Russell City Energy Company, LLC v. City of Hayward

Northern District of California, cand-4:2014-cv-03102

NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on 10/28/14.

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 RUSSELL CITY ENERGY COMPANY, LLC, No. C 14-03102 JSW 10 Plaintiff, 11 v. NOTICE OF QUESTIONS FOR United States District Court HEARING For the Northern District of California 12 CITY OF HAYWARD, 13 Defendant. / 14 15 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE 16 NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON 17 October 31, 2014, AT 9:00 A.M.: 18 The Court has reviewed the parties' papers and, thus, does not wish to hear the parties 19 reargue matters addressed in those pleadings. If the parties intend to rely on authorities not 20 cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these 21 authorities reasonably in advance of the hearing and to make copies available at the hearing. If 22 the parties submit such additional authorities, they are ORDERED to submit the citations to the 23 authorities only, with reference to pin cites and without argument or additional briefing. Cf. 24 N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to 25 explain their reliance on such authority. The Court suggests that associates or of counsel 26 attorneys who are 27 28 1 working on this case be permitted to address some or all of the Court's questions contained 2 herein. 3 1. In its opposition brief, Plaintiff argues that if it prevails in this case, Defendant "will be 4 at liberty to continue to collect" the Utility Users Tax ("UUT") from Plaintiff "and 5 presumably will do so. The issue presented here is whether [Defendant] must live with 6 the consequences of its actions, i.e. it must pay damages." (Opp. Br. at 11:19-21.) 7 Does Plaintiff intend to take the position that at least some of those damages are the 8 UUT assessments it has paid? 9 2. Following the United States Supreme Court's decision in Hibbs v. Winn, 542 U.S. 88, 10 (2004), the Ninth Circuit has stated that in order to determine whether the Tax 11 Injunction Act ("TIA") would bar a plaintiff's claim, the "dispositive question. . . is United States District Court For the Northern District of California 12 whether plaintiff's action, if successful, would reduce the flow of state tax revenue." 13 Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1184 (9th Cir. 2006); accord May 14 Trucking Company v. Oregon Dep't of Transportation, 388 F.3d 1261, 1267 (9th Cir. 15 2004) (citing Hibbs, 542 U.S. at 106). 16 What is Plaintiff's best argument that, if it prevails on its claims for damages and 17 declaratory relief, the effect would not be to reduce the flow of state tax revenue or 18 otherwise restrain, enjoin or suspend a state tax assessment? See, e.g., Beach Creek 19 Marina v. Royal Tax Lien Services, LLC, 2010 WL 2674457, at *5 (D.N.J. June 30, 20 2010) (dismissing, inter alia, claim for breach of contract where relief sought would 21 enjoin, suspend, or restrain a state tax assessment); Jefferson Development Group, Inc. 22 v. Georgetown Municipal Water & Sewer Service, 2008 WL 687193, at *4-*5 (E.D. Ky. 23 Mar. 10, 2008) (after concluding that tap fee was a tax, dismissing, inter alia, claim for 24 breach of contract on basis that claim would be barred by TIA); Chattanooga Gas 25 Company v. City of Chattanooga, 2007 WL 1387505, at *6, *12 (E.D. Tenn. May 7, 26 2007) (same); Karas v. Katten Muchin Zavis Rosenman, 2006 WL 20507, at *5-*6 27 (S.D.N.Y. Jan. 3, 2006) (dismissing breach of contract claim as barred by federal Anti- 28 Injunction Act and Tax Injunction Act), aff'd 2009 WL 38898 (2d Cir. Jan. 8, 2009); 2 1 compare Fredrickson v. Starbucks Corp., 980 F. Supp. 2d 1227, 1232-33 (D. Or. 2013) 2 (finding that plaintiffs claim for breach of contract against private employer not barred 3 by TIA, where plaintiffs admitted income at issue was taxable but challenged 4 employer's policy of imputing or estimating tips).1 5 IT IS SO ORDERED. 6 Dated: October 28, 2014 JEFFREY S. WHITE 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 The parties make much of the fact that neither side had brought cases involving the interplay of breach of contract claims and the Tax Injunction Act to the Court's 28 attention. Although these cases are not binding on the Court, and the parties need not address that point at oral argument, the Court brings them to the parties' attention. 3