Nemetz v. Town of Sanbornton

2013 DNH 034

• Court: District Court, D. New Hampshire
• Decided: March 14, 2013
• Docket: 13-CV-010-SM
• Status: Published

Opinion

Nemetz v . Town of Sanbornton 13-CV-010-SM 3/14/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David Nemetz, Plaintiff

v. Case N o . 13-cv-10-SM Opinion N o . 2013 DNH 034 Town of Sanbornton, Defendant

O R D E R

Plaintiff’s motion to remand, doc. n o . 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. n o . 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. 5 7 8 , 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,

2 450 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 1 2 8 , 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 i n , but not limited t o , 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. 1 0 0 , 116

(1981)). See also Coors Brewing C o . v . Mendez-Torres, 678 F.3d

1 5 , 30 (1st Cir. 2012) (affirming dismissal on comity grounds of

declaratory action seeking invalidation of Puerto Rico beer t a x ) .

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). The case,

3 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.