United States District Court, E.D. New York
SUSAN KUPFERSTEIN, Individually and On Behalf of All Others Similarly Situated, Plaintiffs,
THE TJX COMPANIES, INC., Defendant.
OPINION AND ORDER
NINAGERSG, United States District Judge
Susan Kupferstein, asserting diversity jurisdiction under the
Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d),
brings this putative class action, alleging a single claim
against Defendant The TJX Companies, Inc. ("TJX")
for deceptive and fraudulent business practices under New
York General Business Law § 349. Plaintiff seeks
injunctive relief, actual damages, statutory damages, costs,
and reasonable attorney's fees. Defendant has moved to
dismiss plaintiffs amended complaint with prejudice pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure for
lack of subject matter jurisdiction and Rule 12(b)(6) for
failure to state a claim. For the reasons set forth below,
defendant's motion to dismiss is granted for failure to
state a claim.
is a citizen of New York. Am. TJX is a Delaware corporation
with its principal place of business in Massachusetts. TJX
does business as TJ Maxx, Marshalls, and HomeGoods. Its
customers can register for membership accounts through the
TJX Rewards program. TJX then issues TJX Rewards
Certificates, or coupons, to members who have accumulated
qualifying purchases. Members can use these coupons to
purchase products at TJ Maxx, Marshalls, and HomeGoods
stores. Plaintiff alleges in her amended complaint that, in
April or May of 2015, TJX issued her a coupon in the amount
of $10. On May 6, 2015, she made a purchase at a Marshalls
store in New York using her $10 coupon. Because she used a
coupon, plaintiff alleges, TJX charged her "an
undisclosed fee of $1.60, designated as a 'sales tax,
' calculated on the full amount of the purchase, before
deducting the amount of the coupon." As a result, she
did not receive the full benefit of her coupon as advertised,
but rather $10 minus the amount of the fee.
October 13, 2015, plaintiff originally filed this lawsuit
seeking to recover "overcharges of sales tax" by
TJX. In her original complaint, plaintiff explained that, on
May 6, 2015, she made a purchase at a Marshalls store in New
York for $17.98 of taxable items using her $10 coupon. After
applying the coupon, the purchase came out to $7.98. New York
law requires retailers to calculate sales taxes on the
discounted price of a purchase. TJX, however, calculated the
tax on the full amount of plaintiff s purchase before
deducting the discount. As a result, TJX charged plaintiff
$1.60 in sales taxes - $0.90 more than the $0.70 that TJX was
authorized to collect by New York law. With her complaint,
she included the sales receipt for her purchase, which states
that plaintiff was charged $1.60 in sales tax.
a letter requesting a pre-motion conference, argued that
plaintiffs suit is barred by New York law because, under New
York Tax Law §§ 1139-40, there is an exclusive
administrative remedy for taxpayers seeking a refund of any
tax that was "erroneously, illegally or
unconstitutionally collected or paid, " requiring
plaintiff to submit her claim to the State Tax Commission.
Alerted to this provision of New York tax law, plaintiff
amended her complaint in a seeming effort to sidestep this
exclusive administrative remedy under the New York tax law.
Plaintiff changed the way she described the same charge by
TJX, so that instead of a sales tax overcharge, her amended
complaint characterizes the charge, as explained above, as
"an undisclosed fee of $1.60, designated as a 'sales
tax.'" Furthermore, she omitted any mention in her
amended complaint of the proper way to calculate sales taxes
under New York law or of the allegedly correct amount of
sales tax of $0.70 that TJX was authorized to collect. She
also neglected to include her sales receipt, which clearly
marked the $1.60 charge as a sales tax. However, the amount
of this "undisclosed fee, " according to plaintiff,
varies with the purchase price so that the greater the
purchase price, the greater the fee -just like a sales tax.
claims that TJX engaged in deceptive and fraudulent business
practices by charging this "fee" and giving
plaintiff a smaller discount than advertised on the face of
the coupon. TJX responds that, despite plaintiffs change in
language, her claim is that she was overcharged in sales tax.
TJX now moves to dismiss for lack of subject matter
jurisdiction on the grounds that New York State offers an
exclusive administrative remedy for tax refund claims,
arguing that in amending the complaint, plaintiff is merely
seeking to couch what is really a sales tax overcharge claim
as a claim for hidden fees. In addition, TJX moves to dismiss
for failure to state a claim, arguing that, even if the
exclusive administrative remedy does not bar her suit,
plaintiff has failed to plausibly allege that TJX failed to
remit any amount it collected as a sales tax to the taxing
Standard of Review
survive a 12(b)(6) motion, a plaintiff must allege
"sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The court must "accept all factual
allegations in the complaint as true and draw inferences from
those allegations in the light most favorable to the
plaintiff." Tsirelman v. Dairies, 794 F.3d 310,
313 (2d Cir. 2015). However, a pleading consisting only of
"labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not
do.'" Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555)).
the court may "draw on its experience and common
sense" in reviewing a complaint, and is not bound by the
labels plaintiff uses. Iqbal, 556 U.S. at 678-79.
consideration on a motion to dismiss is typically limited to
the four corners of an amended complaint, a court is not
required to "turn a blind eye to [a plaintiffs] previous
filings." Kupferstein v. Wakefern, No.
15-cv-5828, at 4 (E.D.N.Y. May 13, 2016); accord Mingues
v. Nelson, 2004 WL 324898, at *3 (S.D.N.Y.Feb. 20,
2004). Accordingly, I will consider plaintiffs original
complaint, as well as the sales receipt attached to her
original complaint, to provide context for her current claim.
New York Tax Law Provides an Exclusive Administrative Remedy
for Tax Payers Seeking Refunds for Taxes that Were Illegally
or Erroneously Collected
"collection of  sales tax[es] constitutes 'merely
a ministerial act.'" Cohen v. Hertz, 2013
WL 9450421, at *3 (S.D.N.Y. Nov. 26, 2013) (quoting
Davidson v. Rochester Tel. Corp.,163 A.D.2d 800, 802
(3d Dep't 1990)). Once it collects the tax, TJX's
"responsibility ends" and "a dissatisfied
taxpayer's recourse is  against the taxing body."
Id. (internal alterations and quotation marks
omitted). New York Tax Law § 1139 provides taxpayers an
administrative remedy to seek a refund of any tax
"erroneously, illegally or unconstitutionally collected
or paid" from the New York Tax Commission, and that
administrative remedy for seeking a refund is exclusive. N.Y.
Tax Law § 1140; Cohen, 2013 WL 9450421, at *3.
Section 1140 further provides that a court may review a
determination by the Tax Commission only in an action
pursuant to Article 78 of the New York Civil Practice Law and
Rules. See Schultz v. Hudson News Distribs., LLC,
2015 WL 6087595, at *2 (Sup. Ct., N.Y. County, Oct. 16,
2015). Therefore, a court may not hear claims such as this of
erroneously or illegally collected or paid New York.