied.
Gieringer

v.

Cincinnati

Ins.

Cos.,

No.

3:08-cv-267,

2010

WL

2572054 (E.D. Tenn. June 18, 2010); accord Stone v. Patchett,
No. 08 CV 5171 (RPP), 2009 U.S. Dist. LEXIS 47852, at *5-6
(S.D.N.Y. June 2, 2009).
Defendant

does

not

argue

incorrect legal standard.

that

the

Court

applied

an

Instead, it argues that BellSouth,

542 F.3d at 504, was “factually and legally distinguishable from
the instant case.”

(Def.’s Mem. 8.)

Defendant argues that a

more refined reading of BellSouth and Wright v. McClain, 835
F.2d

143,

145

(6th

(Def.’s

Mem.

Court’s

application

disagreement
situation
applicable
impression.

Cir.

8-9.)

with

where
law,”

1987),

Because
of
the

there
there

law

is

bar

Defendant

to

the

outcome,
are

would

facts
rather

substantial
no

“is

Plaintiffs’

challenging

[based
than

on]

its

presenting

disputes

difficult

suit.

issue

as

to

of

the
own
a
the

first

Gieringer, 2010 WL 2572054, at *3 (citing Novacor

Chems. v. GAF Corp., 164 F.R.D. 640, 648 (E.D. Tenn 1996)).
Even if the issue were one of first impression, that alone
would be insufficient.

See Hoffman v. GC Services, L.P., 2010
10

WL 1882026 at *2.

Defendant offers no convincing argument that

this is a “novel” or “difficult issue” such that an immediate
appeal would resolve the litigation.

Id.

Even issues of first

impression are not “sufficient to show substantial grounds for
disagreement.”

Young v. Wells Fargo Bank, No. 09-4255, 2009 WL

3255163, at *3 (E.D. La. Oct. 7, 2009).

That “counsel disagrees

on applicable precedent does not qualify the issue as one over
which

there”

are

differing

opinions

so

as

to

necessitate

Ryan, 444 F. Supp. 2d at 724.

interlocutory appeal.

b. Split in Sixth Circuit
Defendant
differing

opinions

previously
arguing

cites

rejected

that

incorrect
[payments]

and

the
that

Wright

within

and

the

arguments
Court’s

a

circuit.
from

its

“specifically

‘tax

under

as

evidence

Defendant
Motion

interpretation

Wright

constituted

BellSouth

of

to

recycles
Dismiss,

BellSouth

considered

state

law’

8-9)

(quoting

Wright,

835

F.2d

at

143.)

was

whether

within

meaning of that term under the Tax Injunction Act.”
Mem.

of

the

(Def.’s

Defendant’s

argument reflects a fundamental misunderstanding of the TIA’s
application to this case.

Here, Plaintiffs are not attempting

to evade state tax liability; they are seeking money damages
based on Defendant’s allegedly illegal collection of fees.
In BellSouth, the Sixth Circuit held that the TIA “applies
only when a claimant seeks to ‘enjoin’ or otherwise hinder ‘the
11

assessment, levy or collection’ of a state tax.”
501 (citation omitted).

542 F.3d at

Relying on Hibbs v. Winn, 542 U.S. 88

(2004), the Sixth Circuit concluded that the TIA applies “only
in

cases

.

.

.

in

which

state

taxpayers

seek

federal-court

orders enabling them to avoid paying state taxes."
(emphasis in original).
seeking

relief

“that

Id. at 501

The TIA does not prevent parties from

merely

facilitates

what

businesses

have

done for a long time—recover[ing] the costs of doing business.” 2
Id. at 502 (emphasis added).

So long as the requested relief

does not “interfere with the relationship between the body that
imposed the tax [] and the bodies that owe the tax,” an action
is not barred under the TIA.

Id.

BellSouth is consistent with Wright.

In Wright, the Sixth

Circuit addressed a defendant’s constitutional challenge to a
Tennessee

statute

that

required

parolees

to

make

monthly

payments to a supervision fund and to a victim's compensation
fund.

See 835 F.2d at 143-44.

In deciding whether monthly

payments were taxes or fees, the court considered whether the
funds were for general revenue raising purposes or “a charge for
a personal service voluntarily engaged [in].”

Id. at 144.

The

monthly payments were found to be taxes because they defrayed

2

That the First Amendment was the vehicle for the plaintiff’s challenge was
not essential to the court’s holding. The plaintiffs in BellSouth “not only
[] declined to challenge th[e] provision but also [] accepted its validity
for purposes of th[e] case. If successful, th[e] injunction thus w[ould] not
hinder the Commonwealth's interest in collecting the tax.” 542 F.3d at 501.

12

the cost of supervised release.
collection

scheme

on

Id.

Invalidating Tennessee’s

constitutional

grounds

would

threatened the state’s “administration of [] affairs.”

have
Id. at

144.
Wright

and

BellSouth

are

not

legally

inconsistent.

Wright’s protection of “revenue raising” mechanisms accords with
BellSouth’s prohibition of suits by individuals attempting to
evade state tax requirements.

See BellSouth, 542 F.3d at 502.

Both cases stand for the proposition that the relief requested
is central to the application of the TIA.

See BellSouth, 542

F.3d

relief

at

501

(Plaintiffs

responsibility

for

the

did

not

“seek[]

underlying

tax,

whether

from

legal

through

an

injunction or otherwise.”); Wright, 835 F.2d at 143 (challenging
the constitutionality of a Tennessee program to avoid making
payments).

Therefore, “the holding in [Wright] is [consistent

with] the prevailing view within the Circuit that” the TIA bars
claimants who seek to hinder the assessment, levy, or collection
of state taxes.

In re Regions Morgan Keegan ERISA Litig., 741

F. Supp. 2d at 850.
c. Decisions in the Fifth and Seventh Circuits
Defendant
Washington

argues

creates

interlocutory

that

the

appeal

substantial
to

Fifth and Sixth Circuits.

Fifth

Circuit’s

disagreement

resolve

and

inconsistencies

(See Def.’s Mem. 11.)
13

decision

in

requires

an

between

the

Defendant

cites Washington for the proposition that “the plain language of
the [TIA]’s jurisdictional limitation is not focused on taxes
only, but rather the broader activities of assessing, levying,
and

collecting

Circuit’s
Circuit

taxes.”

Defendant

interpretation
has

not

had

is

specifically

interference

might

(Def.’s Mem 11.)
In

the

private

to

within

the

the

Fifth

“the

because

analyze

prohibited

that

Sixth

whether

from

collection

federal

protection

of

court

the

TIA.”

Defendant’s argument is not well taken.

constitutionality

through

fall

Washington,

authorizing

persuasive

cause

activities

suggests

of

the
a

plaintiffs

1998

collection
parties

City
of

and

of

New

delinquent
imposing

an

challenged
Orleans

“the

ordinance

valorem

ad

additional

taxes
thirty

percent penalty for collection costs.” 338 F.3d at 443.

The

Fifth Circuit affirmed the dismissal of the plaintiff’s claims,
reasoning that the fees were intended to defray the costs of tax
collection,

and

that

the

TIA

“[was]

meant

to

be

a

broad

jurisdictional impediment to federal court interference with the
administration of state tax systems.”

Id. at 444 (citing United

Gas and Pipeline Co. v. Whitman, 595 F.2d 323, 326 (5th Cir.
1979) (emphasis added)).
Washington
Circuit

and

plaintiffs’

is

other

consistent

with

jurisdictions

constitutional

because,

challenge
14

precedent

would

if

in

the

Sixth

successful,

have

disrupted

the
the

administration of New Orleans’ tax system.

See BellSouth 542

F.3d at 502 (finding that the TIA does not bar claims when a
plaintiff attempts to recoup “the costs of doing business”);
Wright,

835

F.2d

at

143-44

(dismissing

a

prisoner’s

constitutional challenge on TIA grounds); see also In re WalMart Stores, Inc., No. 09-8039, 2009 U.S. App. LEXIS 29535, at
*4 (7th Cir. Nov. 12, 2009) (“We fail to see how a suit against
a private party could challenge the validity of a tax, given
that private parties do not have the power of taxation.

We have

not found another case where the parties even argued, let alone
the court agreed, that the TIA prevented a private dispute from
being adjudicated in federal court.”).

There is no substantial

ground for disagreement between the Fifth and Sixth Circuits.
2.

Controlling Question of Law

Defendant argues that interlocutory appeal is necessary to
resolve

the

controlling

question

of

whether

“the

TIA

bars

a

complaint that alleges the illegality of attorney’s fees and
penalties

collected

incident

to

delinquent

tax

collection.”

(Def.’s Mem. 7.)
A matter of law is “controlling” if its resolution could
materially

affect

the

litigation’s

outcome—that

is,

if

the

case’s resolution could result in reversal of a district court’s
final judgment, has precedential value, or would save the court
and the parties substantial time and resources.
15

In re Memphis,

293 F.3d at 351; Rafoth v. Nat’l Union Fire Ins. Co., 954 F.2d
1169, 1172 n.8 (6th Cir. 1992).

Defendant is not entitled to an

interlocutory appeal because it has failed to establish that
there

is

a

substantial

ground

for

disagreement

about

this

advance

the

Court’s TIA ruling.
3.
An

Materially Advancing the Litigation

interlocutory

appeal

will

materially

litigation if it “will save substantial resources and litigant
expense.”

W. Tenn. Chptr. of Assoc. Builders & Contrs., Inc. v.

City of Memphis, 138 F. Supp. 2d 1015, 1026 (W.D. Tenn. 2000).
“An

interlocutory

proceedings,

appeal

is

more

appropriate

particularly

in

protracted

and

early

expensive

in

the

cases,

where failure to resolve a question of law early in the case
could

lead

parties.”

to

the

placement

of

an

enormous

burden

on

the

Black & Decker, Inc. v. Smith, No. 07-1201, 2008 U.S.

Dist. LEXIS 63054, at *10 (W.D. Tenn. Aug. 13, 2008) (internal
quotation marks and citations omitted); accord In re Regions
Morgan Keegan ERISA Litig., 741 F. Supp. at 851.

Concerns for

efficiency must be balanced “against the inefficiency of having
the Court of Appeals hear multiple appeals in the same case.”
Primavera Familienstifung v. Ashkin, 139 F. Supp. 2d 567, 570
(S.D.N.Y. 2001).
Defendant argues that interlocutory appeal is appropriate
because

“the

orderly

administration
16

of

justice

is

frustrated

when

parties

are

forced

to

grind

forward

to

final

judgment

before they can challenge the correctness of some isolated, but
determinative,

question

of

law.”

(Def.’s

Mem

5)

(citing

W.

Tenn. Chptr. Of Assoc. Builders & Contrs., Inc., 138 F. Supp. at
1018).

Defendant contends that interlocutory appeal of the TIA

claim would materially advance the litigation because it is a
controlling issue that could work a timely disposition.
Although quick resolution of a controlling issue conserves
judicial resources and saves litigation expenses, Defendant has
failed to show that there is an exceptional circumstance.

“It

is true that a successful appeal by [Defendant could result in
expediting the case].

[But if] that were to be the result . . .

that would be true any time a defendant [] raise[s] on appeal an
issue going to an essential element of the plaintiff's claim.
That is not an exceptional circumstance.”

Ace Am. Ins. Co. v.

RC2 Corp., No. 07 C 5037, 2008 U.S. Dist. LEXIS 93692, at *9
(N.D. Ill. Nov. 13, 2008).

“[Defendant’s] circumstances [do

not] justify a departure from the ordinary rule of postponing
judicial review until after entry of final judgment.”
Regions

Morgan

(citing

16

Keegan

Charles

ERISA

Alan

Litig.,

Wright

et

741
al.,

F.

Supp.

Federal

2d

In re
at

851

Practice

and

Procedure § 3930 n.46 (2d ed. 1996) (internal quotation marks
and citation omitted)).

17

The primary case on which Defendant relies was reversed by
the Sixth Circuit because immediate appeal was inappropriate.
See

In

re

Memphis,

293

F.3d

at

351

(reversing

the

district

court’s certification of issues for interlocutory appeal).

This

Court is not persuaded that “interlocutory appeal should [] be
granted

in

[this]

circumstance[],”

or

that

immediate

would “avoid protracted and expensive litigation.”
504 F.2d at 446.

appeal

Cardwell,

Defendant’s Motion for Interlocutory Appeal

and Motion to Stay is DENIED on the TIA issue.
B.

TIA
and
Defendant’s
Interlocutory Order

Defendant

argues

that

the

Motion

for

Court

should

Revision

of

revise

its

“Interlocutory Order” because of the “occurrence of . . . a
change

of

law”

since

Defendant’s

April

21

Motion.

(Def.’s

Revision of Interlocutory Orders 2-3) (citing W.D. Tenn. Civ. R.
7.2(b)(2)).

No “change of law” has occurred since Defendant’s

April 21 Motion.
Defendant argues that Empress Casino, 2011 U.S. App. LEXIS
13898, at *30-31, and Washer & Refrigeration, 2010 U.S. Dist.
LEXIS

93576,

at

*12-14,

have

changed

the

law.

In

Empress

Casino, the Seventh Circuit dismissed a private action against
Illinois

racetrack

owners

because

the

plaintiffs

sought

a

constructive trust that “would thwart the tax as surely as an
injunction against its collection.”

18

Id. at *7-8.

If granted,

the constructive trust would result in [plaintiffs’] recapturing
the taxes they have paid,” and “[t]he tax would be nullified.”
Id.

The “constructive trust in favor of the taxpayers would

[have]

defeat[ed]

the

purpose

effectively as an injunction.”

of

the

Tax

Injunction

Act

as

Id. at *30.

In Washer & Refrigeration, the Middle District of Alabama
dismissed several claims for equitable relief because they were
barred by the TIA, including requests for a constructive trust
and

declarations

that

"any

and

all

tax

assessments,

liens,

levies, and collections performed in relation to Defendants'[]
contracts are invalid, void, and constitute unlawful takings."
2010 U.S. Dist. LEXIS 93576, at *7.

The plaintiffs failed to

explain how “the relief sought, if obtained, would not at least
‘restrain’

the

assessment

and

collection

actually ‘enjoin [and] suspend’ them.”

of

taxes,

if

not

Id. (citations omitted).

Therefore, the TIA barred plaintiffs’ claims.
Empress Casino and Washer & Refrigeration stand for the
proposition that, in TIA cases, “the bottom line [is the] relief
[plaintiffs]

seek.”

Id.

at

*12.

In

both

cases

plaintiffs

requested equitable relief, such as declarations of validity or
constructive

trusts

courts

not

must

do

for
is

disputed
freeze

funds.
the

state’s

imposition of [these equitable remedies].”

19

“What
tax

the

federal

moneys

by

Empress Casino, 2011

U.S. App. LEXIS 13898, at *30.
monetary relief.”

“The [TIA] does not bar federal

Id. (emphasis added).

Plaintiffs in this case seek monetary relief; they are not
seeking

equitable

remedies.

“[W]e

fail

to

see

how

a

suit

[requesting money damages] against a private party . . . could
challenge the validity [or enjoin the application] of a tax.”
In re Wal-Mart Stores, Inc., 2009 U.S. App. LEXIS 29535, at *2.
In

its

Motion

for

Revision,

Defendant

again

cites

Washington for the proposition that “[t]he Tax Injunction Act is
focused not on the subject matter of [the] tax, but on the
broader activities of ‘assessment, levy or collection of any
tax[,]’” and that Plaintiffs’ action must be dismissed.

(Def.’s

Revision of Interlocutory Orders 6) (citing 338 F.3d at 443).
Motions

for

matters.”
Dist.

Revision

“may

not

be

used

to

relitigate

old

In re Regions Morgan Keegan ERISA Litig., 2010 U.S.

LEXIS,

at

*1.

This

Court

rejected

Defendant’s

interpretation of Washington in its Order on Motions.
Even if Washington were a novel development in controlling
law, its holding is distinguishable and inapplicable to this
case.
Defendant’s Motion for Revision is DENIED.
C.

Exhaustion of State Administrative Remedies

Defendant argues that, “if the Court in its reconsideration
of the question, or the Sixth Circuit [] on appeal, determines
20

that

at

least

one

(1)

putative

class

member

must

allege

compliance with . . . Tennessee’s exclusive state court remedy,
then the instant lawsuit must be dismissed.”

(Def.’s Mem. 14.)

Defendant’s argument is misplaced.
The basic requirement of an interlocutory appeal under §
1292(b)

is

the

entry

of

an

order.

“The

statute

does

not

contemplate that a district judge may simply certify a question
without first deciding it."

Ray v. American Nat'l Red Cross,

921 F.2d 324, 325 (D.C. Cir. 1990) (quoting 16 C. Wright, A.
Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure
§ 3930, at 156 (1977)); accord In re Memphis, 293 F.3d at 350
(“This court in its discretion may permit an appeal to be taken
from an order certified for interlocutory appeal.”) (emphasis
added).
Defendant

did

not

raise

the

exhaustion

argument

in

its

Motion to Dismiss, and this Court did not address it in its
Order on Motions.

Defendant’s Motion based on exhaustion of

state remedies is DENIED.
Defendant’s argument would be misplaced even if it had been
raised

in

its

requirement.

Motion

to

Dismiss.

There

is

no

exhaustion

Plaintiffs’ claims are not barred under the TIA

because they seek monetary relief.

See Empress Casino, 2011

U.S. App. LEXIS 13898, at *32 (“The Tax Injunction Act bars
federal equitable relief only if the plaintiffs have available
21

to them a state remedy that is ‘plain, speedy and efficient.’”)
(citations omitted) (emphasis added).
D.

Rule 19 Joinder

Defendant argues that the City of Memphis (the “City”) is a
necessary party under Rule 19 of the Federal Rules of Civil
Procedure

“because

adjudication

in

the

City’s

absence

might

leave [Defendant] subject to a substantial risk of incurring
multiple obligations.”

(Def.’s Mem 18.)

The contract between

the City and Defendant requires “Linebarger to indemnify and
hold

the

City

harmless

from

any

losses

arising

Linebarger’s performance of the contract.”

(Id.)

from

[]

Defendant

argues that it could be susceptible to duplicative liability in
the instant case and the state litigation.

(Id.)

If the City

were joined in this action, “the risk of multiple obligations to
the same plaintiffs would be avoided.”

(Id.)

Defendant must establish that joining the City under Rule
19

involves

substantial

a

controlling

grounds

for

question

differing

of

law,

opinions

that

about

there

are

joining

the

City, and that including the City would materially advance the
ultimate termination of the litigation.
at 350.
joining
Defendant

In re Memphis, 293 F.3d

Defendant argues, with one supporting citation, that
the

City

argues,

under
without

Rule

19

citation,

is

that

would materially advance the litigation.
22

a

controlling

issue.

interlocutory

appeal

Defendant also argues,

without citation or additional justification, that the City’s
joinder is an issue with a substantial basis for a difference of
opinion.
Defendant’s Motion makes clear that it seeks interlocutory
appeal because “of its own disagreement with the outcome [in
this Court’s Order on Motions].”

(See Def.’s Mem. 18); see also

Gieringer, 2010 U.S. Dist. LEXIS 61086, at *3.

Interlocutory

appeals are not avenues for mundane disagreements with trial
courts; the issues and justifications requiring appeal must be
exceptional.

See In re Memphis, 293 F.3d at 350.

Because

Defendant has not established that the City’s joinder under Rule
19 is an exceptional circumstance under § 1392(b), its Motion
based on joinder is DENIED.
E.

Colorado River Doctrine

Defendant argues that, “while plaintiffs in the State court
action

present

some

different

theories

of

recovery

than

the

plaintiffs in the present action, both cases turn on the same
set of facts and the Court’s interpretations of [] Tennessee
law.”

(Def.’s Mem. 21.)

should

stay

proceedings

Defendant contends that this Court
under

the

Colorado

River

doctrine

because a stay would conserve time and judicial resources.
The Court has decided that staying this action would be
inappropriate.
that

decision

(See Order on Motions 20.)
was

erroneous

because
23

the

Defendant argues
state

and

federal

actions

“both

collected

involve

attorney’s

(Def.’s Mem. 20.)

claims
fees

that

in

the

violation

of

defendants

[Tennessee

law].”

The state court action would not resolve the

issues and claims before this Court.
20.)

respective

(See Order on Motions 19-

The “Court’s decision on [the issue] rested on a highly

fact-specific

inquiry

that

turned

on

the

posture of this complex [] litigation.”

specific

facts

and

Stone, 2009 U.S. Dist.

LEXIS 47852, at *5-6.
Defendant “does not argue that the Court applied the wrong
legal standard to Defendant’s claims in deciding [its] motion to
dismiss.

Rather, the essence of [Defendant’s] argument is that

the Court incorrectly applied the law to the facts presented.”
Id.

A “question of law certified for interlocutory appeal must

refer to a pure question of law that the reviewing court could
decide quickly and cleanly without having to study the record.”
Bild v. Konig, No. 09-CV-5576, 2011 U.S. Dist. LEXIS 100827, at
*4 (E.D.N.Y. Sept. 7, 2011) (citing Stone, 2009 U.S. Dist. LEXIS
47852,
Litig.,

at

*

741

interlocutory
question[s]

5-6);
F.

accord

Supp.

appeals
of

law”)

In

re

Regions

Morgan

at

848

(noting

that

when

the

issues

(emphasis

involve

added).

Keegan
courts

ERISA
grant

“controlling

“[T]he

questions

presented for interlocutory appeal by [Defendant] would require
the [Sixth] Circuit to review this Court's application of the
law

to

the

facts

presented

by
24

the

parties.

Under

these

circumstances, Defendant’s questions do not present issues of
pure law and therefore are not appropriate for interlocutory
review.”

Stone, 2009 U.S. Dist. LEXIS 47852, at *5-6 (citations

omitted).

The “antithesis” of a proper § 1292(b) appeal is an

action that “turns on whether . . . the district court properly
applied settled law to the facts or evidence of a particular
case.”

Konig, 2011 U.S. Dist. LEXIS, at *4 (citing Mills v.

Everest

Reinsurance

Co.,

771

F.

Supp.

2d

270,

276

(S.D.N.Y.

2009)); see also McFarlin v. Conseco Servs., 381 F.3d at 1259.
Defendant’s

Motion

for

Interlocutory

Appeal

based

on

the

Colorado River doctrine is DENIED.
III. Conclusion
Defendant’s Motion for Interlocutory Appeal and Motion to
Stay is DENIED.

Defendant’s Motion for Revision under Local

Rule 7.3 is also DENIED.
So ordered this 26th day of March, 2012.

s/ Samuel H. Mays, Jr.__ ____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

25