08-6229-cv
Marshall v. Middlefield
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 12 th day of January, two thousand ten.
PRESENT:
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges,
LOUIS L. STANTON,*
District Judge.
_____________________________________
Kerry L. Marshall,
Plaintiff-Appellant,
v. 08-6229-cv
Town of Middlefield, Anne L. Olszewski, Town of
Middlefield’s Tax Collector, ind., Jane Doe, ind.,
Defendants-Appellees.
_________________________________
*
Louis L. Stanton, Senior Judge of the United States
District Court for the Southern District of New York, sitting by
designation.
FOR PLAINTIFF-APPELLANT: Kerry L. Marshall, pro se,
Middlefield, Connecticut.
FOR DEFENDANT-APPELLEE: No appearance. See Fed. R. App. P.
31(c).
Appeal from the United States District Court for the
District of Connecticut (Kravitz, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Kerry L. Marshall appeals from the judgment
of the United States District Court for the District of
Connecticut (Kravitz, J.) granting Defendants’ summary
judgment motion on the ground that the Tax Injunction Act,
28 U.S.C. § 1341, and the principle of comity deprived it of
subject matter jurisdiction over his 42 U.S.C. § 1983
claims. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and
the issues on appeal.
This Court reviews de novo a district court’s legal
conclusion that it lacked subject matter jurisdiction. See
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
To the extent that the district court granted summary
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judgment, this Court reviews such orders de novo and
determines whether the district court properly concluded
there was no genuine issue as to any material fact and the
moving party was entitled to judgment as a matter of law.
See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202-03 (2d
Cir. 1995). Summary judgment is appropriate where “there is
no genuine issue as to any material fact and . . . the
movant is entitled to a judgment as a matter of law,” Fed.
R. Civ. P. 56(c), i.e., “[w]here the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
The Tax Injunction Act (“TIA”) provides that “[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; see Long Island
Lighting Co. v. Town of Brookhaven, 889 F.2d 428, 431 (2d
Cir. 1989) (explaining that the TIA prevents district courts
from providing injunctive and declaratory relief as long as
there is a “plain, speedy and efficient” state court
remedy). Similarly, the principle of comity prevents a
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taxpayer from seeking damages in a § 1983 action if a plain,
adequate, and complete remedy may be had in state court.
See Long Island Lighting Co., 889 F.2d at 431. Before the
TIA may be invoked to bar district court jurisdiction, two
conditions must exist: (1) the assessment or surcharge in
question must constitute a tax; and (2) the plaintiff must
lack a “plain, speedy and efficient remedy in state court.”
Hattem v. Schwarzenegger, 449 F.3d 423, 427 (2d Cir. 2006).
This Court has explained that “the TIA should be interpreted
to preclude jurisdiction only where ‘state taxpayers seek
federal-court orders enabling them to avoid paying state
taxes.’” Luessenhop v. Clinton County, 466 F.3d 259, 267 (2d
Cir. 2006) (quoting Hibbs v. Winn, 542 U.S. 88, 107 (2004)).
Here, the district court properly concluded that
Appellant’s complaint sought to avoid the payment of taxes.
The parties disputed whether Appellant had paid a particular
motor vehicle property tax bill that had been assessed on
his Dodge Intrepid. Furthermore, although Appellant argues
that his case is analogous to Luessenhop and Wells v.
Malloy, 510 F.2d 74, 77 (2d Cir. 1975), he is not directly
challenging the method by which he was notified of the
delinquent taxes, nor the state statute specifying that he
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must pay the delinquent taxes on the Dodge Intrepid before
he is allowed to pay the taxes on his other automobile.
We note that Connecticut provides multiple methods by
which a taxpayer may contest property taxes: (1) the
taxpayer may administratively appeal the assessment to a
board of assessment appeals, and he may then appeal that
decision to Connecticut Superior Court, under Conn. Gen.
Stat. § 12-117a; or (2) the taxpayer may directly file an
action in Connecticut Superior Court to claim that the
property has been wrongfully assessed, under Conn. Gen.
Stat. § 12-119. See, e.g., Second Stone Ridge Coop. Corp.
v. City of Bridgeport, 597 A.2d 326, 326 (Conn. 1991)
(distinguishing between § 12-119 and § 12-117a, which was
formerly codified as § 12-118, in the context of challenges
to valuation). Appellant argues that it would have been
impossible for him to have timely filed a claim under § 12-
119 in state court since the assessment concerned the 1997
tax year and he only learned of the assessment in 2007.
However, even assuming this is true, it does not appear
likely that the Connecticut state courts would construe the
statute of limitations in a way that would completely
foreclose any claim. See, e.g., Wiele v. City of
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Bridgeport, No. CV074020814S, 2008 WL 5253146, at *2-4
(Conn. Super. Ct. 2008); Lawrence & Memorial Hosp. v. City
of New London, No. CV074007075, 2008 WL 271664, at *4-5
(Conn. Super Ct. 2008); cf. Interlude, Inc. v. Skurat, 754
A.2d 153, 158 (Conn. 2000) (calling a result in which
application of the § 12-119 statute of limitations would
have left plaintiff with only six days to file an appeal
“bizarre”).
Thus, the district court properly concluded that it
lacked subject matter jurisdiction to consider his claims
under the TIA and the principle of comity. See Long Island
Lighting, 889 F.2d at 433. Accordingly, the district
court’s judgment is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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