    16-876-cv
    Piedmont Gardens LLC v. LeBlanc

                           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 Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 11th day of May, two thousand eighteen.

    PRESENT: JOHN M. WALKER, JR.,
             DENNIS JACOBS,
                             Circuit Judges,
             KATHERINE B. FORREST,*
                             District Judge.

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    Piedmont Gardens, LLC, on behalf of
    themselves and others similarly
    situated, Samuel Pollack, on behalf
    of themselves and others similarly
    situated, Back Bone, LLC, on behalf
    of themselves and others similarly
    situated, Barbara Yale, on behalf of
    themselves and others similarly
    situated,
              Plaintiffs-Appellants,

                 -v.-                                          16-876-cv



    * Judge Katherine B. Forrest, of the United States District
    Court for the Southern District of New York, sitting by
    designation.
                                              1
Michael LeBlanc, Frank Caruso, Karen
Mulcahy, City of Waterbury, and John
Does, 1-10,
         Defendants-Appellees.

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FOR PLAINTIFFS-APPELLANTS:       James Stedronsky, Esq.,
                                 Stedronsky & Meter, LLC,
                                 Litchfield, CT; David C.
                                 Yale, Esq., Hassett &
                                 George, P.C., Simsbury, CT.

FOR DEFENDANTS-APPELLEES:        Thomas G. Parisot (Tara L.
                                 Shaw, on the brief), Secor,
                                 Cassidy & McPartland, P.C.,
                                 Waterbury, CT.

     Appeal from the judgment of the United States District
Court for the District of Connecticut (Thompson, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that that the judgment of the district court is
AFFIRMED.

     Piedmont Gardens LCC and its co-plaintiffs appeal the
judgment of the United States District Court for the
District of Connecticut dismissing their request for
declaratory and injunctive relief as well as damages in
connection with Waterbury’s collection procedures for
delinquent property taxes. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     Plaintiffs, who are property owners in Waterbury,
allege that appellee Waterbury officials are acting in
contravention of Connecticut statutes and the city charter
by requiring delinquent taxpayers to pay unearned,
additional fees to local marshals. The present dispute
arises from the parties’ divergent interpretations of a
Connecticut statute that specifies which fees are owed by a
taxpayer. See Conn. Gen. Stat. §§ 12-162(b)(1), 12-162(c),



                             2
12-166, 52-261(a)(f).2 State law permits a state marshal or
constable to act as an agent of Waterbury for the purpose
of serving alias tax warrants to delinquent property
owners. See id. §§ 12-162(c), 52-261(a)(f). Marshals are
entitled to a fee of up to 15% of the tax liability in
compensation for their service. Id. Plaintiffs argue that
Connecticut law entitles the marshals to a fee only upon
(and after) physical collection of the delinquent municipal
taxes, and not as part of the tax payment itself, so that
the marshals are compensated by the city, rather than the
property owner. Defendants insist that the marshal fee
becomes part of the state tax owed by the property owner
when the alias tax warrant is issued.

     Plaintiffs sued in federal court, alleging that these
assessment and collection procedures violate their
constitutional rights. The complaint sought declaratory
relief, injunctive relief, and damages pursuant to 42
U.S.C. § 1983 and Conn. Gen. Stat. § 52-564. The
defendants moved to dismiss on the grounds that the
district court lacked jurisdiction under the Tax Injunction
Act (“TIA”), 28 U.S.C. § 1341, and the doctrine of comity.
The district court concluded that the suit was barred since
it concerned the collection of a state tax. On appeal from
the dismissal for lack of subject matter jurisdiction, “we
review factual findings for clear error and legal
conclusions de novo.” Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000).

     “A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district
court lacks the statutory or constitutional power to
adjudicate it.” Id.; see Nowak v. Ironworkers Local 6
Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). The TIA
deprives federal courts of jurisdiction over suits to
“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

2 Section 52-261 has recently been amended, and Section 52-
261(a)(6) is now codified at Section 52-261(a)(f). As
there is no substantive difference between these versions,
for the purposes of this order we refer to the current
version.
                             3
State.” 28 U.S.C. § 1341. “Collection” within the meaning
of the TIA refers to “the act of obtaining payment of taxes
due.” See Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124,
1130 (2015).

     The principle of comity operates more broadly than the
TIA. Comity reflects “a proper respect for state
functions,” including the collection of state taxes, and
prevents taxpayers from “invok[ing] federal judgments
without first permitting the State to rectify any alleged
impropriety.” Fair Assessment in Real Estate Ass’n v.
McNary, 454 U.S. 100, 112, 114 (1981). As with the TIA for
injunctive and declaratory relief, comity “bars federal
courts from granting damages relief” provided that “plain,
adequate, and complete” remedies exist at state law. Id.
at 107, 116; see also Levin v. Commerce Energy, Inc., 560
U.S. 413, 421-22 (2010); Long Island Lighting Co. v. Town
of Brookhaven, 889 F.2d 428, 431 (2d Cir. 1989).

     Plaintiffs challenge a specific tax collection
procedure employed by the town: the inclusion of an up to
15% marshal fee in the sum owed by a delinquent property
owner. We need not determine whether this challenge
enjoins, suspends, or restrains the collection of a state
tax within the meaning of the TIA, because comity is a more
embracive doctrine and offers a sufficient basis to affirm.
See Levin, 560 U.S. at 424, 432 (“Because we conclude that
the comity doctrine justifies dismissal of respondents’
federal-court action, we need not decide whether the TIA
would itself block the suit.”). Indeed, in seeking
certification to the Connecticut Supreme Court, Plaintiffs
admitted that comity applies to this case. See Appellants’
Reply Br. at 2-3.3



3 We previously declined the request to certify the
following question of state law to the Connecticut Supreme
Court: “Must municipal constables and state marshals
execute upon a tax warrant and collect a sum of money
(rather than simply serve the warrant) before they are
entitled to a fee under Connecticut General Statutes §§ 12-
162(b)(1) and 52-261(a)(6)?” Motion to Certify Question of
State Law, at 1.
                             4
     Regardless of whether the marshal’s fee is part of the
delinquent property tax owed by the taxpayer, this suit
seeks relief that “risk[s] disrupting state tax
administration.” Levin, 560 U.S. at 417. Dismissal is
therefore appropriate so long as there is an adequate state
law remedy. “A state remedy is plain, speedy and efficient
if it is procedurally adequate ... [a] state need only
provide a full hearing and judicial determination at which
a taxpayer may raise any and all constitutional objections
to the tax.” Long Island Lighting Co., 889 F.2d at 431
(quoting Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 512
(1981) (internal alterations omitted)). State remedies
that satisfy the TIA’s “plain, speedy, and efficient”
requirement will also satisfy the “plain, adequate, and
complete” requirement under the comity doctrine. See
Abuzaid v. Mattox, 726 F.3d 311, 316 (2d Cir. 2013)
(quoting Fair Assessment, 454 U.S. at 116 n.8).

     Plaintiffs fail to show how the Connecticut statutory
remedies identified by the District Court deprive them of a
full hearing and a judicial determination of their claims.
A Connecticut taxpayer may appeal an unlawful assessment of
property taxes and associated fees either prior to payment,
Conn. Gen. Stat. § 12-119, or after payment under protest
as a constitutional challenge to obtain a refund. Conn.
Gen. Stat. § 12-129 (providing recourse to “[a]ny person,
firm, [or] corporation who pays any property tax in excess
of the principal of such tax ... or fees pertaining to such
tax”). Furthermore, the Connecticut state constitution
offers a remedy for deprivation of constitutional rights
that is, for all relevant purposes, coextensive with 42
U.S.C. § 1983. See Roundhouse Const. Corp. v. Telesco
Masons Supplies Co., Inc., 170 Conn. 155, 157 (1976).
These options satisfy comity’s requirement of a plain,
adequate, and complete remedy.

     For the foregoing reasons, and finding no merit in the
Plaintiffs-Appellants’ other arguments, we hereby AFFIRM
the judgment of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK



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