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Pettway v. Attorney General Steve Marshall

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

August 8, 2019

BRUCE PETTWAY and EMPLOYER BENEFITS CONSULTING, LLC, Plaintiffs,
v.
ATTORNEY GENERAL STEVE MARSHALL, in his individual and official Capacities; and BBVA COMPASS BANK, Defendants.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         The matter comes before the court on Defendant Attorney General Steve Marshall's “Motion to Dismiss, ” in which the Attorney General argues that the Younger abstention doctrine requires the court to abstain from exercising jurisdiction over Plaintiffs' claims. (Doc. 16). For the reasons discussed below, the court WILL DENY the Attorney General's motion to dismiss.

         I. Factual Background

         Plaintiff Bruce Pettway, the founder of Plaintiff Employee Benefits Consulting, LLC, is the brother of Jefferson County Sheriff Mark Pettway. (Doc. 11 at ¶¶ 10, 22). Since Sheriff Pettway's investiture in January 2019, Plaintiffs allege the Attorney General has publicly criticized the new sheriff's supposed failure to enforce Alabama's misdemeanor gambling laws. (Doc. 11 at ¶ 23).

         Plaintiffs allege Bruce Pettway provided consulting services to Brighton Ventures and Brighton Ventures II in early 2019 in exchange for a one-time payment of approximately $15, 500, which he deposited into EBC's BBVA bank account. (Doc. 11 at ¶¶ 13-14, 16).

         Plaintiffs allege that in April 2019 Attorney General Marshall told a group of students at Auburn University that he would “handle the Sheriff” for the Sheriff's supposed failure to enforce Alabama's gambling laws in Jefferson County. (Doc. 11 at ¶ 24).

         On or about June 13, 2019, BBVA notified Plaintiffs that the Alabama Attorney General's office had frozen EBC's account with BBVA, which had approximately $240, 000 in it. (Doc. 11 at ¶¶ 19-20).

         The Attorney General's office commenced an in rem forfeiture action in Madison County against EBC's BBVA account on July 3, 2019. (Doc. 11-1). Despite the forfeiture action concerning EBC's bank account, the petition primarily details the allege gambling operations of Brighton Ventures. In fact, the petition only mentions EBC twice: once as a party “involved in the operations of . . . Brighton Ventures” and once as an entity that “may have an interest in the contents of the account.” (Doc. 11-1 at ¶¶ 3, 9) (emphasis added). The petition never explicitly identifies the accountholder of the account and never acknowledges the account belongs to EBC.

         Plaintiffs filed their first complaint in this court on July 10, 2019, as well as a simultaneous motion for a preliminary injunction to order the State to unfreeze EBC's bank account. (Docs. 1 & 2). Plaintiffs allege they learned of the State's forfeiture petition on July 19 and filed their first amended complaint that same day, incorporating the ongoing forfeiture proceeding into their allegations. (Doc. 11 at ¶ 31). Plaintiffs again amended their complaint on July 23, adding allegations of bad faith. (Doc. 15).

         The Attorney General moved to dismiss the complaint on July 24, arguing the court should abstain from exercising jurisdiction over this matter because it asks the federal court to intervene in an ongoing state judicial proceeding. (Doc. 17). Plaintiffs filed their response on July 25, and Attorney General Marshall filed a reply on July 31. (Docs. 22 & 24). The court considers the matter fully briefed and ripe for review.

         II. Standard of Review

         As an initial matter, whether courts should analyze the Younger abstention doctrine under Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6) is not entirely clear. Compare Fairfield Cmty. Clean Up Crew, Inc. v. Hale, 2:17-CV-308-LSC, 2017 WL 4865545, at *2-3 (N.D. Ala. Oct. 27, 2017) (applying Rule 12(b)(1) standard) with Cano-Diaz v. City of Leeds, Ala., 882 F.Supp.2d 1280, 1284-85 (N.D. Ala. 2012) (applying Rule 12(b)(6) standard). But, when a defendant makes a facial, rather than a factual, attack on subject matter jurisdiction under Rule 12(b)(1), the court applies a standard of review akin to that of Rule 12(b)(6). Carmichael v. Kellogg, Brown & Root Services, Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (“Facial challenges to subject matter jurisdiction are based solely on the allegations in the complaint. When considering such challenges, the court must, as with a Rule 12(b)(6) motion, take the complaint's allegations as true.”). The Attorney General's motion to dismiss references both Rule 12(b)(1) and (6), and its argument against the court exercising jurisdiction presents a facial attack, so the court applies Rule 12(b)(6) pleading standards to the motion.

         The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

         The court accepts well-pleaded factual allegations as true on a motion to dismiss, but legal conclusions unsupported by factual allegations are not entitled to ...


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