F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 6 1998 TENTH CIRCUIT PATRICK FISHER Clerk

HUGO E. RIBADENEIRA,

Plaintiff-Appellant Cross-Appellee, No. 97-3089 v. No. 97-3100 (District of Kansas) DIRECTOR OF TAXATION, (D.C. No. 95-CV-1535) DEPARTMENT OF REVENUE, STATE OF KANSAS,

Defendant-Appellee Cross-Appellant.

ORDER AND JUDGMENT *

Before PORFILIO, BRORBY, and MURPHY, Circuit Judges.

Hugo E. Ribadeneira appeals the district court’s dismissal, pursuant to the

Tax Injunction Act, 28 U.S.C. § 1341, of Ribadeneira’s declaratory judgment

action. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and

affirms.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Ribadeneira brought the present declaratory judgment action premised on

federal question jurisdiction under 28 U.S.C. § 1331, alleging that the Kansas

system of collecting certain unpaid corporate taxes from “responsible” officers of

the corporation violated due process. In particular, Ribadeneira alleged that

Kansas had filed tax warrants and liens against his property without providing

notice or a hearing. Respondent, the Director of Taxation for the Department of

Revenue, 1 moved the district court to dismiss Ribadeneira’s claims on the ground

that the suit was barred by the Tax Injunction Act, 28 U.S.C. § 1341.

Specifically, Respondent asserted that Ribadeneira had a “plain, speedy, and

efficient remedy” in the courts of Kansas. See id. Respondent further noted that

Ribadeneira had sued for a refund of taxes in state court but that the state court’s

had refused to hear the claim because Ribadeneira failed to exhaust his

administrative remedies. Ribadeneira never sought to take advantage of those

administrative remedies.

1 Ribadeneira originally brought suit against Wayne Vennard, the ex- Director of Taxation, in his official capacity. Vennard has moved this court for substitution of party defendant. Vennard notes that he is no longer Director of Taxation and that the office is now vacant. He asserts, however, that because he was sued only in his official capacity it would be appropriate to substitute the name of the office as the party defendant. This court grants Vennard’s motion and orders that the Director of Taxation be substituted as the party of record in this case. See Fed. R. App. P. 43(c).

-2- The district court dismissed Ribadeneira’s complaint pursuant to the Tax

Injunction Act. The district court found that the Kansas Retailers’ Sales Tax Act,

Kan. Stat. Ann. § 79-3601 et seq., provided Ribadeneira with a “plain, speedy,

and efficient remedy, that Ribadeneira had never attempted to take advantage of

the Kansas remedies, and that Ribadeneira’s claims about the insufficiency of

Kansas’ remedies was little more than speculation. Based on these findings, the

district court concluded as follows:

Here, . . . the statutory scheme provided Ribadeneira with a plain, speedy and efficient remedy that included an opportunity to have his federal constitutional claims addressed by the Kansas courts, with an ultimate review by the Supreme Court. The fact that Ribadeneira failed to take advantage of this remedy does not bestow jurisdiction on this court.

Dist. Ct. Order at 9.

This court has reviewed the parties’ briefs and contentions, the district

court’s order, and the entire record on appeal. That close review reveals no trace

of reversible error. Accordingly, this court AFFIRMS for substantially those

reasons set out in the district court’s Memorandum and Order dated February 25,

-3- 1997. As counsel for Respondent candidly noted during oral argument, this

court’s affirmance of the district court’s order of dismissal moots Respondent’s

cross-appeal. Accordingly, Respondent’s cross-appeal is hereby DISMISSED.

ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge

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