In an action against Hotels.com and various other online travel companies claiming that they are violating local tax ordinances by failing to pay a transient room tax, grant of defendants' motion to dismiss is affirmed where: 1) the district court properly applied the principle of ejusdem generis to the ordinances in question in determining that the online travel companies were not "like or similar accommodations businesses" as those listed in the ordinance as they have neither ownership, nor physical control, of the rooms they offer for rent; 2) district court properly concluded that it had committed a clear error of law when it failed to exempt the online travel companies from the transient room tax the first time around; and 3) plaintiffs' argument that the district court erred by making a factual finding that the online travel companies do not exercise physical control over the rooms they rent is rejected as there is no factual dispute to be resolved in the counties' favor.
Argued: October 14, 2009
Decided and Filed: December 22, 2009
Opinion by Circuit Judge Gilman
For Appellant: Anthony G. Raluy, Foley Bryant Holloway & Raluy
For Appellee: Darrel J. Hieber, Skadden Arps Slate Meagher & Flom LLP