469 F2d 337 Mr Boston Distiller Corp v. A Pallot

469 F.2d 337

MR. BOSTON DISTILLER CORP. and Consolidated Distributors of
Tampa, Inc., Plaintiffs-Appellants,
v.
Richard A. PALLOT et al., etc., Defendants-Appellees.

No. 72-2350 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Nov. 1, 1972.
Rehearing and Rehearing En Banc Denied Dec. 19, 1972.

Shalle Stephen Fine, George Onett, Miami, Fla., for plaintiffs-appellants.

Herbert Klein, Dept. of Business Regulation, Tallahassee, Fla., for defendants-appellees.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

PER CURIAM:

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1

Mr. Boston Distiller Corporation has attempted through various efforts to have a Florida tax statute declared unconstitutional. Pertinent to its attempts is the Tax Injunction Act, 28 U.S.C. Sec. 1341 (1964), which provides that the federal district courts shall not interfere with state taxes where an efficient remedy is available in state courts. After unreservedly presenting its case to the Florida courts, and losing (finally before the Florida Supreme Court1), the corporation now resorts to the federal courts by this suit. At issue is whether the Tax Injunction Act, by confining appellant's initial choice of forum to the state courts, provides an exception to the doctrine of res judicata for a subsequent suit in federal court. Under the circumstances here we believe res judicata applies and prevents further consideration by us. Accordingly, the District Judge properly dismissed the case, 342 F.Supp. 770. Autokefalos Orthodox Spiritual Church of Saint George, The Tropeophoros v. Hallahan, S.D.N.Y.1952, 103 F.Supp. 389; 1 A Moore's Federal Practice p 0.207 (1965).

2

Affirmed.

3

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

4

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied. See E. B. Elliott Adv. Co. v. Metropolitan Dade County, 5th Cir., 1970, 425 F.2d 1141, 1148, 1149, n.3; Battle v. Cherry, 339 F.Supp. 186, 191-193 (N.D.Ga.1972).

*

Rule 18, 5 Cir.; see Isbell Enterprises,

Inc. v. Citizens Casualty Co. of New York, 5 Cir., 1970, 431 F.2d 409, Part I.

1

Faircloth v. Mr. Boston Distiller Corp., Fla.1970, 245 So.2d 240