Cigarettes Cheaper! et al v. State Board of Equalization et al
Filing
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ORDER signed by Judge John A. Mendez on 6/21/11: The Motion to Dismiss brought by the California State Board of Equalization is GRANTED 13 . (Kaminski, H)
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KAMALA D. HARRIS
Attorney General of California
WILLIAM L. CARTER
Supervising Deputy Attorney General
JANE O'DONNELL, State Bar No. 100617
Deputy Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 322-0253
Fax: (916) 327-2247
E-mail: Jane.ODonnell@doj.ca.gov
Attorneys for Respondent
California State Board of Equalization
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CIGARETTES CHEAPER!, a California
corporation, and THE CUSTOMER
COMPANY, a California corporation,
Petitioners,
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Case No. 2:11-CV-00631-JAM-EFB
ORDER GRANTING THE CALIFORNIA
STATE BOARD OF EQUALIZATION’S
MOTION TO DISMISS
vs.
STATE BOARD OF EQUALIZATION, an
agency of the State of California, ALTRIA
GROUP, INC., a Virginia corporation, PHILIP
MORRIS, USA, and COSTCO WAREHOUSE
CORPORATION, a Washington corporation,
Hearing Date: June 15, 2011
Time: 9:30 a.m.
Courtroom: 6
Action Filed: January 18, 2011
Respondents.
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On June 15, 2011, the Motion to Dismiss pursuant to Federal Rules of Civil Procedure,
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Rules 12(b)(1) and 12(b)(6), brought by the California State Board of Equalization (“SBE”) in the
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above-entitled action was heard and considered by the Honorable John A. Mendez in Courtroom
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6 of the above-entitled court. Jane O’Donnell of the Office of the Attorney General of the State
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of California appeared on behalf of moving party, the SBE. William S. Bernheim of Bernheim,
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Gutierrez & McCready appeared on behalf of the Petitioners. Also appearing were Ann Marie
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Mortimer of Hunton & Williams LLP on behalf of respondent/defendant Philip Morris USA, Inc.
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ORDER GRANTING THE STATE BOARD OF EQUALIZATION’S MOTION TO DISMISS
(2:11-CV-00631-JAM-EFB)
PDF created with pdfFactory trial version www.pdffactory.com
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and Daveed Ari Schwartz of Locke Lord Bissell & Liddell LLP on behalf of
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respondent/defendant Costco Wholesale Corporation.
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The Court having considered the moving and reply papers submitted by the SBE and the
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opposition papers submitted by the Petitioners, and having heard the oral argument presented at
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the time of the hearing, and good cause appearing,
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IT IS HEREBY ORDERED AND ADJUDGED:
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1.
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grounds set forth in the Motion to Dismiss, to wit,
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That the Motion to Dismiss brought by the SBE is GRANTED on each of the
A. The SBE is immune from suit in federal court under the 11th Amendment of
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the United States Constitution;
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B. The Federal Tax Injunction Act independently bars jurisdiction in federal
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court;
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C. The Court declines jurisdiction under the principle of comity; and
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D. The claims asserted in Petitioners’ lawsuit are barred by the doctrine of res
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judicata based on the Sacramento County Superior Court rulings in Case Nos.
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34-2008-80000129-CU-WM-GDS (Cigarettes Cheaper! v. SBE) and
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34-2009-80000139-CU-WM-GDS (The Customer Company v. SBE).
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2.
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denies Petitioners leave to amend.
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IT IS SO ORDERED.
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The Court finds that any amendment would be futile and therefore
DATED: June 21, 2011
/s/ John A. Mendez_____________
The Honorable John A. Mendez
United States District Court Judge
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Approved as to Form:
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Bernheim, Gutierrez & McCready
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By: _________________________
William S. Bernheim
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ORDER GRANTING THE STATE BOARD OF EQUALIZATION’S MOTION TO DISMISS
(2:11-CV-00631-JAM-EFB)
PDF created with pdfFactory trial version www.pdffactory.com
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