9:13-cv-01776-SB

Date Filed 07/22/13

Entry Number 9

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA BEAUFORT DIVISION

KIGRE, INC.,

) CIVIL ACTION NUMBER: 9:13-cv-1776-SB ) Plaintiff, ) ) vs. ) Notice of Motion and Motion to Dismiss ) TOWN OF HILTON HEAD ISLAND, ) ) Defendant. ) ____________________________________)

COMES now the Defendant herein, the Town of Hilton Head Island (hereinafter referred to as Defendant), and moves on this day for an Order dismissing the present case pursuant to the basis set forth below and as further discussed in Defendants Memorandum submitted of an even date herewith. The claims of the Plaintiff herein, Kigre, Inc. (hereinafter referred to as Plaintiff), relate to the constitutionality and exercise of Defendants taxing authority. Respectfully, this Court lacks the ability to hear the above-captioned matter filed by Plaintiff for several reasons: I. This Court lacks subject matter jurisdiction because: a. This matter has already been tried to finality in the state court system of the State of South Carolina, Plaintiff should be denied its attempt to re-litigate the same issues as the state court heard, and all relief sought herein is barred by res judicata; i. Under the United States Constitution and 28 U.S.C. 1738 (2012), this Court should give full faith and credit to the final judgment of the State of South Carolina court system;
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b. Plaintiff should be collaterally estopped from arguing the same points of law and seeking a different determination on any pertinent facts as litigated in the state court action; i. Under the United States Constitution and 28 U.S.C. 1738 (2012), this Court should give full faith and credit to the final judgment of the State of South Carolina court system; c. The claims solely at issue in this case relate to the taxing authority of a political subdivision of the State of South Carolina and, as such, 28 U.S.C. 1341 bars this Courts inquiry into a state tax matter; i. Declaratory judgments are not available in state tax matters; d. This Court must abstain from hearing the matter under the Rooker-Feldman doctrine because it is, at its core, a challenge to a final state court judgment in federal court; e. This Court lacks diversity jurisdiction because the amount in controversy is not clearly articulated and all parties hereto are residents of the State of South Carolina; and f. This Court does not have jurisdiction to hear appeals from a state court; II. All necessary parties are not made a part of this suit as a challenge to Defendants taxing authority is a challenge to South Carolina law and the Municipal Association of South Carolinas Standard Industrial Classification establishing the tax rates Defendant charges Plaintiff; III. Plaintiff has failed to state grounds upon which relief may be granted because: a. Unjust enrichment is not a cause of action for collection of taxes; and

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b. Negligence and conversion actions are barred by the South Carolina Tort Claims Act, S.C. Code Ann. 15-78-10, et seq. (2012) as they relate to levying and collection of taxes, lawmaking, quasi-judicial action, and licensing powers; IV. V. Federal declaratory judgments are not available in state tax matter; and Plaintiff has failed to comply with Fed. R. Civ. P. 7.1 in failing to file a disclosure statement. For all of these reasons, this Court must dismiss the present matter. By way of a succinct summary, Plaintiff is challenging the taxing structure of Defendant after a South Carolina court has already ruled on such matter. Not only are declaratory judgments not available in such matters, but suit lawsuit runs afoul of strong federal precedent relating to the jurisdiction of federal courts to hear state tax matters and matters already decided by a state court. Specifically, this case is a de facto appeal of a state court judgment, and this Court lacks the authority to hear such matter. Therefore, this Court must dismiss this matter. Defendant is not required to consult with opposing counsel under Fed. R. Civ. P. 11 because this is a Fed. R. Civ. P. 12 motion to dismiss.

Respectfully submitted this 22nd day of July, 2013.

ALFORD LAW FIRM, L.L.C.

By: /s/Gregory M. Alford Gregory M. Alford (Attorney ID 6327) Post Office Drawer 8008 Hilton Head Island, SC 29938 (843) 842-5500 (843) 842-8400 (fax) gregg@alfordlawsc.com Attorneys for Defendant, Town of Hilton Head Island

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9:13-cv-01776-SB

Date Filed 07/22/13

Entry Number 9-1

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA BEAUFORT DIVISION

KIGRE, INC.,

) CIVIL ACTION NUMBER: 9:13-cv-1776-SB ) Plaintiff, ) ) vs. ) Memorandum in Support of Motion to ) Dismiss TOWN OF HILTON HEAD ISLAND, ) ) Defendant. ) ____________________________________) The claims of the Plaintiff herein, Kigre, Inc. (hereinafter referred to as Plaintiff), relate to the constitutionality and exercise of the taxing authority granted to the Town of Hilton Head Island (hereinafter referred to as Defendant). Respectfully, this Court lacks the ability to hear the above-captioned matter filed by Plaintiff for several reasons, including, but not limited to, the existence of jurisdictional impediments, principles of res judicata and collateral estoppel, abstention principles, failure to state a claim upon which relief may be granted, and for Plaintiffs failure to join an indispensable party. Therefore, Defendant seeks to have this matter dismissed pursuant to Fed. R. Civ. P. 12(b). HISTORY S.C. Code Ann. 5-7-30 allows municipalities to tax its residents in the form of fees on licenses to conduct business in that municipalitys jurisdiction. Such statute furthers the general welfare and security of its residents. The business license tax is based on the gross income of those conducting business within its jurisdictional limits. That statute reads, in pertinent part: Each municipality of the State may enact regulations, resolutions, and ordinances which appears to it necessary and proper for the security, general welfare, and convenience of the municipality or for preserving
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health, peace, order, and good government in it, including the authority to levy and collect taxes as otherwise authorized in this section, make assessments, and establish uniform service charges relating to them; levy a business license tax on gross income If the person or business taxed pays a business license tax to a county or to another municipality where the income is earned, the gross income for the purpose of computing the tax must be reduced by the amount of gross income taxed in the other county or municipality. S.C. Code Ann. 5-7-30 (2012). In this case, Defendant passed a business license ordinance (hereinafter referred to as the Fee) pursuant to S.C. Code Ann. 5-7-30. Such ordinance states that [e]very person engaged or intending to engage in any calling, business, occupation or profession listed in the rate classification index portion of this chapter, in whole or in part, within the limits of the town, is required to pay an annual license fee and obtain a business license as herein provided. Hilton Head Island Code, Section 10-1-10. The purpose of the Fee, in accordance with S.C. Code Ann. 5-7-30 (2012), is providing such regulation as may be required by the businesses subject thereto and for the purpose of raising revenue for the general fund Hilton Head Island Code, Section 10-1-30. The Fee is based upon a licensees gross income. Hilton Head Island Code, Section 101-40. Gross income is defined as: The total revenue of a business, received or accrued, for one fiscal year collected or to be collected by reason of the conduct of business within the town, excepting therefrom income from business done wholly outside of the town on which a license tax is paid to some other municipality or a county and fully reported to the town. Gross income from interstate commerce shall be included in the gross income for every business subject to a business license fee. The gross income for business license purposes shall conform to the gross income reported to the Internal Revenue Service, the South Carolina Department of Revenue and Taxation, or the South Carolina Insurance Commission... Hilton Head Island Code Section 10-1-20(3)

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That gross income is then multiplied by the rate set out in the rate classification index set out in Hilton Head Island Code Section 10-1-190. The Fee is therefore equal to a business rate classification multiplied by its gross income, save and except taxes paid to other counties or municipalities as required by S.C. Code Ann. 5-7-30 (2012). By way of a succinct history, Plaintiff paid the nominal base amount of the Fee for every year of its existence.1 Defendant filed a declaratory judgment action in 2006 asking a South Carolina trial court to declare the Fee valid and Plaintiffs defenses invalid.2 Plaintiff filed an Amended Answer and Counterclaim therein, a copy of which is attached hereto as Exhibit A. Plaintiff raised several defenses, counterclaims, and arguments in the state court pleadings3, and

Plaintiff has been operating within the limits of the Town of Hilton Head Island since 1986. Trial Transcript, vol. 2, p. 12 lines 14-20. 2 See Civil Action Number 2006-CP-07-00796 in the Court of Common Pleas for the Fourteenth Judicial Circuit of the State of South Carolina. 3 In its state court pleadings, Plaintiff raised the following arguments and counterclaims: Illegality of fees, penalties, costs, and other punitive measures (Answer and Counterclaim, 38); Interstate commerce arguments (Id. at 40) Federal Commerce Clause (Id. at 41); Defendant does not provide any services to Plaintiff (Id. at 42); Defendants tax is designed to punish, frustrate, intimidate, etc. Plaintiff (Id. at 45); Defendant does not apportion receipts of gross income (Id. at 48); The Fee violates the Commerce Clause (Id. at 50, 62); Declaratory judgment (Id. at 51-55); Standard Industrial Classification misapplication (Id. at 58-62, 71-81, 89-95, 97); Federal Taxing and Spending Clause (Id. at 62); Federal Equal Protection (Id. at 63, 99-105); Federal Due Process (Id. at 63, 93-98); South Carolina Constitution Equal Protection (Id. at 64) South Carolina Constitution Due Process (Id. at 64) South Carolina taxation powers (Id. at 65-67); S.C. Code Ann.( Id. at 51-55); Unjust enrichment (Id. at 82-88); conversion (Id. at 84-88).
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at trial. Plaintiff lost at trial, and the Fee was declared valid.4 A copy of the Amended Order Ending Case (hereinafter referred to as the Order) case is attached hereto as Exhibit B. The trial court found that [r]ather than seek to suspend the license or criminally prosecute Kigre for non-payment, the Town sought declaratory judgment to determine the validity of the defenses to payment asserted by Kigre. Order, Findings of Fact 7 (emphasis added); see also Id. at 5 (Defendant seeks declaratory judgment on the validity of Kigres claims.). Plaintiff appealed, and that appeal is now pending before the South Carolina Court of Appeals.5 ARGUMENT This Court must dismiss the present action because: (I) the matters raised and argued have already been litigated to finality between the parties in a State of South Carolina trial court; (II) it lacks the jurisdiction to hear the claims presented herein; (III) this case is missing several
4

The Honorable Marvin H. Dukes, III, Master in Equity for Beaufort County, South Carolina, and Special Circuit Judge for the Fourteenth Judicial Circuit, issued an Order Ending Case on February 7, 2012. However, Plaintiff moved to have that court reconsider the matter, and the Order to which Plaintiff ultimately appealed was issued September 19, 2012 (of record September 20, 2012). The Order specifically ruled that: Defendant is authorized to establish the Fee (Order, Conclusions of Law 1); Plaintiff has gross income (Id. at 3); The Fee applies to all income equally, regardless of source (Id. at 5); The fee does not need to determine a method for accounting for interstate commerce (Id. at 5); Plaintiffs gross income properly included in calculating the Fee (Id. at 5); Plaintiff fails to establish facts or cite law that Defendant needs to apportion (Id. at 7); Plaintiffs argument that Defendants SIC classification is improper fails (Id. at 8); Defendants SIC classification is reasonable (Id. at 8); Defendant provides important services to Plaintiff and need not prove it (Id. at 10); Defendant not estopped from collecting right amount of the Fee after previously collecting wrong amount (Id. at 12); Plaintiffs theories are incorrect (Order, Conclusions); The Fee is valid (Id.); Defendant can assess, levy, and collect the Fee (Id.); Plaintiff specifically barred from bringing or relying upon defenses raised in this case in other matter (Id.); 5 See Case Number 212-213239 pending before the South Carolina Court of Appeals.
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key parties; (IV) Plaintiff has failed to state relief for which this Court can grant redress; (V) Declaratory Judgment is inappropriate under the circumstances; and (VI) Plaintiff has failed to comply with certain Fed. R.s Civ. P., including Fed. R. Civ. P. 7.1. Therefore, this Court should dismiss this case in its entirety. I. Plaintiffs causes of action are barred by the doctrine of res judicata and collateral estoppel. The arguments, theories, and facts articulated in Plaintiffs Complaint in this matter are identical to the matter presently pending before the South Carolina Court of Appeals. 6 Compare Complaint with Footnote 3 and Order. In that case, trial court ruled in Defendants favor, and the Plaintiff herein appealed that courts decision to the South Carolina Court of Appeals. (a) The doctrine of res judicata operates as a bar to the present action.

The doctrine of res judicata bars lawsuits where there has been (1) a judgment on the merits in a prior suit resolving; (2) claims by the same parties or their privies; and (3) a subsequent suit based on the same cause of action. See Stanley v. Darlington County Sch. Dist., 879 F.Supp. 1341, 1367 (D.S.C. 1995), citing Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir.1990); see also Mont. v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). At the federal level, to determine whether a claim has been heard on the merits, and is therefore final, a federal judgment becomes final for appellate and claim preclusion purposes when the district court dissociates itself from the case, leaving nothing to be done at the court of first instance. Clay v. United States, 537 U.S. 522, 526, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003).

Causes of Action in the present Complaint are for Declaratory Relief, Unjust Enrichment, Negligence, Denial of Due Process, Denial of Equal Protection, Conversion, and Discrimination.
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Under the doctrine of res judicata, a litigant is barred from raising any issues which were adjudicated in the former suit and any issues which might have been raised in the former suit." South Carolina Public Interest Foundation v. Greenville County, 401 S.C. 377, 737 S.E.2d 502, 506 (S.C.App. 2012) (revg grant of summary judgment to plaintiff and dismissing case arising from same transaction or occurrence in second subsequent suit between same parties on res judicata grounds) (emphasis added), citing Judy v. Judy, 393 S.C. 160, 172, 712 S.E.2d 408, 414 (2011); see also Beall, 281 S.C. 363, n. 1, 315 S.E.2d 186, n. 1. (S.C.App. 1984) (final judgment on merits in prior action prevents same parties in second action based on same claim as to issues actually litigated and as to issues which might have been litigated). The claim is extinguished even when the plaintiff is "prepared in the second action (1) [t]o present evidence or grounds or theories of the case not presented in the first action, or (2) [t]o seek remedies or forms of relief not demanded in the first action." Foundation, 723 S.E.2d at 508 (emphasis in original in italics), citing Restatement (Second) of Judgments 25 (1982 & Supp.2012). Res judicata's fundamental purpose is to ensure that no one should be twice sued for the same cause of action." Foundation, 737 S.E.2d at 507, citing Yelsen Land Co. v. State, 397 S.C. 15, 22, 723 S.E.2d 592, 596 (2012). The doctrine [of res judicata] flows from the principle that public interest requires an end to litigation and no one should be sued twice for the same cause of action." Foundation, 737 S.E.2d at 507, citing Duckett v. Goforth, 374 S.C. 446, 464, 649 S.E.2d 72, 81 (Ct.App.2007) (emphasis in italics in original) (brackets in original). The Supreme Court states in Allen that a party failing to raise federal constitutional defenses in state court is barred from bringing new claims in federal court on arguments not presented in the state court trial. See Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d

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308 (1980) (dismissing case on collateral estoppel grounds); see also Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195 (1876). That Court reasoned [t]here is, in short, no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather not have been engaged at all. Allen, 449 U.S. at 104, 101 S.Ct. at 420. In determining whether causes of action arising in subsequent fiscal years are separately actionable, the fiscal years are irrelevant if the practices underlying the action are the same between those fiscal years. Foundation, 737 S.E.2d at 507. When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar ... the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. Foundation, 737 S.E.2d at 508 (emphasis in italics in original), citing Restatement (Second) of Judgments 24 (1982 & Supp.2012). What factual grouping

constitutes a "transaction", and what groupings constitute a "series", are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. Id. (emphasis in italics in original). "[F]or purposes of res judicata, "cause of action" is not the form of action in which a claim is asserted but, rather the cause for action, meaning the underlying facts combined with the law giving the party a right to a remedy of one form or another based thereon." Judy 393 S.C. at

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172, 712 S.E.2d at 414, citing Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 36, 512 S.E.2d 106, 110 (S.C. 1999) (quoting 50 C.J.S Judgment 749 (1997)). This Court was faced with a nearly procedurally identical situation in Sea Cabin.7 The plaintiff there sought the identical relief in a second matter sought in a case already heard by the circuit court of the State of South Carolina. See Sea Cabin on the Ocean Horizontal Prop. Regime, Inc. v. City of North Myrtle Beach, 828 F.Supp. 1241 (D.S.C. 1993). This Court determined that: To establish res judicata, three elements must be shown: (1) the identity of the parties; (2) identity of the subject matter; and (3) adjudication of the issue in the former suit. Sealy v. Dodge, 289 S.C. 543, 347 S.E.2d 504(1986). Res judicata also bars subsequent actions by the same parties when the claims arise out of the same transaction or occurrence that was the subject of a prior action between those parties. Sub-Zero Freezer Co. v. R.J. Clarkson Co., 417 S.E.2d 569 (S.C.1992). Riedman Corp. v. Greenville Steel Structures, Inc., 419 S.E.2d 217, 218 (S.C.1992). Sea Cabin, 828 F.Supp. at 1249. There, this Court found that a final decision by the South Carolina courts would be res judicata in this Court upon this issue and would preclude a finding by this Court on the constitutionality of the City's ordinance. Id. Most instructive on these principles, and a matter almost factually identical to the present action, is Foundation. See Foundation, supra. at 502.8 There, the court relied on the

Restatement (Second) of Judgments 24 & 25 and found the new case contained causes of action which could have been raised in the prior action. Foundation, 723 S.E.2d at 508

In Sea Cabin, this Court was asked to rule on an issue related to reconstruction of a pier in the City of North Myrtle Beach, and for which another action had currently been tried to finality and ruled upon. 8 In that case, the plaintiff brought one action in 1996 pursuant to a county appropriations law and lost. Id. at 503. The same party brought another action in 2006 on nearly identical grounds. Id. at 505. All parties stipulated it was the same parties though plaintiffs differed slightly between cases. Id. at 507.
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(emphasis in original in italics), citing Restatement (Second) of Judgments 25 (1982 & Supp.2012). Plaintiff seeks to re-litigate issues and claims on which it lost at the State court level. The trial court specifically concluded that Plaintiff shall hereinafter be barred from brining or relying upon the defense which have been ruled upon in this Order. See Order, Conclusions. There is not one ground in the present action that was not raised in the prior action. Even if the wording is not identical, the idea is the cause for action is the same. Judy 393 S.C. at 172, 712 S.E.2d at 414. The decision of the trial court between these parties was related to the same matter, differentiated only by the years for which Plaintiff seeks relief, and constitutes the same series of transactions. Foundation. supra. at 509. Plaintiffs cause for action has long been known. See Judy 393 S.C. at 172, 712 S.E.2d at 414). Plaintiff had the opportunity to, and did, in fact, raise counterclaims covering the same claims stated in the present case arising from the same conduct of Defendant. See Order; see also Allen, 449 U.S. at 104, 101 S.Ct. at 420. Plaintiff may not escape the doctrine of res judicata simply because it brought its claims in state trial court via counterclaim; such claims are compulsory by nature. Fed. R. Civ. P. 13(a). In the case already ruled upon, Plaintiff alleged that Defendant could not tax gross income. See Footnote 3; see also Order; see also Amended Answer and Counterclaim. In addition, Plaintiff also already challenged the applicability of Hilton Head Island Code Section 10-1-200 and challenged the classification structure. Id. Finally, Plaintiff already made Equal Protection arguments, alleged discrimination, opined that Defendant could not tax interstate commerce, made arguments as to apportionment, decried due process violations, and made other identical arguments. Id.

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It is contrary to public policy to require these same parties to litigate the same matter twice. Yelsen, 397 S.C. at 22, 723 S.E.2d at 596. Defendant, as well as the courts of this State and nation, has an interest in the finality of valid and final court rulings. Foundation, supra. at 507. Simply because the venue is not the one that a party would have chosen is irrelevant. See Allen, (no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather not have been engaged) Allen, 449 U.S. at 104, 101 S.Ct. at 420. No changes in fact have operated to allow Plaintiff a second chance to litigate these issues. See Commr of Internal Revenue Serv. v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948) (finding federal income tax cases not barred by collateral estoppel only if tax years are different and 1) matter not presented and determined in first action or 2) facts have changed). The Towns code has not changed since the last lawsuit, nor has Plaintiffs rate classification. Just as in Foundation, the fact that the issues arise in different calendar years does not preclude the application of res judicata, since they arise from the same practice and exercise of laws of Defendant as litigated in the original action. Foundation, supra., at 507. The same logic barring any affirmative claims applies to any defenses which Plaintiff tries to disguise as affirmative claims in its Complaint, including statute of limitations in Paragraph 88. Plaintiff should therefore be prevented from raising any defenses to payment of the levied taxes under the same theory. Therefore, res judicata, which relates to claim preclusion, bars the present action, and this Court must dismiss the same. The issues are the same, the parties are the same, and a state court has already issued a final ruling in the matter adverse to Plaintiff.

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(i)

This Court must accord the judgment of the Fourteenth Judicial Circuit for the State of South Carolina full faith and credit for any decision it renders.

Pursuant to 28 U.S.C. 1738, judicial proceedings shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U.S.C. 1738 (2012). Under the Full Faith and Credit Act, 28 U.S.C. 1738 (1994), state court judgments are to be given the same preclusive effect in federal court that they would have in the state in which judgment was rendered. Community Bank of Homestead v. Torcise, 162 F.3d 1084, n. 5 (11th Cir. 1998); see also Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (holding state court judgment has the same preclusive effect in federal court as in state court). When state courts act within their jurisdiction and give the parties a full and fair opportunity to litigate federal claims, a federal court is bound by the state decision absent a Congressional intent to the contrary. Allen, 449 U.S. at 103-04, 101 S.Ct. at 419-20; see also McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 505 (1st Cir. 1996). Here, as in Sea Cabin, this Court is being asked to determine the constitutionality of a municipal law that has already been litigated to finality in a trial court in the State of South Carolina. Like Sea Cabin, Migra, and Allen, the Court is being asked to render a decision on a federal constitutional issue that has already been determined by the courts of the State of South Carolina. Since those courts declined to rule on such matters, so must this Court. Absent an express Congressional intent to the contrary, state judicial proceedings are entitled to the same full faith and credit in every federal court as they have in the state court from which they are taken, and must be respected as final determinations on a matter. Sea

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Cabin, supra. at 1248; see also Allen, 449 U.S. at 103-04, 101 S.Ct. at 419-20; see also Torcise, 162 F.3d 1084, n. 5. Therefore, this Court must dismiss this matter. (b) Even if res judicata does not bar the present action, the doctrine of collateral estoppel operates as a bar to the present action.

Similar to the theory of res judicata, which bars the same causes of action, is the theory of collateral estoppel, or issue preclusion. Collateral estoppel, "forecloses the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate." South Carolinians for Responsible Govt v. Krawcheck, 854 F.Supp.2d 336, 344 (D.S.C. 2012), citing In re Microsoft Corp. Antitrust Litigation, 355 F.3d 322, 326 (4th Cir.2004). Once a party has fought out a matter in litigation with the other party, he cannot later renew the duel. Sunnen, 333 U.S. at 598-99, 68 S.Ct. at 71920. For the doctrine to apply, a party must demonstrate that "(1) the issue or fact is identical to the one previously litigated; (2) the issue or fact was actually resolved in the prior proceeding; (3) the issue or fact was critical and necessary to the judgment in the prior proceeding; (4) the judgment in the prior proceeding is final and valid; and (5) the party to be foreclosed by the prior resolution of the issue or fact had a full and fair opportunity to litigate the issue or fact in the prior proceeding." Krawcheck, 854 F.Supp.2d at 344, citing In re Microsoft, 355 F.3d at 326. As discussed above, both parties have had ample opportunity to litigate this issue. See Order. The issues and facts are identical as to almost every allegation in the Complaint herein except that they apply to different tax years. Id. The state trial court issued a final decision on matters of fact and law related to all arguments properly made before that court, and presently under appeal. Id. Finally, Plaintiff had every opportunity to raise every fact and issue raised in
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the present matter. There is not one single argument made in this case that was not or could not have been made in the prior case. If not a verbatim copy of the counterclaims and defenses in the other case, the content of the allegations in this matter is absolutely the same as the last case. Sunnen shows that claims such as Plaintiffs can only proceed if the circumstances have changed, but they have not. Plaintiff can cite to no change in circumstances as between the parties or no new or novel argument or issues that it could not have raised in the last matter. The law is the same, and the application of the law is the same. Even if it could, such changes would be purely state claims related to administrative procedures and remedies. Plaintiff should be collaterally estopped from proceeding in this matter. (i) This Court must accord the judgment of the Fourteenth Judicial Circuit for the State of South Carolina full faith and credit for any decision it renders.

Without restating the grounds set out herein in Paragraph I(a)(i), it is worth noting that full faith and credit is also accorded in the context of collateral estoppel. See Torcise, 162 F.3d 1084, n. 5. In according deference due a state court judgment, it is the standard of the original court that determines whether collateral estoppel applies. Id. at 1087. II. This matter should be dismissed because this Court does not have subject matter jurisdiction to hear this matter. The first duty of any federal court is to determine whether it has subject matter jurisdiction. See McCready v. White, 417 F.3d 700, 702 (7th Cir. 2005). In cases where a court lacks subject matter jurisdiction, it must dismiss the case entirely. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244, 163 L. Ed. 2d 1097 (2006). Jurisdiction is generally defined as the authority to decide a given case one way or the other. Without jurisdiction, a court cannot proceed at all in any cause; jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to a court is that of
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announcing the fact and dismissing the cause 32A Am. Jur. 2d Federal Courts 581 (2007) (footnotes omitted). Defendant would show that this Court cannot hear this case because it lacks jurisdiction over the subject matter of this case. (a) This Courts subject matter jurisdiction does not extend to questions involving the taxing authority of the States.

It is well-settled that [t]he 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 (2013) (emphasis added). Therefore, District Courts are not permitted to make decisions regarding state tax structures before allowing the state court to first address the issue. See Folio v. City of Clarksburg, W. Va., 134 F.3d 1211 (4th Cir. 1998) (dismissing case where plaintiff brought federal challenge to state taxing statute because court lacked subject matter jurisdiction under 28 U.S.C. 1341); see also Gray v. Owens, 413 F.Supp.2d 573 (D.Md. 2006) (finding that challenge to county tax ordinance involves a tax under state law where plain, speedy and efficient remedy may be had); see also Lawyer v. Hilton Head Public Service Dist. No. 1, 220 F.3d 298, 301-02 (4th Cir. 2000) (barring suits for declaratory relief in state tax cases). The Fourth Circuit Court of Appeals has ruled that challenges to local taxing ordinances in federal court should be dismissed, reasoning that 28 U.S.C. 1341: is a jurisdictional bar that is not subject to waiver, and the federal courts are duty-bound to investigate the application of the Tax Injunction Act regardless of whether the parties raise it as an issue. See Collins Holding Corp. v. Jasper County, South Carolina, 123 F.3d 797, 799 & n. 1 (4th Cir.1997). The Tax Injunction Act is undergirded by a policy of restraint in the federal courts, which, save limited exceptions, are "under an equitable duty to refrain from interfering with a State's collection of its revenue" in light of "the imperative need of a State to administer its own fiscal operations." Tully v. Griffin, Inc., 429 U.S. 68, 73, 97 S.Ct. 219, 222, 50 L.Ed.2d 227 (1976). Essentially, "the Act ... [is] first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere
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with so important a local concern as the collection of taxes." Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 522, 101 S.Ct. 1221, 1234, 67 L.Ed.2d 464 (1981). It is settled that the broad prophylactic terms of the Tax Injunction Act apply to declaratory as well as injunctive relief , see California v. Grace Brethren Church, 457 U.S. 393, 411, 102 S.Ct. 2498, 2509, 73 L.Ed.2d 93 (1982), and that local taxes fall within the ambit of the statute, see Collins Holding Corp., 123 F.3d at 799 n. 2. Moreover, the Tax Injunction Act applies to actions where, as here, a taxpayer seeks injunctive or declaratory relief under 1983. See Rosewell, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464. Folio, 134 F.3d at 1214 (emphasis added). The threshold for a plain, speedy and efficient remedy is simply whether a state court provides an opportunity to address the issue. Id. at 1214; see also Gray at 580-82. The relief sought by the taxpayer need not be certain, or even likely. Folio, 134 F.3d at 1215. The South Carolina code empowers Defendant to levy a tax on the gross income of businesses operating within its jurisdictional boundaries, which is precisely the tax Defendant levied: the Fee. S.C. Code Ann. 5-7-30 (2012). Any challenge to Defendants authority to tax is, by direct correlation, a challenge to the State of South Carolinas statutes. That makes the present matter a state tax issue, and jurisdiction is proper in the courts of the State of South Carolina, which court system is fully qualified and able to determine the constitutionality of its own laws, especially those related to taxation. 28 U.S.C 1341 (2012). A plain speedy and efficient remedy is available to Plaintiff in the courts of the State of South Carolina. Plaintiff and Defendant have done just that: sought a remedy in the courts of the State of South Carolina. Simply because Plaintiff lost should not permit it to forum shop. See Colo. River Consrvn Dist. v. United States, 424 U.S. 800, 96 S,Ct, 1236, 47 L.E.2d 483 (1976) (whether filing party is forum shopping a consideration in abstention analysis). Therefore, the case at issue primarily revolves around the assessment, levy, and collection of a tax under State law. 28 U.S.C 1341 (2012). As explained above, Plaintiffs

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challenge has already been made in state court, which has the authority to decide upon the taxs validity. At present, the South Carolina Court of Appeals is in the process of providing a plain, speedy and efficient remedy. As [t]he 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, this case must be dismissed. Id. (i) A federal cause of action for Declaratory Judgment not available in actions involving State tax matters.

Relief under a declaratory judgment cause of action is normally unavailable under Fed. R. Civ. P. 57 and 28 U.S.C 2201-02 for state tax matters. See Fed. R. Civ. P 57 advisory committees note (1937); see also Great Lakes Dredge & Dock Co. v. Huffman, La. 1943, S.Ct. 1070, 319 U.S. 293, 298, 87 L.Ed. 1407 (stating [i]t is in the public interest that federal courts of equity should exercise their discretionary power to grant or withhold relief so as to avoid needless obstruction of the domestic policy of the states); see also Spector Motor Serv. v. McLaughlin, Conn., 65 S.Ct. 152, 323 U.S. 101, 89 L.Ed. 101 (1944). In addition, all parties having an interest therein or adversely affected must be made parties or be cited. See Fed. R. Civ. P. 57 advisory committees note (1937). As discussed further below, the fact that this case challenges the constitutionality of the Fee is an indirect, but very real, challenge to the State of South Carolina and the rate structure the Municipal Association of South Carolina endorsed when the Fee was created. Therefore, both of those parties are necessary to fully adjudicate the rights of the parties herein. (b) The doctrine of abstention should prevent this Court from hearing a matter already pending before the South Carolina Court of Appeals on appeal of a final judgment from a trial court.

The doctrine of abstention covers scenarios in which a federal court must abstain from hearing matters concurrently with a state court. See Younger v. Harris, 401 U.S. 37, 91 S.Ct.
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756, L.E.2d 669 (1971); see also Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.3d 482 (1975) (vacating and remanding declaration of statutes unconstitutionality and grant of injunctive relief without first conducting Younger analysis to determine whether to proceed to the merits). Since the beginning of this country's history, Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts. Younger, 401 U.S. at 43. The Rooker-Feldman abstention doctrine is invoked when there has been a final adjudication in state court, followed by a new action in federal district court. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); see also District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.E.2d 206 (1983). Application of the doctrine is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 281, 125 S.Ct. 1517, 161 L.E.2d 454 (2005) (federal case filed not to challenge the state court, to preserve federal claims in the event matter was disposed on state law grounds, like statute of limitations, and no final decision of state court, Rooker-Feldman doctrine inapplicable) (emphasis added). Exxon goes on to explain: Rooker and Feldman exhibit the limited circumstances in which this Court's appellate jurisdiction over state-court judgments, 1257, precludes a federal district court from exercising subject-matter jurisdiction in an action it would otherwise be empowered to adjudicate under a congressional grant of authority. In both cases, the plaintiffs, alleging federal-question jurisdiction, called upon the District Court to overturn an injurious state-court judgment. Because 1257, as long interpreted, vests authority to review a state-court judgment solely in this Court, e.g.,
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Feldman, 460 U.S. at 476, the District Courts lacked subject-matter jurisdiction, see, e.g., Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 644, n. 3. When there is parallel state and federal litigation, Rooker-Feldman is not triggered simply by the entry of judgment in state court. See, e.g., McClellan v. Carland, 217 U.S. 268, 282. Id. at 281-82. The United States court of Appeals, Fourth Circuit has applied the Rooker-Feldman doctrine in a number of circumstances. See Patterson v. Goudelock, 062911 SCDC, 3:10-3019MBS (D.S.C. decided June 29, 2011); see also Patterson v. Funderburk, 061010 SCDC, 0:100676 (D.S.C. decided June 10, 2010). Longstanding precedents preclude the United States District Court for the District of South Carolina from reviewing the findings or rulings made by state court judges. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983), where the Supreme Court of the United States held that a federal district court lacks authority to review final determinations of state or local courts because such review can only be conducted by the Supreme Court of the United States under 28 U.S.C. 1257. See also Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). This prohibition on review of state court proceedings or judgments by federal district courts is commonly referred to as the RookerFeldman doctrine or the Feldman-Rooker doctrine. See, e.g., Ivy Club v. Edwards, 943 F.2d 270, 284 (3rd Cir. 1991). The RookerFeldman doctrine applies even when a challenge to a state court decision concerns a federal constitutional issue. District of Columbia Court of Appeals v. Feldman, supra, 460 U.S. at 484-486, and Arthur v. Supreme Court of Iowa, 709 F.Supp. 157, 160 (S.D.Iowa 1989). The Rooker-Feldman doctrine also applies even if the state court litigation has not reached a State's highest court. Worldwide Church of God v. McNair, 805 F.2d 888, 893 & nn. 3-4 (9th Cir. 1986). See also 28 U.S.C. 1738 (federal court must accord full faith and credit to state court judgment); and Robart Wood & Wire Products v. Namaco Industries, Inc., 797 F.2d 176, 178 (4th Cir. 1986). Thus, the plaintiff may not use a civil rights action to challenge the determinations or rulings of state courts, such as the Probate Court for Lexington County. See Anderson v. Colorado, 793 F.2d 262, 263 (10th Cir. 1986)("[I]t is well settled that federal district courts are without authority to review state court judgments where the relief sought is in the nature of appellate review."); and Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986), where a pro se plaintiff brought a 1983 action against his ex-wife, her attorney, and the judge who presided over the divorce action. The United States Court of Appeals for the Fifth Circuit
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held that characterization of a suit as a civil rights action is ineffective to defeat the well-settled rule that litigants may not obtain review of state court actions by filing complaints in lower federal courts "cast in the form" of civil rights suits. See also Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981); and Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587-588 & nn. 2-4 (4th Cir. 1969)(holding that federal district courts and United States Courts of Appeals have no appellate or supervisory authority over state courts). Accord Hagerty v. Succession of Clement, 749 F.2d 217, 219-220 (5th Cir. 1984)(collecting cases); Kansas Association of Public Employees v. Kansas, 737 F.Supp. 1153, 1154 (D. Kan. 1990). Skelton v. Eckstrom, 071312 SCDC, 3:12-1891 MBS-JDA (D.S.C. decided June 13, 2012) (emphasis added). Less than one year ago, as in Skelton, this Court dismissed a case under the RookerFeldman doctrine in Orr. Orr v. Resi Whole Loan IV, LLC, 080312 SCDC, 9:12-1706 SB-BM (D.S.C. decided August 3, 2012). To the extent Plaintiff claims he was injured by alleged erroneous proceedings and rulings made in the Beaufort County Fourteenth Judicial Court of Common Pleas of the State of South Carolina, such rulings cannot be reviewed or set aside by the United States District Court for the District of South Carolina. See Rooker, 263 U.S. 413; Feldman, 460 U.S. 462. This prohibition on review of state court orders by federal district courts is implicated when to rule in favor of the plaintiff on his claims in connection with state court proceedings would, necessarily, require the federal court to overrule (or otherwise find invalid) various orders and rulings made in the state court. Such a result is prohibited under the Rooker-Feldman Doctrine. See Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293-94 (2005); Davani v. Va. Dep't of Transport., 434 F.3d 712, 719-20 (4th Cir.2006); Chapman v. South Carolina Dept. of Corrections , 2012 WL 1895932, at *5 (D.S.C. May 1, 2012). Orr, supra. (emphasis added) This case meets every criteria of the Rooker-Feldman doctrine. The actual injury of which Plaintiff complains is Defendants continued mandatory exercise of its taxing power, which the trial court ruled was permissible before the instant action was ever filed. Therefore, Plaintiffs alleged actual injury is from a state court-ordered judgment: the Order itself. See Exxon 544 U.S. at 293-94.
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Federal district courts lacks authority to review final determinations of state or local courts because only the Supreme Court of the United States can do so under 28 U.S.C. 1257. That this matter contains federal constitutional issues and not a state claim has no bearing on the issue. See Feldman, supra.; see also 28 U.S.C. 1738 (2012). Should Defendant elect not to enforce such valid law against this Plaintiff, it would face equal protection and other challenges from other citizens seeking to force Defendant to apply this law to Plaintiff. Therefore, Plaintiff is alleging actual injury from the trial court ruling. Though Plaintiff has not expressly challenged the judgment of the State court decision in so many words, it has challenged each and every ground upon which it rests, and seeks a determination directly counter to that of the State Court. Plaintiff has set forth no new facts or an independent ground not barred by res judicata. Exxon, at 282, 291-93. To go one step further, this case is essentially past the factual scenario in most RookerFeldman analyses. In this case, we already have a final decision by a South Carolina court, and such would render the Rooker-Feldman doctrine more applicable. (i) A cause of action for Declaratory Judgment not available in actions involving final state judgments.

A district judge may defer to a state forum where the matter has already been decided with finality. See Geni-Chlor Intern., Inc., v. Multisonics Dev. Corp., 580 F.2d 981 (9th Cir. 1998). This case is an example of forum shopping, and should be discouraged. See Colo. River, supra..; see also BASF Corp. v. Symington, 50 F.3d 555, 558-59 (8th Cir. 1995) (discouraging forum shopping in declaratory judgment action). Therefore, Plaintiffs forum-shopping should be discouraged by this Court. It is akin to a post hoc removal action.

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(c)

This court lacks diversity jurisdiction, and should dismiss this case accordingly.

Plaintiff alleges that this Court has diversity jurisdiction to hear this matter. However, 28 U.S.C. 1332 states this Court has original jurisdiction only if the amount in controversy, $75,000, is met. 28 U.S.C. 1332 (2012). Diversity also requires that citizens be of different states. For the purposes of

determining diversity jurisdiction, a corporation shall be deemed a citizen of every State where it has its principal place of business. 28 U.S.C. 1332 (2012). If a corporation is a citizen of more than one state, the opposing party needs to be diverse from every state of citizenship of the opposing party. See Hall v. Rental Associates, Inc., 833 F.2d. 370 (D.C. Cir. 1987). This Court has adopted the following analysis: A corporation is a citizen of the state where it is incorporated and has its principal place of business. 28 U.S.C. 1332(c)(1). In the face of "divergent and increasingly complex interpretations" by the Courts of Appeals of the statutory phrase "principal place of business, " the Supreme Court in Hertz Corporation v. Friend, 130 S.Ct. 1181 (2010), concluded that the phrase "is best read as referring to the place where a corporation's officers direct, control, and coordinate the corporation's activities"; the "nerve center, " which will "normally be the place where the corporation maintains its headquarters-provided that the headquarters is the actual center of direction, control, and coordination... not simply an office where the corporation holds its board meetings." Id. at 1192. Jennings v. HCB ManorCare, Inc., 100312, 2:12-cv-01397-PMD (D.S.C. decided October 3, 2012) In this case, while Plaintiff is organized in the State of Ohio, its principal place of business is in Defendants jurisdiction. Such principal place of business is its nerve center, and is located in the State of South Carolina. Therefore, it is a citizen of the State of South Carolina, and diversity jurisdiction is destroyed. In addition, Plaintiff alleges only $85,406.77 in damages. Unless Plaintiffs position is that it owes no taxes at all to Defendant, this position fails to meet the amount in controversy.
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Surely Defendant has the right to tax Plaintiff $10,000 for the crucial support services (fire, police, emergency services, roads, etc.) it provides. It is worth noting that Plaintiff continually violates Defendants taxing authority by not providing records to determine accurately what is owed, and Plaintiff should be required to prove its actual income for tax purposes so the amount in controversy can be fully settled. (d) This court lacks jurisdiction to act as an appellate court for final state judgments.

Plaintiff, if it possesses the diversity jurisdiction it claims, could have sought removal of this case at the early stages from the state court action. Only after it has exhausted all appeals in the State of South Carolina may it proceed to have the decision of the States courts reviewed by the Supreme Court of the United States of America. 28 U.S.C. 1257 (2012). By failing to do so, it has elected to proceed in State court. Respectfully, this Court has no appellate jurisdiction of a State court matter. As if this alone were not enough, Colorado River sets forth comity grounds for extension designed, in part, to reduce judicial waste and inefficiency. See Colo. River, supra. The filing of this case is basically an attempt to remove the matter to federal court after Plaintiff decided not to remove the matter and proceed in state court. III. This matter should be dismissed because necessary parties with a vital interest in the outcome of this case are not parties hereto. Parties with an interest in the case to be joined as parties. Fed. R. Civ. P. 19(a)(1)(B). The policy is one designed to protect those parties from duplicative litigation and inconsistent judicial decisions. See Hammond v. Clayton, 83 F.3d 191, 195 (7th Cir. 1995). As discussed above, both the Municipal Association of South Carolina and the State of South Carolina have an interest in this case. The State of South Carolina has an interest because Defendants actions are completely in line with an empowering statute. If the validity of its statutes is questioned, a

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decision herein would affect every municipality and county in the State of South Carolina, thereby requiring legislative changes. The State of South Carolina could also be subject to duplicative or inconsistent decisions if sued by others. In addition, the Municipal Association of South Carolina is the body that approves and sanctions the Standard Industrial Classifications which Plaintiff challenges. These are nation-wide classifications, and have a far-reaching affect. IV. This matter should be dismissed because Plaintiff has failed to state facts upon which relief may be granted. Plaintiff states several causes of action upon which relief may not be granted. Assuming the constitutional claims are not barred by Rooker-Feldman, collateral estoppel, and res judicata, Plaintiff complains of negligence, unjust enrichment, and conversion, all of which must be dismissed for failing to state a cause of action upon which relief may be granted. (a) There is no cause of action for unjust enrichment, and such must be dismissed or struck.

Unjust enrichment is a quasi-contractual remedy sounding in equity. Payment of taxes cannot be grounds for a claim of unjust enrichment when paid voluntarily. enrichment claim is just a flawed reiteration of all other causes of action. (b) The South Carolina Tort Claims Act excepts Defendant from liability for negligence or conversion claims, and such must be dismissed or struck. The unjust

The South Carolina Tort Claims Act is designed to except the State and its political subdivisions from liability from certain claims sounding in tort. S.C. Code Ann. 15-78-10, et seq. (2012). That statute defines a political subdivision as the counties, municipalities 1578-30(h) (2012). The Tort Claims Act applies to all torts. S.C. Code Ann. 15-78-20(b) (2012). The South Carolina legislature specifically excepts from tort claims legislative, judicial, or quasi-judicial action or inaction. S.C. Code Ann. 15-78-60(1) (2012). It also excepts from liability adoption, enforcement, or compliance with any law or failure to adopt or enforce any
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law, whether valid or invalid, including, but not limited to, any charter, provision, ordinance, resolution, rule, regulation, or written policies. S.C. Code Ann. 15-78-60(4) (2012). In

addition, it excepts it from liability for assessment or collection of taxes or special assessments or enforcement of tax laws. S.C. Code Ann. 15-78-60(11) (2012). Finally, covered entities are protected in their licensing powers or functions including, but not limited to, the issuance, denial, suspension, renewal, or revocation of or failure or refusal to issue, deny, suspend, renew, or revoke any permit, license, certificate, approval, registration, order, or similar authority except when the power or function is exercised in a grossly negligent manner. S.C. Code Ann. 15-7860(12) (2012). Since Defendant is a political subdivision of the State of South Carolina, it is protected by the Tort Claims Act. When collecting a tax, it is operating in a quasi-judicial fashion, and therefore exempt from tort liability. By adopting and enforcing a statute, even if ultimately found invalid, Defendant is immune from liability. Finally, and most specifically, Defendant is immune from liability for assessing and collecting taxes. While Plaintiff seems to claim that we are holding revocation of a business license over its head, Defendant is protected in its licensing powers as well. Therefore, the claims sounding in negligence and conversion must be dismissed because Defendant is a protected political subdivision is carrying out its taxing powers in the same fashion as against this Plaintiff as it does against other taxpayers and business licensees in Defendants jurisdiction. It is worth noting that the conversion fails on the elements as well, since Plaintiff voluntarily paid the amounts in question to Defendant. Just because it believed it should get the money back does not mean it should. In conclusion, Defendant is immune from liability for the tort claims in this case, and the same should be dismissed.

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V.

This matter should be dismissed because Declaratory Judgments are not applicable in this matter. See arguments set out above in section and II(a)(i) and (b)(i).

VI.

This matter should be dismissed because Plaintiff did not comply with local rule. According to Fed. R. Civ. P. 7.1, a nongovernmental corporate party must file a

disclosure statement identifying any parent corporation or publicly-held corporation owning 10% or more of its stock. Fed. R. Civ. P. 7.1. Dismissal is available for non-compliance with this rule. See Medmarc Cas. Ins. Co. v. Sterling & Dowling PC, 2010 WL 3747754 (S.D.Ill. decided September 20, 2010). Accordingly, this Court should dismiss this matter or, in the alternative, force compliance with Fed. R. Civ. P. 7.1. CONCLUSION This matter should be dismissed on res judicata, collateral estoppel, subject matter jurisdiction, lacks diversity jurisdiction, Full Faith and Credit deference, because declaratory judgments do not apply in these circumstances, several causes of action raised do not afford relief, this action is forum-shopping, and is a clumsy attempt at a post hoc removal motion. This action is a not-so-subtle attempt to have this Court re-try an issue already decided at the state court level. The issues are the same, the parties are the same, and the Order from the state court was a final order. Federal jurisdictional mandates and precedents prohibit this Court from sitting in review of final state court actions. In addition, the Municipal Association of South Carolina and the State of South Carolina are necessary parties to this case that are not parties at present. Once Plaintiff elected not to attempt removal of the matter in the state court case and fight it out in state court, it waived any right to further litigate the claims in this matter. In the

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alternative, the State of South Carolina has exclusive jurisdiction when its own taxing structure is challenged. Any remaining issues are not federal question issues, and should be left to the state court. Plaintiffs only option is to complete the appellate process in the State of South Carolina and, if still desiring a more favorable ruling, to then challenge the Order before the Supreme Court of the United States of America. Accordingly, this matter must be dismissed.

Respectfully submitted, ALFORD LAW FIRM, L.L.C.

By: /s/Gregory M. Alford Gregory M. Alford (Attorney ID 6327) Post Office Drawer 8008 Hilton Head Island, SC 29938 (843) 842-5500 (843) 842-8400 (fax) gregg@alfordlawsc.com Attorneys for Defendant, Town of Hilton Head Island Hilton Head Island, Beaufort County, South Carolina, This 22nd Day of July, 2013.

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