NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 21-2501

__________

CHRISTOPHER LISOWSKI, on behalf of himself

and all others similarly situated,

Appellant

v.

WALMART STORES, INC.,

__________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2:20-cv-01729-NR)

District Judge: Honorable J. Nicholas Ranjan

__________

Submitted May 2, 2022

Before: GREENAWAY, JR., PORTER, and PHIPPS, Circuit Judges

(Opinion Filed: July 15, 2022)

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OPINION

______________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PORTER, Circuit Judge.

Christopher Lisowski purchased two 6-packs of 5‐Hour Energy on separate 

occasions. Walmart charged him a 7% state and local sales tax of $1.88. Aggrieved by 

the monetary loss of approximately two dollars, Lisowski filed a putative class action in 

state court, alleging that 5‐Hour Energy drinks are “dietary supplements” exempt from 

sales tax under Pennsylvania law. His claims for conversion, constructive trust, and 

deceptive trade practices all stem from his belief that Walmart knowingly took this 

charge to profit from the commission it receives for collecting sales tax. Walmart 

removed the suit under the Class Action Fairness Act because the alleged damages 

totaled more than $5 million.

Lisowski filed a motion to remand, arguing that the Tax Injunction Act (“TIA”) 

and principles of comity required remand. The District Court determined that the TIA did 

not preclude jurisdiction because Lisowski, “if successful, would receive damages from a 

private-party defendant.” Lisowski v. Walmart Stores, Inc., No. 2:20-CV-1729-NR, 2021 

WL 62627, at *2 (W.D. Pa. Jan. 7, 2021). The District Court then dismissed the 

complaint for failure to state a claim under Rule 12(b)(6). Lisowski appeals from the 

denial of remand and the dismissal of the complaint. We will affirm.

I

“Because a motion to remand shares an essentially identical procedural posture 

with a challenge to subject matter jurisdiction under Federal Rule of Civil Procedure 

12(b)(1), it is properly evaluated using the same analytical approach.” Papp v. Fore-Kast 

Sales Co., 842 F.3d 805, 811 (3d Cir. 2016) (citing Leite v. Crane Co., 749 F.3d 1117, 
3

1121 (9th Cir. 2014)). Thus, we review de novo whether the District Court had subject 

matter jurisdiction. Id. “A challenge to subject matter jurisdiction under Rule 12(b)(1) 

may be either a facial or a factual attack.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d 

Cir. 2016). A facial attack “challenges subject matter jurisdiction without disputing the 

facts alleged in the [notice of removal], and it requires the court to consider the 

allegations . . . as true.” Papp, 842 F.3d at 811 (alteration in original) (quoting Davis, 824 

F.3d at 346).

The Tax Injunction Act states 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. 

The prototypical Tax Injunction Act case concerns charges that must be characterized as 

either a fee or a tax. See, e.g., Texas Ent. Ass’n v. Hegar, 10 F.4th 495, 505 (5th Cir. 

2021). Alternatively, they involve charges that are clearly taxes whose validity is being 

challenged. See, e.g., Sipe v. Amerada Hess Corp., 689 F.2d 396, 404 (3d Cir. 1982) (TIA 

is implicated when the court must determine “the validity of the state tax system”). But 

here, the issue is whether the $1.88 charged by Walmart is a tax at all. Our jurisdiction 

turns on that issue. If 5-Hour Energy is taxable, then Walmart’s charge is unambiguously 

a tax, and we lack jurisdiction to enjoin its collection. If it is not taxable, then Walmart’s 

charge is merely a fraudulent charge that it labeled as a tax, and we do have jurisdiction. 

Lisowski argues that reaching the merits of whether an item is taxable or not falls under 

the scope of the Tax Injunction Act or, alternatively, is barred by the principles of comity 

due to its potential to interfere with the state tax system.
4

But Lisowski’s arguments cut against his own complaint. The complaint alleges 

that the $1.88 is merely an improper charge that has been fraudulently labeled as a tax. 

See Appellant Br. 4–5 (“Walmart charged (and continues to charge) a higher purchase 

price for dietary supplements than authorized, under the guise of collecting a lawful 

tax.”); see also Lisowski, 2021 WL 62627, at *2 (noting that the “complaint assumes that 

no tax is owed to begin with”). Nonetheless, Lisowski claims that his suit must be 

remanded under the Tax Injunction Act because enjoining the collection of this charge 

would prevent money from reaching Pennsylvania’s coffers. But assuming Lisowski’s 

allegations are true, Pennsylvania has no interest in collecting that money at all. See 

Freed v. Thomas, 976 F.3d 729, 735 (6th Cir. 2020) (TIA did not apply when the 

government did not “have any property right or interest in the excess sale proceeds”). 

And if Pennsylvania has determined that 5-Hour Energy is not taxable, Walmart does not 

have the power to impose a tax, even if it labels it so on its receipts.

Undeterred by the limitations of his own complaint, Lisowski argues that if 

Walmart denies the allegations against it, then the court will be required to “wade into the 

tax regulation waters,” but that if Walmart admits it violated Pennsylvania tax law, then 

an injunction would be appropriate. Appellant Br. 18 n.6. Lisowski’s argument requires 

that Walmart’s charge is a tax when convenient, and not a tax when inconvenient. 

Compare App. 50 (requesting decree enjoining Walmart “from the further improper 

collection of sales tax”), with Appellant Br. 4. (“Walmart charged . . . a higher purchase 

price . . . under the guise of collecting a lawful tax” (emphasis added)). 
5

We reject Lisowski’s “heads I win-tails you lose” argument. Walmart need not 

admit it violated Pennsylvania tax law, nor was the District Court required to determine if 

5-Hour Energy was taxable. Instead, the District Court merely held that the facts alleged 

in the notice of removal did not implicate the Tax Injunction Act.1 Lisowski’s claims rest 

solely on Walmart’s allegedly improper collection of a charge that it was not authorized 

to take. And the mere potential for Walmart to eventually raise a tax-based defense did 

not strip the District Court of jurisdiction. Cf. Krashna v. Oliver Realty, Inc., 895 F.2d 

111, 113 (3d Cir. 1990) (actions not removable based on anticipated federal defenses); 

App. 196 (“It’s true that one of our potential defenses down the line, among many, is that 

these charges were statutorily authorized . . . .”). Because Lisowski merely seeks to 

enjoin Walmart from charging an excess purchase price, we will affirm the District 

Court’s denial of remand based on the TIA.2

Alternatively, Lisowski argues that principles of comity require a remand. It is 

well established that federal courts have a “virtually unflagging obligation . . . to exercise 

the jurisdiction given them.” Colo. River Water Conservation Dist. v. United States, 424 

1 The District Court also held that the TIA is limited to suits challenging a taxpayer’s own 

underlying tax liability and is thus inapplicable to suits between private parties. While we 

do not reach this issue, we note that other circuits have applied the TIA to private suits. 

See, e.g., Fredrickson v. Starbucks Corp., 840 F.3d 1119, 1122–23 (9th Cir. 2016) (TIA 

barred relief against Starbucks’ withholding of state income tax); Gwozdz v. HealthPort 

Techs., LLC, 846 F.3d 738, 744 (4th Cir. 2017).

2

In reaching this conclusion, we recognize the Fourth Circuit’s contrary opinion in 

Gwozdz, 846 F.3d at 744 (TIA barred taxpayers’ attempt to “repackage an allegedly 

unlawful sales tax collection into a faux consumer protection suit”). There, plaintiffs sued 

a private party for the collection of $23 on an allegedly untaxable item. Id. at 740. But we 

do not view this case as “artful pleading.” Rather, we accept as true the allegations of the 

complaint to determine whether the Tax Injunction Act applies.
6

U.S. 800, 817 (1976). Thus, “[a]bstention from the exercise of federal jurisdiction is the 

exception, not the rule.” Id. at 813. Comity is a discretionary doctrine, so we review the 

District Court’s denial of remand for abuse of discretion. See Remington Rand Corp.-Del. 

v. Bus. Sys. Inc., 830 F.2d 1260, 1266 (3d Cir. 1987).

“The comity principle is commonly applied where a plaintiff seeks a remedy that 

is not literally included in the text of the TIA, which by its terms is limited to 

injunctions.” Am. Trucking Ass’ns v. Alviti, 944 F.3d 45, 57 (1st Cir. 2019). In other 

words, the TIA “prevents federal courts from giving injunctive relief, [whereas] . . . it is 

the principle of comity that prevents a taxpayer from seeking damages.” Dorce v. City of 

New York, 2 F.4th 82, 97 (2d Cir. 2021) (alterations in original) (quoting Long Island 

Lighting Co. v. Town of Brookhaven, 889 F.2d 428, 431 (2d Cir. 1989)). Here, we have 

already established that the TIA does not apply to Lisowski’s claims for injunctive relief, 

so it makes little sense to apply comity to his claims for damages.3

Lisowski is correct, however, that the District Court could someday be faced with 

the issue of deciding whether 5-Hour Energy is taxable, thus risking the possibility of 

enjoining a tax. And courts should be hesitant when “entertaining claims for relief that 

risk disrupting state tax administration.” Levin, 560 U.S. at 417. But the District Court 

has ample tools to manage this case without abstaining from the outset. See Jefferson 

3 The Supreme Court has given several factors to consider when deciding whether to 

refrain from deciding a case based upon comity. See Levin v. Com. Energy, Inc., 560 U.S. 

413, 421 (2010). As the District Court noted, the comity factors are ill-fitting here. 

Lisowski does not raise an “alleged constitutional defect” or otherwise challenge the 

validity of Pennsylvania’s tax system. Lisowski v. Walmart Stores, Inc., 2021 WL 62627, 

at *3 & n.1 (W.D. Pa. Jan. 7., 2021).
7

Cnty. v. Acker, 527 U.S. 423, 435 n.5 (1999) (citing Burford v. Sun Oil Co., 319 U.S. 

315, 332–34 (1943) (federal abstention where state agency action is involved); 

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 719–21 (1996) (in a case seeking 

damages, a federal court may not abstain, but can stay the action pending resolution of 

the state-law issue)). And given the ultimate dismissal of this case without reference to 

the taxable status of 5-Hour Energy, “there is nothing unique, complex, or particularly 

tax-centric about this case.” Lisowski, 2021 WL 62627, at *3. The District Court did not 

abuse its discretion in determining that the mere potential for a tax-based defense to arise 

in the future did not warrant setting aside its “virtually unflagging obligation” to hear 

cases before it. Colo. River Water Conservation Dist., 424 U.S. at 817. So we will affirm 

the District Court’s denial of remand.

II

Lisowski raised common law claims and a statutory claim under the Pennsylvania 

Unfair Trade Practice and Consumer Protection Law (“UTPCPL”). After denying 

Lisowski’s motion to remand, the District Court dismissed all other claims under Rule 

12(b)(6). We will affirm.

The District Court dismissed Lisowski’s UTPCPL claim because Walmart was not 

conducting “trade or commerce” when collecting sales tax on behalf of Pennsylvania. 73 

Pa. Stat. § 201‐3. According to the District Court, the statute aims at the “particular evils 

of deception and unfairness in the commercial sphere.” Lisowski v. Walmart Stores, Inc., 

552 F. Supp. 3d 519, 524 (W.D. Pa. 2021). Thus, the statute does not apply when 

Walmart collects sales tax where “state law requires [it] to do so.” Id. at 526 (citing 
8

McLean v. Big Lots, 542 F. Supp. 3d 343, 349–51 (W.D. Pa. 2021)). But the District 

Court’s reasoning assumes that Walmart is a bona fide collector of sales tax. And as 

discussed above, the complaint alleges that the $1.88 charge is not a sales tax. 

We nonetheless affirm, albeit on different grounds. See Hassen v. Gov’t of Virgin 

Islands, 861 F.3d 108, 114 (3d Cir. 2017) (“[W]e may affirm on any grounds supported 

by the record.”). Because Lisowski failed to establish justifiable reliance to support his 

statutory claim, the District Court properly dismissed his UTPCPL claim. The UTPCPL 

prohibits “deceptive conduct which creates a likelihood of confusion or of 

misunderstanding.” 73 Pa. Stat. § 201‐2(4)(xxi). To state a claim, Lisowski must allege 

that he justifiably relied on an unlawful practice. See Gregg v. Ameriprise Fin., Inc., 245 

A.3d 637, 650 (Pa. 2021). Our precedent unambiguously recognizes that this is the rule 

under Pennsylvania law. Hunt v. United States Tobacco Co., 538 F.3d 217, 224 (3d Cir. 

2008) (“Given the Pennsylvania Supreme Court’s unequivocal holdings, . . . it is perhaps 

unsurprising that our Court has already interpreted the justifiable-reliance standing 

requirement to apply to all substantive subsections of the [UTPCPL], fraud-based or 

not.”). Thus, a plaintiff “must allege reliance, that he purchased [an item] because he 

heard and believed [defendant’s] false advertising.” Weinberg v. Sun Co., 777 A.2d 442, 

446 (Pa. 2001); see also Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 

2004) (“To bring a private cause of action under the UTPCPL, a plaintiff must show that 

he justifiably relied on the defendant’s wrongful conduct or representation and that he 

suffered harm as a result of that reliance.” (citations omitted)).
9

But Lisowski has failed to allege reliance, or any facts supporting justifiable 

reliance, in his complaint. App. 42–54. There is no indication that Lisowski purchased 

the 5‐Hour Energy under the assumption that it was tax free. And there is no indication 

that Walmart’s conduct or representations would lead a reasonable consumer to assume 

that 5‐Hour Energy was tax free. In fact, Lisowski’s allegations show that he was charged 

a sales tax of $.94 for his first purchase of 5-Hour Energy and that he nonetheless 

purchased another 5‐Hour Energy, tax notwithstanding. So, we will affirm the dismissal 

of Lisowski’s UTPCPL claim for failure to allege justifiable reliance.

Lisowski has three remaining common law claims: (1) conversion; (2) unjust 

enrichment; and (3) breach of constructive trust. The District Court properly dismissed 

these claims because Lisowski has an exclusive statutory remedy under the Tax Reform 

Code. See White v. Conestoga Title Ins. Co., 53 A.3d 720, 731 (Pa. 2012) (noting that one 

of “Pennsylvania’s oldest legal principles” is that a statutory remedy bars common law 

claims); see also 1 Pa. Stat. and Cons. Stat. § 1504 (codifying the principle that statutory 

remedies displace common law). “[I]f the legislature provides a specific, [e]xclusive, 

constitutionally adequate method for the disposition of a particular kind of dispute, no 

action may be brought . . . to adjudicate the dispute by any kind of ‘common law’ form of 

action other than the exclusive statutory method.” Lilian v. Commonwealth., 354 A.2d 

250, 253 (Pa. 1976). As the District Court noted, the Tax Reform Act provides a refund 

remedy for the improper collection of a charge under the guise of a sales tax. See 72 Pa. 

Stat. § 7252 (requiring Department of Revenue to “refund all taxes, interest and penalties 

paid to the Commonwealth under the provisions of this article and to which the 
10

Commonwealth is not rightfully entitled.”). This remedy is available to any “taxpayer 

who has actually paid tax . . . to the Commonwealth or to an agent or licensee of the 

Commonwealth authorized to collect taxes.” 72 Pa. Stat. § 10003.1 (emphasis added).

Rather than launch a putative class action, Lisowski could have sought a simple 

refund from the Pennsylvania Department of Revenue. In fact, Lisowski alleged that 

another purchaser of 5-Hour Energy petitioned for a refund and was compensated $4.51. 

That refund would fully compensate him for any alleged harm and would thus be 

constitutionally adequate. So, Lisowski’s common law claims are barred by the existence 

of a statutory refund mechanism that is available to him.

III

Lisowski contends that the District Court erred in dismissing his complaint with 

prejudice. But Lisowski “did not ask the District Court for leave to amend [his] 

complaint, . . . [so he] can hardly fault the Court for not granting relief [he] never 

requested.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 

(3d Cir. 2007). And we have noted that district courts do not have a duty to “sua sponte 

grant leave to amend before dismissing a complaint for failure to state a claim.” Id. at 

252.4

* * *

4 Lisowski cites Phillips v. Cnty. of Allegheny for the proposition that “a district court 

must permit a curative amendment” even when a plaintiff does not seek leave to amend. 

515 F.3d 224, 236 (3d Cir. 2008). We have limited this proposition to civil rights cases, 

so it does not apply here. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 

482 F.3d 247, 252 (3d Cir. 2007) (“We have rarely applied the sua sponte amendment 

rule outside of the context of a civil rights case, and we will not do so here.”).
11

For these reasons, we will affirm the District Court’s denial of remand and 

dismissal of the complaint with prejudice under Rule 12(b)(6).