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Belevich v. Thomas

United States District Court, N.D. Alabama, Southern Division

March 9, 2018




         This 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.


         Belevich 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.

         Neither 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.

         In late 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.

         After 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.


         The 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).[1] 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 12(b)(1).[2]


         The 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.

         As a 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)).

         For purposes of this motion only, the court assumes that the underlying divorce proceeding qualifies as an “exceptional circumstance” potentially justifying abstention under Younger.[3] 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 Middlesex factor.

         A. Ongoing State ...

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