                                                                        FILED
                          NOT FOR PUBLICATION                            DEC 26 2013

                                                                     MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JESSICA MAE MATHESON, DBA Jess’s               No. 12-35479
Wholesale, II,
                                               D.C. No. 3:11-cv-05946-RBL
             Plaintiff - Appellant,

  v.                                           MEMORANDUM*

LEE SMITH; DOYLE MCMINN, Agents
or Employees of the Washington State
Department of Revenue; JOHN OR JANE
DOE, Supervisor to Doyle McMinn;
DOES 2-6, Other Unknown Agents or
Employees of the Washington State
Department of Revenue; WASHINGTON
STATE LIQUOR CONTROL BOARD;
WASHINGTON STATE DEPARTMENT
OF REVENUE; STATE OF
WASHINGTON,

             Defendants - Appellees.


                  Appeal from the United States District Court
                    for the Western District of Washington
                  Ronald B. Leighton, District Judge, Presiding

                    Argued and Submitted December 6, 2013
                             Seattle, Washington


        *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: HAWKINS and TALLMAN, Circuit Judges, and WHYTE, Senior District
Judge.**

      Jessica Matheson (“Matheson”) appeals the subject matter jurisdiction dismissal

of her claims against the Washington Liquor Control Board, Department of Revenue,

and named and unnamed employees of this latter department (collectively, “the

State”), alleging the State’s assessment of taxes and penalties violated her

constitutional rights as a female Native American. She also appeals the district court’s

denial of leave to amend and supplement her complaint after the entry of final

judgment against her. We affirm.

      The district court properly determined that the Tax Injunction Act (“the Act”)

precludes federal court jurisdiction over Matheson’s claims. The Act instructs that

“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. This Act applies to claims for injunctive,

declaratory, and monetary relief, see Comenout v. State of Wash., 722 F.2d 574, 575-

77 (9th Cir. 1983); Dillon v. State of Mont., 634 F.2d 463, 464-65 (9th Cir. 1980), and

the constitutional nature of a taxpayer’s claims does not remove them from the Act’s

reach. See Amarok Corp. v. State of Nev., Dep’t of Taxation, 935 F.2d 1068, 1069-70


       **
         The Honorable Ronald M. Whyte, Senior United States District Judge for
the Northern District of California, sitting by designation.
                                           2
(9th Cir. 1991). However, claims that challenge the assessment of a charge that does

not constitute a “tax” under the Act are not subject to its bar. See Bidart Bros. v. Cal.

Apple Comm’n, 73 F.3d 925 (9th Cir.1996).

      All of Matheson’s claims are based on the State’s assessment of taxes, interest,

and penalties for her failure to pay taxes on cigarettes she purchased in Washington.

She seeks an injunction and declaratory judgment against the assessment, and

damages for the State’s alleged discriminatory enforcement of this tax scheme. The

constitutional nature of her claims does not remove them from the Act’s reach. See

Amarok Corp., 935 F.2d at 1069-70. The assessments—which are imposed by the

legislature upon a broad class of individuals and expended for the general

public—constitute “taxes” under the Act. See Qwest Corp. v. City of Surprise, 434

F.3d 1176, 1183 (9th Cir. 2006); Hexom v. Or. Dep’t of Transp., 177 F.3d 1134, 1139

(9th Cir. 1999); Bidart Bros., 73 F.3d at 931. Because Matheson’s claims seek to

interfere with the state’s assessment and collection of taxes, and the assessments she

challenges constitute “taxes,” the Act applies to all of her claims.

      Matheson argues that her status as an enrolled member of the Puyallup Tribe

excepts her claims from the Tax Injunction Act. While the Act does not bar suits

challenging state taxation brought by Native American tribes as such, see Moe v.

Confederated Salish & Kootenai Tribes, 425 U.S. 463, 471-75 (1976); Dillon, 634


                                           3
F.2d at 468-69, it does apply to claims brought by individual Native Americans, see

Amarok Corp., 935 F.2d at 1070. Matheson has brought this suit as an individual and

she therefore does not fall within an exception to the Act based on her status as a

member of the Puyallup Tribe.

      Matheson contends the Act should not preclude jurisdiction because she did not

have an adequate remedy in state court. The Act does not preclude federal jurisdiction

where a “plain, speedy and efficient remedy” is not available in state courts to

challenge the tax. 28 U.S.C. § 1341; see May Trucking Co. v. Or. Dep’t of Transp.,

388 F.3d 1261, 1262 (9th Cir. 2004). “[A] taxpayer has a ‘plain, speedy and efficient

remedy’ within the meaning of the [Act] so long as it may obtain a full and fair

hearing in the courts of the state whose tax that taxpayer challenges.” May Trucking,

388 F.3d at 1262. To meet this standard, there must be certainty that the state forum

is “empowered to consider claims that a tax is unlawful and to issue adequate relief.”

Dillon, 634 F.2d at 467-68. A state remedy “need not . . . be ‘the best remedy

available or even equal to or better than the remedy which might be available in the

federal courts.’” Mandel v. Hutchinson, 494 F.2d 364, 367 (9th Cir. 1974) (internal

citation omitted).

      Matheson had various “plain, speedy and efficient” state remedies available to

her to challenge the tax assessment and penalty. Washington statutes and case law


                                          4
clearly empower state courts to hear challenges—including those alleging

constitutional violations—to cigarette tax and penalty assessments. Matheson could

have brought her section 1983 claims, and sought an injunction based on her

constitutional claims, directly in state court. See Wash. Rev. Code § 82.32.150;

Comenout, 722 F.2d at 578 (citing Jacobsen v. City of Seattle, 658 P.2d 653 (Wash.

1983), in finding Washington state courts entertain section 1983 claims); Tyler v. Pipe

Indus., Inc. v. State Dep’t of Revenue, 638 P.2d 1213, 1215 (Wash. 1982) (en banc)

(holding that § 82.32.150 empowers Washington courts to issue injunctions against

tax collections when constitutional claims are raised). Matheson instead appealed the

tax assessment to the Washington Board of Tax Appeals. See Matheson v. Dep’t of

Revenue, No. 09-098, 2011 WL 823105 (Wash. Bd. Tax App. Jan. 21, 2011). She

appealed the Board’s ruling against her in state court.1



      1
         We grant the State’s motion to take judicial notice of these related state court
proceedings. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th
Cir. 2006) (The court “may take judicial notice of court filings and other matters of
public record.”). After a hearing, the Board determined Matheson had not proven that
she disposed of the cigarettes in a tax exempt manner. Matheson, 2011 WL 823105,
at *1. The superior court dismissed Matheson’s petition for review and the Court of
Appeals of the State of Washington affirmed this decision. Jessica Mae Matheson,
dba Jess’s Wholesale v. Wash. Dep’t of Revenue, No. 42723-1-II (Wash. Ct. App.
Sept. 17, 2012). In doing so, the court reviewed de novo Matheson’s constitutional
claims as possible grounds for an injunction and declined to review her claims for
other types of relief since she had not yet paid the assessment. Id. Matheson appealed
                                                                            (continued...)

                                           5
      That Matheson was required to pay the tax before bringing some of her claims

in state court does not render the state remedies inadequate under the Act, even if

Matheson cannot actually pay the assessment. See Rosewell v. LaSalle Nat’l Bank,

450 U.S. 503, 505, 528 (1981) (A state “remedy which requires property owners

contesting their property taxes to pay under protest and if successful obtain a refund

. . . is ‘a plain, speedy and efficient remedy’[.]”); Air Polynesia, Inc. v. Freitas, 742

F.2d 546, 548 (9th Cir. 1984) (stating that a “demonstrated inability to pay a tax does

not remove the jurisdictional bar of” the Act in a case where the plaintiff would have

to pay the assessment before challenging it). Furthermore, here, the state courts

reviewed her constitutional claims for purposes of potential injunctive relief. There

were therefore plain, speedy and efficient state remedies available to Matheson and

the Tax Injunction Act precludes federal court jurisdiction over her claims.

      Because the Tax Injunction Act does in fact deprive the district court of

jurisdiction, we do not reach the district court’s alternative Eleventh Amendment

ground for dismissal. See May Trucking Co., 388 F.3d at 1271 n.8 (“Because we

conclude that the [Tax Injunction Act] deprives the district court of subject matter



      1
          (...continued)
this adverse ruling all the way to the Supreme Court of the United States, which
denied her petition for writ of certiorari. Matheson v. Wash. Dep’t of Revenue, No.
13-135, 2013 WL 3939051 (Oct. 7, 2013).
                                           6
jurisdiction, we need not and do not reach the district court’s alternative grounds for

dismissal.”).

      Finally, Matheson argues the district court abused its discretion in denying her

motion to amend and supplement her complaint after the entry of final judgment

against her. A district court abuses its discretion by denying leave to amend a

complaint unless, among other factors, amendment would be futile or the party has

engaged in undue delay. See AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631,

636 (9th Cir. 2012); United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir.

2011). The district court did not abuse its discretion here because it correctly found

that Lindauer v. Rogers, 91 F.3d 1355 (9th Cir. 1996), prohibited it from entertaining

her motion. Under Lindauer, once final judgment has been entered, “a motion to

amend the complaint can only be entertained if the judgment is first reopened under

a motion brought under Rule 59 or 60.” Id. at 1357. Matheson had not filed a Rule

59 or 60 motion prior to filing her post-judgment motion to amend. Even if Lindauer

were somehow inapplicable, the court did not abuse its discretion since Matheson’s

amendment would be futile.

      AFFIRMED.




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