                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 09a0434p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                 X
                                                  -
 LOUISVILLE/JEFFERSON COUNTY METRO
                                                  -
 GOVERNMENT and LEXINGTON-FAYETTE
 URBAN COUNTY GOVERNMENT,                         -
                          Plaintiffs-Appellants, -
                                                     Nos. 08-6302/6303

                                                  ,
                                                   >
                                                  -
                                                  -
          v.
                                                  -
                                                  -
 HOTELS.COM, L.P. et al.,
                       Defendants-Appellees. -
                                                 N
                   Appeal from the United States District Court
                for the Western District of Kentucky at Louisville.
                No. 06-00480—Thomas B. Russell, District Judge.
                                  Argued: October 14, 2009
                          Decided and Filed: December 22, 2009
                                                                                             *
    Before: GILMAN and GIBBONS, Circuit Judges; ANDERSON, District Judge.

                                     _________________

                                          COUNSEL
ARGUED: Anthony G. Raluy, FOLEY, BRYANT, HOLLOWAY & RALUY,
Louisville, Kentucky, for Appellants. Darrel J. Hieber, SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP, Los Angeles, California, for Appellees. ON BRIEF:
Anthony G. Raluy, Irvin Daniel Foley, FOLEY, BRYANT, HOLLOWAY & RALUY,
Louisville, Kentucky, Michael J. O’Connell, JEFFERSON COUNTY ATTORNEY’S
OFFICE, Louisville, Kentucky, Rochelle E. Boland, Leslye M. Bowman, LEXINGTON-
FAYETTE URBAN COUNTY GOVERNMENT DEPARTMENT OF LAW, Lexington,
Kentucky, for Appellants. Darrel J. Hieber, SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP, Los Angeles, California, Karen L. Valihura, SKADDEN, ARPS,
SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware, William Jay Hunter, Jr.,
Timothy J. Eifler, David S. Sullivan, STOLL KEENON OGDEN, Louisville, Kentucky,
Marcus G. Mungioli, Brian S. Stagner, KELLY HART & HALLMAN LLP, Forth
Worth, Texas, for Appellees.



        *
         The Honorable S. Thomas Anderson, United States District Judge for the Western District of
Tennessee, sitting by designation.


                                                1
Nos. 08-6302/6303       Louisville/Jefferson County Metro Gov’t et al.           Page 2
                        v. Hotels.com, L.P. et al.


                                 _________________

                                      OPINION
                                 _________________

         RONALD LEE GILMAN, Circuit Judge. Hotels.com, L.P. and various other
online travel companies (OTCs) engage in a business practice whereby they agree to pay
lodging establishments a contractually agreed room rate if the OTCs find customers to
rent the available rooms. Customers pay to rent the rooms at a higher “retail” rate
charged by the OTCs, which then remit the original negotiated price to the lodging
establishments along with any taxes applicable to the negotiated “wholesale” price.

         Asserting that the OTCs are violating local tax ordinances by failing to pay a
transient room tax on the difference between the two rates, the Louisville/Jefferson
County Metro Government (LJCMG) and the Lexington-Fayette Urban County
Government (LFUCG) sued the OTCs in federal court. The district court granted the
OTCs’ motion to dismiss, reasoning that because the OTCs lack ownership and physical
control over the rooms rented, they do not constitute “like or similar accommodations
businesses” within the purview of the ordinances in question. As a result of this
decision, the counties are not collecting transient room taxes on the difference between
the two rates. For the reasons set forth below, we AFFIRM the judgment of the district
court.

                                 I. BACKGROUND

A.       Factual background

         The Kentucky Enabling Acts authorize counties to impose a transient room tax
on “the rent for every occupancy of a suite, room, or rooms, charged by all persons,
companies, corporations, or other like or similar persons, groups or organizations doing
business as motor courts, motels, hotels, inns or like or similar accommodations
businesses.” Ky. Rev. Stat. Ann. § 91A.390(1). Money collected from the tax is used
to establish convention and tourist commissions “for the purpose of promoting
Nos. 08-6302/6303        Louisville/Jefferson County Metro Gov’t et al.              Page 3
                         v. Hotels.com, L.P. et al.


convention and tourist activity.” Ky. Rev. Stat. Ann. § 91A.350(1). Pursuant to this
authority, the two counties in question enacted ordinances imposing a transient room tax
and adopted the language of the Enabling Acts to describe the category of businesses to
be taxed. See Louisville/Jefferson County, Ky., Code of Ordinances § 121.01(A);
Lexington-Fayette Urban County, Ky., Charter of Code of Code of Ordinances § 2-
172(a).

          According to the counties’ allegations, the OTCs contract with hotels for rooms
at a discounted “wholesale” price. The OTCs then offer the rooms for rent at a “retail”
price that is higher than the negotiated wholesale rate and purport to include “tax
recovery charges and fees.” When a customer books a room using an OTC, the company
remits to the appropriate hotel both the negotiated wholesale price and the taxes due on
that lesser amount. The counties contend that this arrangement deprives them of the
taxes owed on the difference between the retail price and the wholesale price.

B.        Procedural background

          In September 2006, LJCMG sued the OTCs in federal district court for the
alleged violation of its transient room tax ordinance, seeking declaratory relief and
damages. Jurisdiction was based on diversity of citizenship under 28 U.S.C. § 1332(a).
LFUCG filed an intervenor complaint approximately one-and-a-half years later,
asserting the same cause of action and seeking similar relief.

          The OTCs twice moved to dismiss the claim brought against them. They first
filed a motion to dismiss LJCMG’s complaint prior to the addition of LFUCG to the
lawsuit, asserting that they were not “motor courts, motels, hotels, inns or like or similar
accommodations businesses” for the purposes of LJCMG’s ordinance, and that
LJCMG’s proposed construction of the ordinance converted the enactment into an
impermissible excise tax under the Kentucky Constitution. In denying the motion, the
district court reasoned that LJCMG’s allegation that the OTCs leased rooms at a marked-
up retail price was sufficient at the pleading stage to qualify the companies as “like or
similar accommodations businesses” under the ordinance. Shortly thereafter, the OTCs
Nos. 08-6302/6303        Louisville/Jefferson County Metro Gov’t et al.               Page 4
                         v. Hotels.com, L.P. et al.


filed a motion for reconsideration and, while this motion was pending, LFUCG filed its
intervenor complaint.

        The district court granted the OTCs’ second motion and reversed its earlier
holding. It determined that the OTCs are not “like or similar” to “motor courts, motels,
hotels, or inns” because they “have neither ownership, nor physical control, of the rooms
they offer for rent.” Because the OTCs did not exist at the time the ordinances were
written, the court remarked that the Kentucky Enabling Acts “have simply failed to keep
up with the times.” The court therefore concluded that the OTCs were not subject to the
ordinances and that the counties’ claims should be dismissed. This timely appeal
followed.

                                     II. ANALYSIS

A.      Standard of review

        A motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure seeks to
have the complaint dismissed based upon the plaintiff’s failure to state a claim upon
which relief can be granted. The court must “accept all the . . . factual allegations as true
and construe the complaint in the light most favorable to the Plaintiff[ ].” Gunasekera
v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citation and internal quotation marks
omitted). Our review of a district court’s grant of a motion to dismiss is de novo. Id. at
465-66.

B.      Overview

        The counties’ primary contention is that the OTCs constitute “like or similar
accommodations businesses” under the ordinances. In addition, LJCMG argues that the
district court lacked a proper basis to grant the OTCs’ motion for reconsideration and
that the court impermissibly made factual findings in ruling on the motion. We will
address each issue in turn.
Nos. 08-6302/6303       Louisville/Jefferson County Metro Gov’t et al.              Page 5
                        v. Hotels.com, L.P. et al.


C.     “Like or similar accommodations businesses”

       To determine whether the OTCs fall under the purview of the ordinances, we
begin by analyzing the statutory language. We must conduct this analysis utilizing
Kentucky law because jurisdiction in this case is based on diversity of citizenship. See
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Essentially, we are obliged to decide
the case as we believe the Kentucky Supreme Court would do. See Stalbosky v. Belew,
205 F.3d 890, 893 (6th Cir. 2000) (applying Kentucky’s negligent-hiring law in a
diversity-of-citizenship case). We will therefore interpret the ordinances using the
framework developed by the Kentucky courts.

       Under that framework, “[t]he essence of statutory construction is to ascertain and
give effect to the intent of the legislature.” Hale v. Combs, 30 S.W.3d 146, 151 (Ky.
2000). To determine legislative intent, courts should analyze the statutory language and
“[r]esort must be had first to the words, which are decisive if they are clear.” Stephenson
v. Woodward, 182 S.W.3d 162, 170 (Ky. 2005) (alteration in original) (internal quotation
marks omitted) (quoting Gateway Constr. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky.
1962)). “[S]tatutes must be given a literal interpretation unless they are ambiguous and
if the words are not ambiguous, no statutory construction is required.” Commonwealth
v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002).

       1.      Plain meaning

       Our initial consideration, therefore, is to determine whether the words of the
ordinances reveal the legislature’s intent to include the OTCs in the category of “like or
similar accommodations businesses.” The counties make three arguments as to why the
plain meaning of the ordinances discloses such an intent. They first contend that, to
avoid rendering the phrase “like or similar accommodations businesses” meaningless,
it cannot be limited to brick-and-mortar establishments and must include companies such
as the OTCs that have only an online presence. But the phrase still has meaning even
if it is construed to exclude online businesses. Bed and breakfasts, hostels, and rooming
Nos. 08-6302/6303       Louisville/Jefferson County Metro Gov’t et al.              Page 6
                        v. Hotels.com, L.P. et al.


houses, for example, are not motor courts, motels, hotels, or inns, yet they presumably
would fall into the “like or similar accommodations businesses” category.

       Second, the counties argue that the phrase “like or similar” indicates a legislative
intent to broaden the category. That observation is surely correct, but it provides little
guidance as to how broadly to construe the category and whether the OTCs should be
included.

       Finally, the counties emphasize the statutory language directing that the tax be
levied on “the rent for every occupancy” of a room charged by accommodations
businesses, and they contend that the full retail price constitutes the rent paid to occupy
a room. The counties’ focus on the amount paid by the ultimate customer is not
conclusive, however, because the tax is not assessed on the occupant of a room, but
rather on the entities doing business as hotels and the like. Accordingly, none of the
counties’ arguments regarding the plain meaning of the ordinances is persuasive.

       Nor does the expressed purpose of the Enabling Acts provision authorizing the
imposition of the transient room tax provide clarification. According to the statute, a
portion of the money collected from the transient room tax “may be used to finance the
cost of acquisition, construction, operation, and maintenance of facilities useful in the
attraction and promotion of tourist and convention business.” Ky. Rev. Stat. Ann.
§ 91A.390(3). The remainder of the funds is to be used to “establish tourist and
convention commissions for the purpose of promoting convention and tourist activity.”
Ky. Rev. Stat. Ann. § 91A.350(1).

       As described by the Kentucky Court of Appeals (the highest court in the state
until 1976), the statute “did two things:        (1) it authorized the creation of an
administrative agency to promote convention and tourist activity in the county, and (2) it
provided for the financing of this activity by the imposition of a room tax upon hotels,
motels and the like.” Second Street Props., Inc. v. Fiscal Court of Jefferson County, 445
S.W.2d 709, 714 (Ky. 1969). The Court in Second Street noted the existence of a
“correlation” between the businesses taxed and the use of the money collected because
Nos. 08-6302/6303       Louisville/Jefferson County Metro Gov’t et al.             Page 7
                        v. Hotels.com, L.P. et al.


hotels and motels in Jefferson County would “specially” benefit from an increase in
tourism. Id.

        This ruling is the basis for the counties’ argument that the OTCs will likewise
reap the benefits of increased tourism in Louisville and Lexington. Because the OTCs
lack any physical presence in these locations, however, they do not “specially” benefit
from increased tourism in those cities any more than they would from an increase in
tourism in any other part of the country. We thus find unpersuasive the counties’
argument that the purpose of the Enabling Acts supports subjecting the OTCs to the
transient room tax.

        The OTCs, on the other hand, attempt to bolster the decision of the district court
by noting that in 2009 the Kentucky General Assembly rejected a proposed bill that
would have extended the category of entities subject to the transient room tax to include
“other entities that may broker or facilitate the transaction.” H.B. 482, 2009 Gen.
Assem., Reg. Sess. (Ky. 2009). This proposed amendment is not conclusively in the
OTCs’ favor, however, because the legislature might have simply been trying to make
explicit what it thought was clear from the statute as presently worded—that OTCs are
“like or similar accommodations businesses.” More likely, though, is the legislature’s
recognition that the express language of the statute as it is written does not reach the
OTCs.

        Elsewhere in the Enabling Acts, the Kentucky legislature defined “hotel” to mean
“any hotel, motel, inn, or other establishment which offers overnight accommodations
to the public for hire.” Ky. Rev. Stat. Ann. § 243.055(1)(a). This definition is limited,
however, to a separate section of the Acts regulating licenses for hotels to sell alcohol
as part of their in-room service. See Ky. Rev. Stat. Ann. § 243.055(1)(a). We therefore
find the definition unhelpful in resolving the instant dispute. Perhaps, as the counties
suggest, the legislature did not intend to restrict the transient room tax to brick-and-
mortar businesses as it did with alcohol licenses and therefore deliberately omitted the
word “establishment” from the taxing provisions. But given that the legislature defined
Nos. 08-6302/6303       Louisville/Jefferson County Metro Gov’t et al.              Page 8
                        v. Hotels.com, L.P. et al.


“hotel” in a section completely separate from that granting the counties their taxing
authority, this observation is not persuasive as to the meaning of the statutory language
in question.

       Kentucky caselaw provides a modicum of guidance as to the proper interpretation
of the statute. Specifically, three Kentucky appellate cases have analyzed the transient
room tax at issue. In Second Street, the Kentucky Court of Appeals upheld the
constitutionality of the JLCMG ordinance, concluding that the avowed purpose of the
Enabling Acts provision—promoting convention and tourist activities—was
“sufficiently definite to circumscribe the permitted proper functions of the administrative
agency.” 445 S.W.2d at 713. Finding a reasonable basis for subjecting “hotels, motels
and the like” to the tax, the Court reasoned that there was a “definite correlation between
the purpose of the tax and the business of the selected taxpayer” because “hotels and
motels will specially benefit from the expenditure of this tax revenue.” Id. at 713-14.
Second Street’s analysis is of limited help on the issue before us, however, and at most
it reveals a preference for a narrow reading of the statute given the Court’s concern to
limit the imposition of the tax to a well-defined category of businesses.

       Two years later, the Kentucky Court of Appeals addressed a constitutional
challenge to a transient room tax imposed by the City of Lexington. The Court held that
there was no reasonable basis for singling out hotels and motels to pay the tax and
rejected the city’s justification for this categorization—that hotels and motels use city
services to a greater degree than other businesses—as unpersuasive. City of Lexington
v. Motel Developers, Inc., 465 S.W.2d 253, 258-59 (Ky. 1971). (Lexington’s tax
ordinances have since been amended to limit the use of the transient room tax to the
funding of convention and tourist activities.) As in Second Street, the Court repeatedly
referred to “hotels and motels” as well as “hotel and motel owners, and others similarly
engaged” when identifying the businesses subject to the tax. Id. at 254-55, 258-59.
Nevertheless, neither Second Street nor Motel Developers provide significant guidance
on the issue of how broadly to construe “like or similar accommodations businesses.”
Nos. 08-6302/6303        Louisville/Jefferson County Metro Gov’t et al.            Page 9
                         v. Hotels.com, L.P. et al.


        Lexington Relocation Services, LLC v. Lexington-Fayette Urban County
Government, No. 2003-CA-001593-MR, 2004 WL 1418184 (Ky. Ct. App. June 25,
2004), is more directly on point. In that case, Lexington Relocation Services (LRS)
leased or owned units in various Lexington apartment complexes and rented them, fully
furnished, to corporate employees who had relocated to Lexington or were on temporary
assignment there. Id. at *1. The court held that LRS qualified as an “accommodations
business” and was therefore subject to the transient room tax because a significant
fraction of its rentals “supply short-term accommodations suitable for visitors.” Id. at
*2. Moreover, the court noted that LRS held “itself out as operating, and does operate,”
in the short-term accommodations market. Id.

        Unlike LRS, the OTCs in the present case do not physically control or furnish
the rooms they advertise. The OTCs also do not “supply” or “provide” rooms to visitors
in the same manner that LRS does because they take no part in making the room
physically available. Thus, the Kentucky Court of Appeals’s interpretation in Lexington
Relocation Services provides the most support, by way of contrast, for the OTCs’
argument that they are not subject to the transient room tax.

        Overall, the wording of the ordinances, based on the language used and what
legislative intent is discernable, is inconclusive as to whether the OTCs constitute “like
or similar business accommodations.” Kentucky appellate caselaw, however, suggests
that they do not fall into this category.

        2.      Further interpretation

        Where legislation lacks plain meaning, Kentucky courts are instructed to “resort
to the canons or rules of construction.” King Drugs, Inc. v. Commonwealth, 250 S.W.3d
643, 645 (Ky. 2008). Having found no plain meaning of the statute in question, the
district court concluded that the principle of ejusdem generis should apply. The rule
states that

        where, in a statute, general words follow or precede a designation of
        particular subjects or classes of persons, the meaning of the general
Nos. 08-6302/6303         Louisville/Jefferson County Metro Gov’t et al.          Page 10
                          v. Hotels.com, L.P. et al.


       words ordinarily will be presumed to be restricted by the particular
       designation, and to include only things or persons of the same kind, class,
       or nature as those specifically enumerated, unless there is a clear
       manifestation of a contrary purpose.

Steinfeld v. Jefferson County Fiscal Court, 229 S.W.2d 319, 320 (Ky. 1950).

       Applying this principle, the district court determined that the phrase “like or
similar accommodations businesses” should be restricted by the four types of businesses
listed immediately prior to this phrase—i.e., motor courts, motels, hotels, and inns. See
Garcia v. Commonwealth, 185 S.W.3d 658, 664 (Ky. Ct. App. 2006) (applying the
principle of ejusdem generis to conclude that the term “other nuisance” is limited to
nuisances similar to noise and smoke because it was preceded by those words in the
statute). The district court reasoned that the OTCs are not like or similar to the listed
types of businesses because they “have neither ownership, nor physical control, of the
rooms they offer for rent.” According to the counties, this reading impermissibly adds
the terms “owner” and “physical establishment” to the ordinances. We are unpersuaded
by this argument, however, because the notions of ownership and physical control over
the rooms for rent are simply shared characteristics of motor courts, motels, hotels, and
inns. The district court thus properly applied the principle of ejusdem generis to the
ordinances in question.

       When faced with the same issue, the United States Court of Appeals for the
Fourth Circuit similarly interpreted a county ordinance in North Carolina as excluding
OTCs from the transient room tax. There, the ordinance at issue applied to “[o]perators
of hotels, motels, tourist homes, tourist camps, and similar type businesses.” Pitt County
v. Hotels.com, L.P., 553 F.3d 308, 313 (4th Cir. 2009) (alteration in original). The court
applied the principle of ejusdem generis to conclude that the OTCs were not “similar
type businesses” because the specifically enumerated businesses preceding the expansive
phrase were physical establishments that “provide lodging to patrons on site.” Id.
Because the OTCs did not physically provide the rooms, the court concluded that they
were outside the parameters of the statute. Id.
Nos. 08-6302/6303       Louisville/Jefferson County Metro Gov’t et al.           Page 11
                        v. Hotels.com, L.P. et al.


       The counties assert that this interpretation of the statute leads to the “absurd
result” that a county would receive less tax money if a customer books a hotel room
through an OTC than if the room is booked directly through a lodging establishment.
This potential loophole has been recognized by several district courts in other circuits.
See, e.g., City of Charleston v. Hotels.com, L.P., 586 F. Supp. 2d 538, 543 (D.S.C. 2008)
(observing that exempting OTCs from a similar tax “would lead to the absurd result of
a hotel being able to establish and operate a wholly-owned subsidiary corporation in
another jurisdiction which handled all of its reservations and booking, and be completely
immune from municipal accommodations taxes”), holding limited by Pitt County, 553
F.3d at 313; City of Fairview Heights v. Orbitz, Inc., No. 05-CV-840, 2006 WL 6319817
(S.D. Ill. July 12, 2006) (reasoning that a narrow interpretation of a tax ordinance
“would open up a potentially gaping loophole” whereby “a hotel operator could simply
incorporate a shell entity or make some other similar arrangement, rent the hotel rooms
to that entity for a nominal amount, and then re-rent the rooms to consumers, who would
be taxed only on the nominal sum paid by the side entity to the operator”).

       We reject the counties’ “absurdity” argument, however, in part because the
Kentucky General Assembly, not the court, is the proper entity to close any such
potential loophole. See Camera Ctr., Inc. v. Revenue Cabinet, 34 S.W.3d 39, 45 (Ky.
2000) (“[T]he legislature can easily choose to close a tax exemption window of
opportunity either in whole or in part.”). Furthermore, unlike in the hypotheticals set
forth above, none of the OTCs here are under common ownership with the physical
establishments that control the rooms.

       Moreover, the recent decision of the Georgia Supreme Court in Expedia, Inc. v.
City of Columbus, 681 S.E.2d 122 (Ga. 2009), is instructive by way of the contrasting
language in the city ordinance before the state court. The City of Columbus ordinance
assesses a tax on “the charge to the public” for a room, causing the Court to conclude
that because “Expedia is not the end-consumer, is not a member of the public at large,
and is not the occupant of the hotel room,” the tax targets the full rate paid by the
customer. Id. at 128. We agree with that reasoning, but the lack of equivalent language
Nos. 08-6302/6303       Louisville/Jefferson County Metro Gov’t et al.             Page 12
                        v. Hotels.com, L.P. et al.


in the ordinances before us leads to the opposite result. In other words, imposing the
transient room tax based on “the charge to the public” provides clarity that is sorely
lacking in the ordinances at hand.

       Finally, any doubt as to whether the OTCs are “like or similar accommodations
businesses” must be resolved in favor of the OTCs under Kentucky law. Kentucky’s
highest court has stated that

       [t]axing laws should be plain and precise, for they impose a burden upon
       the people. That imposition should be explicitly and distinctly revealed.
       If the Legislature fails so to express its intention and meaning, it is the
       function of the judiciary to construe the statute strictly and resolve doubts
       and ambiguities in favor of the taxpayer and against the taxing powers.

George v. Scent, 346 S.W.2d 784, 789 (Ky. 1961). “This is particularly so in the matter
of pointing out the subjects to be taxed.” Id. Because the counties’ interpretation of the
ordinances in question is at best doubtful, we are obligated under Kentucky law to
resolve the doubt “in favor of the taxpayer,” i.e., the OTCs.

D.     District court’s grant of the OTCs’ motion for reconsideration

       In addition to appealing the determination that the OTCs are not “like or similar
accommodations businesses,” LJCMG asserts that the district court had no proper basis
for granting the OTCs’ motion for reconsideration. But “courts will find justification for
reconsidering interlocutory orders whe[re] there is (1) an intervening change of
controlling law; (2) new evidence available; or (3) a need to correct a clear error or
prevent manifest injustice.” Rodriguez v. Tenn. Laborers Health & Welfare, 89 F.
App’x 949, 959 (6th Cir. 2004). In light of the foregoing analysis, the district court
properly concluded that it had committed a clear error of law when it failed to exempt
the OTCs from the transient room tax the first time around.              We are therefore
unpersuaded by LJCMG’s argument on this point.

       LJCMG also contends that the district court erred by making a factual finding
that the OTCs do not exercise physical control over the rooms they rent. By doing so,
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                        v. Hotels.com, L.P. et al.


LJCMG asserts, the court failed to resolve all factual disputes in LJCMG’s favor on a
motion to dismiss. See Great Lakes Steel, Div. of Nat’l Steel Corp. v. Deggendorf, 716
F.2d 1101, 1104-05 (6th Cir. 1983) (“A motion to dismiss . . . [for] failure to state a
claim upon which relief can be granted must be viewed in the light most favorable to the
party opposing the motion.”). In making this argument, LJCMG relies on City of San
Antonio v. Hotels.com, No. SA-06-CA-381-OG, 2007 WL 1541184 (W.D. Tex. March
20, 2007). The court in that case denied a motion to dismiss filed by the OTCs because
there was a factual dispute as to whether the OTCs exercised control over the rooms.
Id. at *3. But the court also noted that the city had alleged facts relating to the issue of
control. Id. In contrast, the counties here have not alleged that the OTCs have any
physical control over the rooms. There is accordingly no factual dispute to be resolved
in the counties’ favor. (We note, by the way, that a jury verdict was reached in October
2009 in the City of San Antonio case, with the jury concluding that, under the terms of
San Antonio’s tax ordinance, the OTCs exercise control over the hotel rooms they rent.
But that ordinance, because it imposes an excise tax on the price a transient pays to
occupy a hotel room, bears little resemblance to the ones at issue in the present case.)

                                   III. CONCLUSION

         For all of the reasons set forth above, we AFFIRM the judgment of the district
court.
