Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davis v. White

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

September 21, 2018

LINDSAY and BENJAMIN DAVIS, Plaintiffs,
v.
J. MICHAEL WHITE, et al., Defendants NICOLE and JONATHAN SLONE, Plaintiffs,
v.
J. MICHAEL WHITE, et al., Defendants MONICA and JOHN LAWRENCE JR., Plaintiffs,
v.
J. MICHAEL WHITE, et al., Defendants.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge

         I. INTRODUCTION

         Plaintiffs Lindsay and Benjamin Davis (Case No. 17-533), Nicole Slone and Jonathan Slone (Case No. 17-534) and Monica Lawrence and John Lawrence, Jr. (Case No. 17-535) brought three separate actions against various Defendants alleging a deprivation of their constitutional rights under 42 U.S.C. § 1983, violations of the Federal Debt Collections Practices Act, a § 1983 conspiracy claim, and state law claims arising from Defendants' provision of sewer services to their homes in McCalla, Alabama.

         Before this Court are Plaintiffs Lindsay and Benjamin Davis's (the “Davis Plaintiffs” or “Davises”) amended complaint (doc. 33 in No. 17-533), Plaintiffs Nicole and Jonathan Slone's (the “Slone Plaintiffs” or “Slones”) amended complaint (doc. 48 in No. 17-534) and Plaintiffs Monica and John Lawrence, Jr.'s (the “Lawrence Plaintiffs” or “Lawrences”) amended complaint (doc. 44 in No. 17-535). The Plaintiffs in these actions have not asked the permission of the Court to amend their complaints. However, the Court interprets these as implied motions to file amended complaints. Also before this Court are various motions to dismiss by the Davis defendants (docs. 12, 14, 15 & 19 in No. 17-533), Slone defendants (docs. 16, 18, 31, & 44 in No. 17-534), and Lawrence defendants (docs. 16, 18, 26, 27, & 39 in No. 17-535). Defendants argue that these cases should be dismissed due to pleading defects in the allegations of the Plaintiffs' complaints that subject them to dismissal under Fed.R.Civ.P. 12(b)(6). Having the benefit of the parties' full briefing of these issues, the Davis Plaintiffs' implied motion to amend (doc. 33 in No. 17-533), the Slone Plaintiffs' implied motion to amend (doc. 48 in No. 17-534), and Lawrence Plaintiffs' implied motion to amend (doc. 44 in No. 17-535) are due to be granted, and the motions to dismiss by the Davis defendants (docs. 12, 14, 15 & 19 in No. 17-533), Slone defendants (docs. 16, 18, 31, & 44 in No. 17-534), and Lawrence defendants (docs. 16, 18, 26, 27, & 39 in No. 17-535) are due to be terminated as moot.

         II. Background[1]

         Defendant Town of Lake View (“Lake View”) conveyed its sanitary sewer system to Defendant Governmental Utility Services Corporation of Lake View (“Lake View GUSC”) on July 13, 1999. Lake View GUSC is a Governmental Services Utility Corporation formed pursuant to Ala. Code § 11-97-1, et seq. Lake View's Town Council members sit on and appoint people to sit on the Lake View GUSC board. Lake View GUSC then leased the sanitary sewer system to Defendants J. Michael White (“White”) and SERMA Holdings LLC (“SERMA”). This includes the sewer system that serves the properties owned by the Davises, Slones, and Lawrences.

         White and his wife have an “effectively exclusive sewer franchise” through various agreements, loans, leases, and entities. (Doc. 33 ¶91.) SERMA, which is owned by White and his wife, owns a significant interest in Defendant ECO Preservation L.L.C d/b/a Tannehill Sewer (“ECO”), which owns the sewage treatment plant used by the Lake View sewer system. Additionally, White owns and operates Defendant AKETA Management group (“AKETA”), which serves as the customer management company and debt collector for ECO. White also serves as a representative and banking disbursement agent for Lake View GUSC. White's wife wholly owns Defendant Knobloch, Inc. (“Knobloch”). Knobloch is the official permit holder for all pertinent National Pollutant Discharge Elimination System (“NPDES”) permits for the wastewater treatment plant and subsequent disposition collected from the sewer system owned, leased, and operated by SERMA and ECO. Finally, Knobloch was and is the developer for the subdivisions connected to the sanitary sewer system of Lake View and nearby annexed areas. The Davises, Slones, and Lawrences all own homes that receive sewer services from ECO.

         A. Case No. 17-533

         The Davises purchased and assumed the mortgage on their home in March 30, 2017. However, the Davises did not move into their home until the morning of July 31, 2017. That same morning, Ms. Davis called ECO about their sewer service. Ms. Davis spoke with a representative of ECO, who was also an AKETA employee. The representative told Ms. Davis that she needed to pay $1, 072.08 to bring the home's account current. The Davises had not lived in the home prior to July 31, 2017, nor had they discharged anything into the sewer system there. Nevertheless, the representative informed Ms. Davis that a lock was placed on the house's water line due to the delinquency pursuant to ECO's “WATER CUT OFF” policy. The water lines that Defendants cut off under this policy are owned and operated by Warrior River Water Authority, which has no ties to White or his entities.

         Later that afternoon, the same representative called Ms. Davis and told her that a padlock had been placed on their water line that morning because the prior lock had been cut off. However, Ms. Davis checked the water and it appeared to be running normally in the house. Ms. Davis told the representative this fact and the representative hung up to investigate the matter. Less than an hour later, the representative called Ms. Davis again and told her a new padlock had been placed on the Davises' water line. The representative informed Ms. Davis that they now owed $1, 200.00 for replacement parts and a padlock, along with a $5, 000.00 charge for “tampering” with the lock on the water supply line. (Doc. 33 ¶ 30).

         Three hours later, the representative called Ms. Davis again and told her that a technician had stopped by the property to investigate the property and removed the lock. The representative told Ms. Davis that the lock had been tampered with so yet another new lock would be placed on the water line in the morning. The Davises, according to the representative, would now have to pay a total of $6, 072.08 to have their water restored.

         On August 1, 2017, Plaintiffs sent a letter to ECO disputing the charges, but enclosed a cashier's check for $1, 075.00 in hopes of establishing service. This check was returned to the Davises. Later that day, White contacted Ms. Davis to investigate the matter. During the phone call, White refused to discuss the dispute and instead asked Ms. Davis about her company and property in Leeds, Alabama. When Ms. Davis interrupted White to ask for proof or documentation of the alleged lock tampering, White ended the call and told her they would have to settle the matter in court.

         On August 5, 2017, the Davises received a letter with an assessment statement telling them that they had “been assessed a penalty fee for Tampering with a Sewer Service Disconnect and Unauthorized Discharge pursuant to §14.2020 and §14.2040 of the Wastewater Standards, rules and regulations (“Sewer Regulations”).” (Doc. 33 ¶42). According to the letter, the Davises allegedly owed a total of $6, 669.08 for various “Balance[s] forward” and a “Late Fee, ” “Finance Charge, ” “Water Disconnect Fee, ” “Tampering w/Sewer Service Disconnect” fee, “Unauthorized Discharge - Cut Lock Off Valve” fee, “Security Deposit, ” and “Account Transfer Fee.” (Doc. 33 ¶47). The letter threatened the Davises with criminal prosecution and informed them they had ten days to bring their account current and to replace their water cut-off valve pursuant to sewer regulations. The Davises had never received a copy of these regulations. The letter lastly informed the Davises that these charges had been assessed as a lien on their property. Currently, Defendants allege that the Davises owe $17, 156.20.

         B. Case No. 17-1534

         The Slones purchased and moved into their house on October 31, 2014. They later temporarily moved out of that house in the summer of 2016 to relocate to Kentucky in pursuit of work. Before they left, Ms. Slone called ECO, AKETA, and/or SERMA to request that their sewer service be temporarily disconnected. Ms. Slone was informed by a representative that a temporary disconnect would not be an issue and sewer services would be suspended until they returned home and requested a reconnect. The Slones then moved to Kentucky under the belief that their sewer services would be provisionally suspended while they were away.

         When the Slones returned to their McCalla home in October of 2016 and attempted to reconnect their sewer service, they were informed that ECO had an “ALWAYS ON” policy, and consequently their sewer service had never been suspended. Over the period of time the Slones were in Kentucky, their sewer service bill accrued to an amount of $3, 610.64. After ECO and/or AKETA accepted one payment of $100.00 towards the outstanding balance, the Slones attempted to continue to remit partial payments. However, all other payments were returned for failure to pay the full amount. On July 24, 2017, agents for ECO, AKETA, and/or SERMA disconnected the Slones' water supply service by locking the water cut-off valve located on their property. The Slones were then assessed a charge of $125.00. The Slones were without running water in their home for three weeks. During that time, the Slones were forced to use bottled water and bathe at friends' and family's houses.

         Although the Slones' water cut-off valve had been locked, the padlock on the water valve was subsequently removed. The Slones were then charged $500 for “Tampering w/ Sewer Service Disconnect” and $5000 for “Unauthorized Discharge - Cut Lock Off Valve.” (Doc. 48 ¶ 45-49.). Defendant Michael J.

         Walraven (“Walraven”), the operating manager for Defendants Engineers of the South L.L.C. (“Engineers”) and EOS Utility Services L.L.C (“EOS Utility”), then filed a police report for “Theft of Services First Degree” against Nicole Slone for breaking the water valve and removing the lock on the valve. (Doc. 48 ¶ 15.) Defendants Engineers and EOS both provide services for the Lake View sanitary sewer system. Plaintiffs allege that Walraven, Engineers, and EOS were party to the conspiracy among White, his entities, and Lake View and Lake View GUSC because Engineers provided sewer services to the Slones' home, and Walraven filed the incident report on behalf of ECO, SERMA, and /or AKETA. After these assessments, the Slones were alleged to owe $10, 180.02, and ECO, AKETA, and/or SERMA apparently filed a lien against the Slones' home in this amount to collect the debt.

         C. Case No. 17-1535

         The Lawrences purchased and moved into their home in McCalla on August 17, 2012. Defendant D.R. Horton, Inc. (“Horton”) sold the house to the Lawrences. During the purchase process, the Lawrences asked an agent of Horton's whether the sewer system was private or public. The agent told the Lawrences that “the sewer was a Tuscaloosa County System.” (Doc. 44.)

         After the purchase, the Lawrences paid their sanitary sewer bills on time until February 2017. In February 2017, the Lawrences failed to pay their monthly service fee of $92.00. In the subsequent months, the Lawrences paid additional monies towards their sewer service fees. However, on July 19, 2017, Ms. Lawrence returned home to discover that the water to her home was disconnected. Ms. Lawrence called their water company, Warrior River Water Authority, which informed her that ECO had locked her water line. Ms. Lawrence tried to contact ECO and/or AKETA, but her calls were unsuccessful. The water was cut off pursuant to ECO, AKETA, and/or SERMA policy of cutting off a house's water lines when the homeowner's account became delinquent.

         Ms. Lawrence eventually got in contact with Ms. Snow, a representative of ECO, AKETA, and or/ SERMA. Ms. Snow instructed Ms. Lawrence to take the full amount of their alleged outstanding bill of $778.00 to the office of Engineers and EOS Utility. On July 24, 2017, Ms. Lawrence took a check for the amount charged to the office. While at the Engineers and EOS office, Ms. Lawrence was told by a representative that he would take a picture of the check and send it so that Lawrences' water could be restored. Upon her return home, Ms. Lawrence discovered that the water service had been restored.

         Several days later, although the charges were supposed to be removed from the account, the Lawrences received a letter stating that they had been assessed “a penalty fee for Tampering with a Sewer Service Disconnect and Unauthorized Discharge pursuant to § 14.2020 and § 14.2040 of the Wastewater Standards, rules and regulations.” (Doc. 44 ¶ 40.) The letter threatened criminal prosecution and told the Lawrences they had 10 days to bring their account current and replace or repair the water cut-off valve that was no longer on their water line. Also, included in the letter was an assessment statement in which ECO, AKETA, and/or SERMA claimed that the Lawrences owed $5, 500.00 for a “Water Disconnect Fee, ” “Tampering w/Sewer Service Disconnect, ” and “Unauthorized Discharge - Cut Lock Off Valve.” (Doc. 44 ¶ 40.) The Lawrences, who were never given a copy of the sewer regulations, contested these charges.

         Shortly after the Lawrences complained about the charges, Walraven, the operating manager for Engineers and EOS Utility, filed a police report for “Theft of Services First Degree” against Mr. Lawrence for breaking the water valve and removing the lock on the valve. (Doc. 44 ¶ 47.) Since the Lawrences contested the bill, ECO, AKETA, and/or SERMA have refused to accept any partial payments by the Lawrences. Defendants currently allege that the Lawrences owe $24, 245.09 and a lien has apparently been assessed on their property to collect the debt.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.