United States District Court, N.D. Alabama, Northeastern Division
BRUCE PETTWAY and EMPLOYER BENEFITS CONSULTING, LLC, Plaintiffs,
ATTORNEY GENERAL STEVE MARSHALL, in his individual and official Capacities; and BBVA COMPASS BANK, Defendants.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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).
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).
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).
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.
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).
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
Standard of Review
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.
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
court accepts well-pleaded factual allegations as true on a
motion to dismiss, but legal conclusions unsupported by
factual allegations are not entitled to ...