United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
action arises out of a contract dispute involving the
purported breach of an obligation created by the Immigration
and Nationality Act, 8 U.S.C. § 1101, et seq.,
and a related state law claim for the intentional infliction
of emotional distress. Klavdia Thomas and Tatiana Kuznitsyna
(the Defendants) have now filed a motion to dismiss, which
the court construes as brought under Rule 12(b)(1) of the
Federal Rules of Civil Procedure, arguing that the court
should abstain from exercising subject matter jurisdiction
over this case because of an ongoing divorce proceeding
between Tatiana Kuznitsyna and the Plaintiff, Valentin
Belevich, in the Circuit Court of Jefferson County, Alabama.
Doc. 6. That motion is now fully briefed, docs. 10 and 13,
and ripe for review. After carefully considering the
parties' briefs and the record, the court finds that the
Defendants motion is due to be denied.
and Kuznitsyna, a married couple with Russian citizenship,
sought to immigrate to the United States in 2009. Doc. 1 at
3. Kuznitsyna's daughter Klavdia Thomas, a citizen of the
United States, sponsored Kuznitsyna and the Department of
Homeland Security approved Kuznitsyna's visa request in
2010. Id. at 4. Kuznitsyna and Thomas then jointly
sponsored Belevich's immigration by co-signing an I-864
Affidavit of Support pursuant to § 213A of the
Immigration and Nationality Act, 8 U.S.C. § 1182a, on
his behalf and promptly filing the document with the
Department of Homeland Security. Id.; see
also 8 C.F.R. § 213a.2(a)(1)(ii). An affidavit of
support is required for certain categories of immigrants to
become lawful permanent residents. 8 U.S.C. §
1182(a)(4)(C). The affidavit must be “executed by a
sponsor of the alien as a contract . . . in which the sponsor
agrees to provide support to maintain the sponsored alien at
an annual income that is not less than 125 percent of the
Federal poverty level during the period in which the
affidavit is enforceable.” 8 U.S.C. §
1183a(a)(1)(A). Notably, the affidavit does not terminate on
divorce, doc. 1-1 at 24, and lasts until the alien becomes a
naturalized citizen of the United States or “has worked
40 qualifying quarters of coverage as defined under title II
of the Social Security Act.” § 1183a(a)(2)-(3).
The Department of Homeland Security subsequently granted
Belevich a visa allowing him to immigrate to Alabama in 2012.
Doc. 1 at 4.
Belevich nor Kuznitsyna spoke English when they arrived in
the United States rendering them entirely dependent on Thomas
for guidance and support. Id. Indeed, among other
things, Belevich allowed Thomas to liquidate the couple's
Russian real property before he immigrated and he also wired
Thomas approximately $15, 000 which she used to purchase and
furnish a home for the couple. Id. Once he arrived
in Alabama, Belevich turned his other financial assets over
to Thomas, and he exclusively relied on a credit card Thomas
provided for his living expenses. Id. Belevich also
surrendered the wages he earned at a variety of jobs,
including a full-time position as an auto-mechanic, to
Thomas. Id. at 5.
2014, Belevich suffered a heart attack and subsequently lost
his job. This created a financial hardship for the family and
strained the parties' relationship. Id. During
his recovery, Belevich temporarily returned to Russia to care
for his ailing mother. Id. Allegedly, Thomas then
sought to prevent Belevich's return to the United States
by cancelling his credit card, cell phone, and return ticket.
Id. While in Russia, Belevich purportedly also
learned that Thomas had emptied his retirement accounts and
liquidated his remaining Russian assets without his
knowledge. Id. These events allegedly caused
Belevich to suffer a second heart attack. Id. at 6.
his condition stabilized, Belevich contacted his wife who
informed him that she was seeking a divorce and that he was
no longer welcome in the couple's home. Id.
Belevich borrowed money from friends to return to the United
States, but, true to her word, Kuznitsyna initiated divorce
proceedings against him. Id. Those proceedings are
still ongoing. Id. at 7. Belevich alleges that since
his return in 2015 neither Kuznitsyna nor Thomas have
complied with their obligations under the I-864 Affidavit of
Support, forcing Belevich to rely on government benefits and
charity to survive. Id. at 5-7. Accordingly,
Belevich filed this action requesting specific performance of
the Defendants' contractual obligations, compensatory
damages for past support, and damages for the intentional
infliction of emotional distress. Id. at 8-9.
Defendants do not specify whether their motion, seeking
dismissal under the Younger abstention doctrine, is
filed under Rule 12(b)(6) or Rule 12(b)(1) of the Federal
Rules of Civil Procedure. Generally, however, challenges to
subject matter jurisdiction are cognizable via Rule 12(b)(1).
Such a motion may take the form of a facial or factual
attack. See McElmurray v. Consol. Gov't of
Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.
2007). A facial attack “‘require[s] the court
merely to look and see if [the] plaintiff has sufficiently
alleged a basis of subject matter jurisdiction” taking
“the allegations in [the] complaint . . . as
true.'” Id. (quoting Lawrence v.
Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
On the other hand, a factual attack challenges “the
existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the
pleadings . . . are considered.” Id. (quoting
Lawrence, 919 F.2d at 1529). Accordingly, when
resolving a factual attack on jurisdiction, the court may
hear conflicting evidence and decide the factual issues
bearing on jurisdiction. Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir.
1991). Here, the central issue bearing on the
abstention question is the status of a parallel state court
divorce proceeding which is not incorporated by the
complaint. Thus, the court considers the Defendants'
motion as a factual attack filed pursuant to Rule
parties agree that this case involves a federal question, and
subject matter jurisdiction is proper pursuant to 28 U.S.C.
§ 1331. Nonetheless, because of ongoing divorce
proceedings in state court, the Defendants contend that this
court should apply the doctrine first announced in
Younger v. Harris, 401 U.S. 37 (1971) and abstain
from the case in favor of the litigation in state court. As a
general rule, “federal courts have a ‘virtually
unflagging obligation' to exercise their jurisdiction
except in those extraordinary circumstances ‘where the
order to the parties to repair to the State court would
clearly serve an important countervailing
interest.'” Deakins v. Monaghan, 484 U.S.
193, 203 (1988) (quoting Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 813, 817 (1976)).
In Younger, however, the Supreme Court recognized
that a limited exception to this obligation existed when
“‘extraordinary circumstances' counsel[ed]
abstention in favor of pending state proceedings.”
Seminole Tribe of Fla. v. Stranburg, 799 F.3d 1324,
1344 n.15 (11th Cir. 2015) (citation omitted). Thus, although
the federal government may be anxious “to vindicate and
protect federal rights and federal interests . . . [it must]
do so in ways that will not unduly interfere with the
legitimate activities of the States.” Younger,
401 U.S. at 44.
threshold matter, this court must first determine whether the
underlying state proceedings fall into one of the three
Younger categories of “exceptional
circumstances” justifying abstention: (1) “state
criminal prosecutions;” (2) “civil enforcement
proceedings;” or (3) “civil proceedings involving
certain orders that are uniquely in furtherance of the state
courts' ability to perform their judicial
functions.” New Orleans Pub. Serv., Inc. v. Council
of the City of New Orleans, 491 U.S. 350, 368 (1989)
(NOPSI); see also Sprint Commc'ns, Inc. v.
Jacobs, 134 S.Ct. 584, 594 (2013) (clarifying that
“Younger extends to the three
‘exceptional circumstances' identified in
NOPSI, but no further”). Once the court is
satisfied that the underlying litigation falls into the
Younger taxonomy, the following three factors (the
Middlesex factors) guide the inquiry into whether
the particular circumstances of the case demand abstention:
(1) “do . . . [the underlying proceedings] constitute
an ongoing state judicial proceeding;” (2) “do
the [underlying] proceedings implicate important state
interests;” and (3) “is there an adequate
opportunity in the state proceedings to raise constitutional
challenges.” Middlesex Cty. Ethics Comm. v. Garden
State Bar Ass'n, 457 U.S. 423, 432 (1982); see
also 31 Foster Children v. Bush, 329 F.3d 1255, 1274-75
(11th Cir. 2003) (applying the Middlesex factors to
determine whether Younger abstention is proper).
Younger abstention is appropriate only when all
three of the Middlesex factors are met. See,
e.g., Hartford Courant Co. v. Pellegrino, 380
F.3d 83, 100-01 (2d Cir. 2004); 31 Foster Children,
329 F.3d at 1274-75; Watson v. Fla. Judicial
Qualifications Comm'n, 618 F. App'x 487, 490
(11th Cir. 2015) (explaining that all three
Middlesex factors must be met before
Younger applies). “While non-abstention
remains the rule, the Younger exception is an
important one . . . [deriving] from ‘the vital
considerations of comity between the state and national
governments.'” 31 Foster Children, 329
F.3d at 1274 (quoting Luckey v. Miller, 976 F.2d
673, 676 (11th Cir. 1992)).
purposes of this motion only, the court assumes that the
underlying divorce proceeding qualifies as an
“exceptional circumstance” potentially justifying
abstention under Younger. Turning next to the
application of the Middlesex factors, the court
notes initially that the parties accept that the underlying
divorce proceeding implicates an important state interest,
marital relations, thereby satisfying the second
Middlesex factor. See Ex parte Burrus, 136
U.S. 586, 593-94 (1890) (observing that “[t]he whole
subject of the domestic relations of husband and wife . . .
belongs to the laws of the states and not to the laws of the
United States”). The parties' dispute focuses on
the first and third Middlesex factors. More
specifically, the Defendants contend that the litigation in
this court poses a risk of undue interference with the
intertwined state court divorce proceedings, and that
Belevich's claim can be fully litigated in state court.
The court disagrees with the Defendants that the first
Middlesex factor, whether there is an ongoing state
judicial proceeding, weighs in favor of abstention. As a
result, the court does not address the third
Ongoing State ...