     07-3919-cv
     County of Nassau v. Hotels.com


 1                                UNITED STATES COURT OF APPEALS
 2
 3                                    FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                         August Term, 2008
 8
 9   (Argued: Jan. 22, 2009                                              Decided: August 11, 2009)
10
11                                       Docket No. 07-3919-cv
12
13
14
15
16
17      COUNTY OF NASSAU, NEW YORK, on behalf of itself and all others similarly situated,
18
19                                         Plaintiff-Appellant,
20
21                                                 -v.-
22
23    HOTELS.COM, LP; HOTELS.COM GP, LLC; HOTWIRE, INC.; TRIP NETWORK, INC.,
24   D/B/A CHEAPTICKETS.COM; CENDANT TRAVEL DISTRIBUTION SERVICES GROUP,
25   INC.; EXPEDIA, INC.; INTERNETWORK PUBLISHING CORP., D/B/A LODGING.COM;
26    LOWESTFARE.COM, INC.; MAUPINTOUR HOLDING, LLC; ORBITZ, INC.; ORBITZ,
27        LLC; PRICELINE.COM, INC.; SITE59.COM, LLC; TRAVELOCITY.COM, INC.;
28        TRAVELOCITY.COM, LP; TRAVELWEB, LLC; and TRAVELNOW.COM, INC,
29
30                                       Defendants-Appellees.
31
32
33
34
35   Before: WALKER and CALABRESI, Circuit Judges,*
36
37        Appeal from a judgment of the United States District Court for the Eastern District of
38   New York (Spatt, Judge). VACATED and REMANDED.
39
40


             *
1            The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the
2    Supreme Court on August 8, 2009. The two remaining members of the panel, who are in
3    agreement, have determined the matter. See 28 U.S.C. § 46(d); Local Rule 0.14(2); United States
4    v. Desimone, 140 F.3d 457 (2d Cir. 1998).

                                                    1
 1                                     PETER J. CLINES, for Lorna B. Goodman, Office of the
 2                                     Nassau County Attorney, Mineola, N.Y. (Robert S.
 3                                     Schachter, Joseph Lipofsky, Paul Kleidman, and David R.
 4                                     Kromm, Zwerling, Schachter & Zwerling, LLP, Garden
 5                                     City, N.Y., and New York, N.Y., on the brief), for Plaintiff-
 6                                     Appellant.
 7
 8                                     BRIAN S. STAGNER, Kelly Hart & Hallman, LLP, Fort
 9                                     Worth, Tex. (William M. Savino, Rivkin Radler LLP,
10                                     Uniondale, N.Y., on the brief), for Defendants-Appellees.
11
12                                     Chad Arnette, Kelly Hart & Hallman, LLP, Fort Worth,
13                                     Tex., for Defendants-Appellees Travelocity.com, Inc.,
14                                     Travelocity.com LP, and Site59.com LLC.
15
16                                     Paul E. Chronis and Elizabeth B. Herrington, McDermott
17                                     Will & Emery LLP, Chicago, Ill., for Defendants-Appellees
18                                     Orbitz, Inc., Orbitz, LLC, Internetwork Publishing Corp.
19                                     d/b/a Lodging.com, Trip Network, Inc. d/b/a
20                                     Cheaptickets.com, and Cendant Travel Distribution
21                                     Services Group, Inc.
22
23                                     James P. Karen and Deborah S. Sloan, Jones Day, Dallas,
24                                     Tex., for Defendants-Appellees Hotels.com, LP, Hotels.com
25                                     GP, LLC, Hotwire, Inc., Expedia, Inc., and
26                                     TravelNow.com, Inc.
27
28                                     Darrel J. Hieber, Skadden, Arps, Slate, Meagher & Flom
29                                     LLP, Los Angeles, Cal., and Karen L. Valihura, Skadden,
30                                     Arps, Slate, Meagher & Flom LLP, Wilmington, Del., for
31                                     Defendants-Appellees Priceline.com, Inc., Lowestfare.com,
32                                     Inc., and Travelweb LLC.
33
34                                     John D. Pernick, Bingham McCutchen LLP, San Francisco,
35                                     Cal., for Defendant-Appellee Maupintour Holding, LLC.
36
37
38
39
40
41   PER CURIAM:

42        Plaintiff-Appellant County of Nassau (the “County” or “Nassau”) appeals a decision of


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 1   the District Court dismissing its complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject

 2   matter jurisdiction. County of Nassau v. Hotels.com, LP, 594 F. Supp. 2d 251 (E.D.N.Y. 2007).

 3   The District Court based its decision on the failure of the County to allege that it complied with

 4   administrative processes for assessing and collecting taxes, thus exhausting its administrative

 5   remedies, prior to commencing its action to recover those taxes. See id. at 258-59. On appeal,

 6   the County argues that no requirement of exhaustion exists, that the District Court failed to defer

 7   to the County Treasurer’s interpretation of the County tax law at issue, and that exhaustion would

 8   in any event be futile.

 9          Without considering whether the County needed to exhaust administrative processes to

10   sustain jurisdiction, we remand for consideration of a different jurisdictional concern, which we

11   raised nostra sponte at oral argument: whether the complaint meets the requirements for class

12   certification under Fed. R. Civ. P. 23, without which both we and the District Court would lack

13   jurisdiction over the suit as presently constituted.

14                                             BACKGROUND

15          The County’s allegations are set out at length in the District Court’s opinion. See 594 F.

16   Supp. 2d at 252-54. Relevant to our purposes, the County alleges that the defendants are online

17   sellers and/or resellers of hotel rooms who negotiate discounted room rates with hotels and then

18   resell the rooms at higher retail rates. The State of New York authorizes the County to impose a

19   tax “upon persons occupying hotel or motel rooms in such county.” N.Y. Tax Law § 1202-q(1).

20   Pursuant to this authority, the County enacted the Nassau County Hotel and Motel Occupancy

21   Tax, which provided that the tax:

22          shall be paid by the person liable therefor to the owner of the hotel or motel room

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 1            occupied or to the person entitled to be paid the rent or charge for the hotel or motel room
 2            occupied for and on account of the County of Nassau imposing the tax and that such
 3            owner or person entitled to be paid the rent or charge shall be liable for the collection and
 4            payment of the tax. . . .
 5
 6   Nassau County Misc. Local Laws tit. 24 § 3(D) (“Nassau County Hotel Tax Law”), available at

 7   http://www.nassaucountyny.gov/website/GenericServices/docs/NassauCountyMiscLaws_Dec200

 8   8.pdf.

 9            The County alleges that the tax owed under this law is correctly calculated as a

10   percentage of the price that occupants pay to the defendant resellers, and that the defendants are

11   required to remit that amount to the County. It further alleges that, rather than paying this

12   amount, each defendant has been calculating its taxes based on the discounted price that it

13   negotiated with the hotels and accordingly remitting too little to the County.

14            In its complaint, the County sought jurisdiction under the Class Action Fairness Act of

15   2005 (“CAFA”), 28 U.S.C. § 1332(d)(2). It requested certification of a “state-wide class of all

16   New York cities, counties and other local governmental entities that have imposed hotel taxes

17   since March 1, 1995.” Compl. ¶ 34.

18                                               DISCUSSION

19            “‘It is a fundamental precept that federal courts are courts of limited jurisdiction’ and lack

20   the power to disregard such limits as have been imposed by the Constitution or Congress.”

21   Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir.

22   2009) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)). Because the

23   case presents no federal questions, the only statutory jurisdictional grant that might allow us to

24   consider the case with its current parties is CAFA, which grants district courts original



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 1   jurisdiction over class action suits on certain conditions, among them that “the number of

 2   members of all proposed plaintiff classes in the aggregate” be no less than one hundred. 28

 3   U.S.C. § 1332(d)(5)(B). Although the parties stipulated that the requirements of CAFA are met,

 4   we asked nostra sponte whether they are in fact satisfied, as the District Court lacked jurisdiction

 5   to hear the case if they were not. See Durant, Nichols, 565 F.3d at 62 (“If subject matter

 6   jurisdiction is lacking and no party has called the matter to the court’s attention, the court has the

 7   duty to dismiss the action sua sponte.”).

 8          There are substantial questions as to whether class certification would be appropriate in

 9   this case. To warrant certification of a federal class action lawsuit, plaintiffs must establish that:

10                  (1) the class is so numerous that joinder of all members is impracticable;
11                  (2) there are questions of law or fact common to the class;
12                  (3) the claims or defenses of the representative parties are typical of the claims or
13                  defenses of the class; and
14                  (4) the representative parties will fairly and adequately protect the interests of the
15                  class.
16
17   Fed. R. Civ. P. 23(a). The County brought its suit under Fed. R. Civ. P. 23(b)(3), see Compl. ¶

18   36, under which the district court must also satisfy itself, inter alia, that “questions of law or fact

19   common to class members predominate over any questions affecting only individual members,

20   and that a class action is superior to other available methods for fairly and efficiently adjudicating

21   the controversy.” Fed. R. Civ. P. 23(b)(3); see also Cent. States Se. & Sw. Areas Health &

22   Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 245 (2d Cir. 2007).

23          In its post-argument letter brief, Nassau estimates that over one hundred local

24   governments – counties, cities, towns, and villages – in the State of New York that it claims

25   imposed hotel taxes on the defendants. If true, this allegation would satisfy § 1332(d)(5)(B). But



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 1   the allegation raises the distinct possibility that questions common to the members of the class do

 2   not predominate over those affecting only individual members. Assuming that each locality

 3   imposes its hotel tax as Nassau does, under its own tax law, the cause of action for each member

 4   of the plaintiff class might well arise under a law unique to that class member. As a result,

 5   construction of at least some of these laws would likely require individualized inquiry even if the

 6   language of each hotel tax is broadly similar. Both the New York State statute pursuant to which

 7   Nassau’s hotel tax has been enacted and Nassau’s hotel tax law itself provide that the tax shall be

 8   collected and administered “by such means and in such manner as other taxes which are now

 9   collected and administered.” N.Y. Tax Law § 1202-q(2); Nassau County Hotel Tax Law § 3(B).

10   Accordingly, construction of Nassau’s hotel tax law is not resolved by the language of the law

11   itself, but requires inquiry into all of the other taxes administered and collected by the county.

12          This is not to say that Nassau faces an insurmountable burden in seeking class

13   certification. The various class members may collect and administer their taxes through

14   sufficiently similar “means and . . . manner[s]” to satisfy the certification requirement, and class

15   members may share significant common questions of fact regarding the way in which the

16   defendant companies conduct their businesses. This, however, is a question for the District

17   Court to consider in the first instance. Accordingly, we remand to the District Court to determine

18   whether class certification is appropriate.

19          We also note that both parties have suggested the possibility of dropping Site59.com, the

20   sole defendant with New York citizenship. If this were done, the District Court would seem to

21   have jurisdiction under 28 U.S.C. § 1332(a)(1), even if a class of fewer than one hundred

22   members were certified or if the County were to refile its complaint as an individual action.

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1   Should class certification prove inappropriate, the District Court should consider whether

2   Site59.com should be dropped from the action pursuant to Fed. R. Civ. P. 21.

3                                           CONCLUSION

4          For the foregoing reasons, we VACATE the judgment of the District Court and

5   REMAND the case for further proceedings consistent with this order. This panel retains

6   jurisdiction to decide any renewed appeal following the disposition of the remand.




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