Sutton v. Leesburg, Alabama, Town of

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

LENA SUTTON, on behalf of ]

herself and those similarly situated, ]

]

Plaintiff, ]

]

v. ] 4:20-cv-00091-ACA

]

LEESBURG, ALABAMA, et al., ]

]

Defendants. ]

MEMORANDUM OPINION AND ORDER

Plaintiff Lena Sutton lent her car to a friend who, unbeknownst to her, used it

to carry drugs. After police officers from Defendant Town of Leesburg pulled her

friend over and found the drugs, Leesburg seized Ms. Sutton’s car and asked the

State of Alabama to institute civil forfeiture proceedings under Alabama Code § 20-

2-93. In accordance with that statute, Leesburg retained Ms. Sutton’s car during the

pendency of the civil forfeiture proceedings in state court, which took over a year to

complete and ended in a judgment in Ms. Sutton’s favor.

Near the end of the state civil forfeiture proceeding, Ms. Sutton filed this

federal putative class action against Leesburg. She seeks damages and a declaratory

judgment that Leesburg’s pre-judgment retention of seized property without a

probable cause hearing or other method for property owners to reclaim the property

is unconstitutional. Ms. Sutton does not name the State as a defendant, but she

claims that Leesburg’s practice of retaining property pre-judgment is part of a

conspiracy with the State to violate the Fourth, Eighth, and Fourteenth

Amendments.1

Because Ms. Sutton’s lawsuit challenges the constitutionality of a state

statute, the State intervened, under 28 U.S.C. § 2403(b), for the limited purpose of

“argument on the question of constitutionality.” The State has now moved to dismiss

the complaint, contending that issue preclusion requires the court to abstain under

the Younger abstention doctrine2; that even if issue preclusion does not apply, the

court should exercise its discretion to abstain under Younger; that the court must

dismiss the case because the State is a required and indispensable party under Federal

Rule of Civil Procedure 19(b) but that its sovereign immunity prevents its joinder;

that Alabama’s doctrine of claim preclusion bars the case; and that Ms. Sutton fails

to state a claim in any event. (Doc. 28).

Leesburg has separately filed a motion for judgment on the pleadings (doc.

31), making the same arguments as the State with respect to issue preclusion (doc.

32 at 6–13; doc. 37), and Ms. Sutton’s ability to state a claim about the availability

of a bond procedure (doc. 32 at 13–14). The court stayed briefing on Leesburg’s

1 Ms. Sutton’s complaint makes one passing reference to the Fifth Amendment. (Doc. 1 at

14). Even if that were enough to assert a claim under the Fifth Amendment, her brief concedes

that she cannot state a claim under the Fifth Amendment. (Doc. 34 at 25 n.3).

2 Younger v. Harris, 401 U.S. 37 (1971).

motion in the interest of addressing the State’s motion first. (Doc. 33). Now, having

considered the State’s motion, the court concludes that further briefing on

Leesburg’s motion is unnecessary because the resolution of the State’s arguments

applies equally to Leesburg’s motion.

The court GRANTS IN PART and DENIES IN PART the State’s motion to

dismiss and Leesburg’s motion for judgment on the pleadings. The court finds that

issue preclusion does not require it to abstain under Younger and that the court

should not abstain because there is no possibility that this case will interfere with

Ms. Sutton’s state court forfeiture proceedings. Furthermore, the State is not a

required party, so a Rule 19(b) dismissal is unwarranted. In addition, Alabama’s

doctrine of claim preclusion does not bar Ms. Sutton’s claims because she was the

prevailing defendant in the state court case.

On the merits, however, the court concludes that Ms. Sutton cannot state a

claim under the Fourth or Eighth Amendments, and therefore WILL DISMISS

those claims WITH PREJUDICE. The court also WILL DISMISS WITH

PREJUDICE the part of Ms. Sutton’s Fourteenth Amendment claim asserting that

either Leesburg or the statute fails to offer any method for forfeiture defendants to

reclaim their property during the forfeiture proceedings, because the statute plainly

provides for the execution of a bond in exchange for the property. However, the

court DENIES the motion to dismiss the Fourteenth Amendment claim with respect

to Ms. Sutton’s challenge to the lack of a prompt post-seizure probable cause hearing

because the State has not met its burden of making persuasive argument about why

that claim must fail as a matter of law.

I. BACKGROUND

As an initial matter, the State asserts that dismissal is proper for lack of subject

matter jurisdiction, under Federal Rule of Civil Procedure 12(b)(1), and for failure

to state a claim, under Rule 12(b)(6). (Doc. 28 at 3). The basis for the Rule 12(b)(1)

motion is the State’s contention that, under the Younger abstention doctrine, the

court should decline to exercise jurisdiction over the case. (See id. at 10–14). The

Eleventh Circuit has recently stated that the Younger abstention doctrine does not

implicate the court’s subject matter jurisdiction. See Walker v. City of Calhoun, 901

F.3d 1245, 1254 (11th Cir. 2018) (“Younger is based not on jurisdiction, but on the

principles of equity and comity.”) (quotation marks omitted); see also Tenet v. Doe,

544 U.S. 1, 6 n.4 (2005) (noting that courts may resolve the threshold question of

the applicability of the Younger doctrine “before addressing jurisdiction,” therefore

implying that the Younger doctrine does not operate as a jurisdictional bar); Tokyo

Gwinnett, LLC v. Gwinnett Cty., 940 F.3d 1254, 1266–67 (11th Cir. 2019) (using an

abuse-of-discretion standard to review a district court’s decision to abstain under

Younger). The court will therefore proceed under only Rule 12(b)(6).

In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim,

the court must accept as true the factual allegations in the complaint and construe

them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cty.,

685 F.3d 1261, 1265 (11th Cir. 2012). The court may also consider judicially

noticed documents “for the purpose of determining what statements the documents

contain and not to prove the truth of the documents’ contents.” Bryant v. Avado

Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999); see also United States ex rel.

Osheroff v. Humana Inc., 776 F.3d 805, 811 (11th Cir. 2015) (adopting Bryant

outside the securities context). Alabama’s motion to dismiss relies partly on state

and federal court records from two previous cases involving the same facts presented

by this case. (See Docs. 28-1, 28-2). The court takes judicial notice of these court

records and will incorporate them into the description of the underlying facts.3 See

Fed. R. Evid. 201(b).

1. The Statute

Before delving into the facts underlying this case, the court must give an

overview of the statute at issue in this case. Alabama’s civil forfeiture statute

provides for the civil forfeiture of vehicles used “to transport, or in any manner to

3 The State also contends that the court may consider the judicial records because they are

central to Ms. Sutton’s claims and she has not challenged their authenticity. (Doc. 28 at 5). The

court need not determine whether each of the documents is central to Ms. Sutton’s claims (as

opposed to the State’s defenses) because the court will consider them as judicially noticed

documents.

facilitate the transportation, sale, receipt, possession, or concealment of” controlled

substances. Ala. Code § 20-2-93(a)(5). Police may seize property without a warrant

incident to an arrest. Id. § 20-2-93(b)(1).

In cases involving a warrantless arrest, a judge or magistrate must, within 48

hours of the arrest, determine “whether probable cause exists to believe that the

defendant committed the charged offense.” Ala. R. Crim. P. 4.3(a)(iii) (emphasis

added). It is not clear what impact this determination might have on the retention of

property seized incident to the arrest.

In cases of property seized “unlawfully,” a person entitled to possession of the

property may file, in the criminal case, a motion for return of the property.

Ala. R. Crim. P. 3.13(a). This type of motion can succeed only if the movant proves

that the seizure itself was illegal. State v. Greenetrack, Inc., 154 So. 3d 940, 953

(Ala. 2014). And it ceases to be an option once the State or county district attorney,

see id. § 20-2-93(h), incorporating by reference id. § 28-4-286, institutes a civil

forfeiture proceeding, see id. § 20-2-93(d).

Once a civil forfeiture proceeding has begun, the property is “not . . . subject

to replevin,” Ala. Code § 20-2-93(d), a common law action for the return of goods

wrongfully taken. At that point, the only way a civil forfeiture defendant may obtain

her property during the pendency of the proceeding is by “execut[ing] a bond in

double the value of such property.” Id. § 20-2-93(h), incorporating by reference id.

§ 28-4-287; State v. Two White Hook Wreckers, __ So. 3d __, 2020 WL 7326386, at

*2 (Ala. Dec. 11, 2020) (holding that the double-value bond “is the exclusive method

by which a claimant may obtain seized personal property during the pendency of a

forfeiture action”).

To prevail in a civil forfeiture proceeding, the State must prove that the “act

or omission [giving rise to forfeiture] was committed or omitted with the knowledge

or consent of [the] owner or lienholder.” Ala. Code § 20-2-93(h). The property

owner may assert the affirmative defense that she is an innocent owner. Id. To

succeed on that defense, the owner must prove that she had no knowledge of the act

subjecting the property to forfeiture and “could not have obtained by the exercise of

reasonable diligence knowledge of the intended illegal use of the property so as to

have prevented such use.” Id.

While the action is pending, the property is “deemed to be in the custody of

the state, county, or municipal law enforcement agency.” Ala. Code § 20-2-93(d).

The entity having custody of personal property may put the property under seal,

move the property “to a place designated by it,” or move the property “to an

appropriate location for disposition in accordance with law.” Id. § 20-2-93(d)(1)–

(3). If the State prevails in the forfeiture action, it may, among other options, sell

the property. Id. § 20-2-93(e)(2). After paying for the cost of the proceedings, the

State must award the remaining proceeds of the sale to “the municipal law

enforcement agency or department” that participated in the investigation resulting in

the seizure. Id.

2. The Facts

On February 20, 2019, Ms. Sutton’s friend, Roger Maze, borrowed her car to

run an errand for her. (Doc. 1 at 5–6 ¶¶ 17–19; see also id. at 8 ¶ 25). As it turned

out, Mr. Maze was a drug dealer and, after he was pulled over for speeding, the

police searched the car and found methamphetamine. (Id. at 7 ¶¶ 20–21, 23). The

police arrested Mr. Maze and his passenger and seized the car. (Id. at 8 ¶ 25).

Ms. Sutton quickly informed Leesburg that she had nothing to do with

Mr. Maze’s crime and that she needed her car back, but Leesburg requested that the

State initiate a forfeiture action against her car. (Doc. 1 at 8–9 ¶¶ 29–35). The State

filed the forfeiture action against Ms. Sutton on March 6, 2019, two weeks after her

car was seized on February 20. (Id. at 10 ¶ 38; see also Doc. 28-1 at 4–6). The court

will refer to the civil forfeiture action as Sutton I.

Although Ms. Sutton was served with the complaint in Sutton I, she did not

appear in that case until May 1, 2019, the day the state court entered a default

declaratory judgment forfeiting the car to Leesburg. (Doc. 28-1 at 18, 34, 45). She

immediately moved to set aside the default, arguing in part that the lack of a timely

post-seizure hearing to determine whether Ms. Sutton’s car should be returned to her

violated her constitutional rights. (Id. at 47, 108–18).

On the same day as the entry of default judgment and Ms. Sutton’s motion to

set aside the default in Sutton I, Ms. Sutton filed a federal lawsuit against Alabama’s

Attorney General, asserting that Alabama’s civil forfeiture statute is unconstitutional

and seeking injunctive relief and declaratory judgment. Sutton v. Marshall, no. 4:19-

cv-00660-KOB, Doc. 1 (N.D. Ala. May 1, 2019). The court will refer to that federal

case as Sutton II.

In June 2019, as Sutton II was getting underway, the state court in Sutton I set

aside the default judgment and Ms. Sutton filed an answer. (Doc. 28-1 at 171–72).

In July 2019, Ms. Sutton served interrogatories on the State. (Id. at 186). The State

responded to the interrogatories later that month, providing no information but

indicating that “[a] response . . . [would] be forthcoming.” (Id. at 206–07). Nothing

further happened in that case until February 2020, when the state court set the case

for a trial to be held in April 2020. (Id. at 236).

In the meantime, in November 2019, the federal district court hearing

Sutton II determined that, in light of the ongoing state court proceedings in Sutton I,

the federal court should abstain under the Younger doctrine. Sutton v. Marshall, 423

F. Supp. 3d 1294 (N.D. Ala. 2019). It therefore dismissed Sutton II without

prejudice. Id.

In January 2020, while the state court proceeding in Sutton I was still pending,

Ms. Sutton filed this putative class action against Leesburg, seeking to certify a class

defined as “[a]ll persons who have had property seized by the Town of Leesburg,

Alabama, and where a Civil Forfeiture Action was instituted by the State of Alabama

beginning two (2) years before the filing of this action.” (Doc. 1 at 11 ¶ 43).

Proceeding under 42 U.S.C. § 1983, she asserts that Leesburg conspired with the

State to violate (1) the Fourth and Fourteenth Amendment by retaining seized

property before and during the pendency of civil forfeiture proceedings without

holding a prompt post-deprivation hearing (id. at 14–16 ¶¶ 51–57, 18 ¶ 67); and

(2) the Eighth Amendment by depriving property owners of their property during

the pendency of the forfeiture proceedings (id. at 16 ¶¶ 59–60). In addition to a

request for declaratory judgment, Ms. Sutton seeks compensatory and punitive

damages. (Id. at 18–19).

In February 2020, the state court in Sutton I set an April 2020 trial date. (Doc.

28-1 at 236). Before the trial, Ms. Sutton moved for summary judgment on the

ground that the State had no evidence she was involved in or even knew about

Mr. Maze’s illegal activity. (Id. at 238–44). In May 2020, the state court granted

summary judgment in Ms. Sutton’s favor and denied the State’s request for

forfeiture of the car (id. at 386).

Returning to this case, in October 2020, Ms. Sutton filed a belated notice

under Federal Rule of Civil Procedure 5.1 and 28 U.S.C. § 2403 that this action

questions the constitutionality of a state statute. (Doc. 24). After the court certified

to the Attorney General that this action raises a constitutional challenge to the civil

forfeiture statute, the State, without waiving its sovereign immunity, moved to

intervene for the limited purpose of filing a motion to dismiss. (Doc. 26). This court

granted the motion and the State filed the instant motion to dismiss. (Docs. 27, 28).

Leesburg soon followed with its motion for judgment on the pleadings. (Doc. 31).

II. DISCUSSION

The State moves to dismiss this case, contending that: (1) the federal doctrine

of issue preclusion mandates that this court abstain under the Younger doctrine

because the Sutton II court abstained; (2) even if issue preclusion does not apply, the

court should abstain; (3) under Rule 19(b), it is an indispensable party that cannot

be joined due to its sovereign immunity from suit; (4) Alabama’s doctrine of claim

preclusion bars this case; and (5) Ms. Sutton fails to state a claim. (Doc. 28).

Leesburg joins in the State’s arguments about the applicability of issue preclusion to

the Sutton II court’s abstention, as well as its argument about the part of Ms. Sutton’s

claim alleging that the statute does not provide for a bond procedure. (Docs. 32, 37).

Before the court addresses those arguments, it must clarify two things about

Ms. Sutton’s complaint. First, Ms. Sutton requests a declaratory judgment that the

civil forfeiture statute violates the “Fourth Amendment and Due Process Clauses of

the Fourteenth Amendment” by: (1) “failing to provide adequate and prompt post-

deprivation deprivation [sic] hearings to individuals whose property has been seized

and retained”; and (2) “retaining all seized property and without a prompt post-

seizure hearing.” (Doc. at 17–18). These requests are somewhat difficult to parse.

However, a careful reading of the complaint in conjunction with Ms. Sutton’s

other filings in this case reveals that the first request relates to the lack of a post-

seizure hearing about whether there is probable cause to believe the property is

subject to forfeiture. (See Doc. 1 at 14 ¶¶ 51–52; Doc. 22 at 2 ¶ 5). The second

request relates to a civil forfeiture defendant’s alleged inability to retrieve her

property while the forfeiture action is pending. (See Doc. 1 at 15 ¶ 55, 18 ¶ 68; Doc.

22 at 2 ¶ 5).

Second, Ms. Sutton’s brief in opposition to the motion to dismiss makes

references to requests for injunctive relief against the State. (See Doc. 24 at 24).

Ms. Sutton’s complaint does not actually make any request for injunctive relief,

instead requesting only declaratory judgment and damages from Leesburg. (See

Doc. 1 at 18–19). Ms. Sutton cannot add a request for injunctive relief or name a

new defendant via briefing in opposition to a motion to dismiss. See Gilmour v.

Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Accordingly, the

court will not address any requests for injunctive relief raised in briefing, but instead

only the requests for relief actually made in Ms. Sutton’s complaint.

With that understanding of Ms. Sutton’s complaint, the court turns to the

State’s arguments in support of dismissal.

1. Younger Abstention

First, the State contends that under the Younger abstention doctrine, this court

should abstain because (1) the Sutton II court abstained, thereby binding this court

under the doctrine of issue preclusion; and (2) although the state court proceedings

in Sutton I have now ended, they were still ongoing when Ms. Sutton filed this case.

(Doc. 28 at 10–14).

“Under Younger v. Harris and its progeny, federal district courts must refrain

from enjoining pending state court proceedings except under special circumstances.”

Old Republic Union Ins. Co. v. Tillis Trucking Co., 124 F.3d 1258, 1261 (11th Cir.

1997). “By abstaining from exercise of their jurisdiction, the federal courts promote

the value of comity between the states and the federal government and avoid

unnecessary determinations of federal constitutional questions.” Liedel v. Juvenile

Court of Madison Cty., 891 F.2d 1542, 1546 (11th Cir. 1990). But abstention is the

exception to the general rule that federal courts have a “virtually unflagging

obligation to exercise the jurisdiction given them.” 31 Foster Children v. Bush, 329

F.3d 1255, 1274 (11th Cir. 2003) (quoting Col. River Water Conservation Dist. v.

United States, 424 U.S. 800, 817 (1976)) (quotation marks and alteration omitted).

The Younger doctrine originally applied only to federal cases seeking to

enjoin state criminal proceedings, but it has been extended to apply to federal cases

seeking any form of relief that would “effectively” enjoin certain state court civil

proceedings. Republic Union Ins. Co., 124 F.3d at 1261. Where state court civil

proceedings are at issue, a court must consider whether (1) the federal proceeding

would interfere with the ongoing state judicial proceeding; (2) the state proceeding

implicates important state interests; and (3) the plaintiff has an adequate state

remedy available. 31 Foster Children, 329 F.3d at 1274–75. The Eleventh Circuit

has explained that a state court proceeding is considered “ongoing” if it was pending

at the time the plaintiff filed the federal complaint. Liedel, 891 F.2d at 1546 n.6.

But the court must decide whether to abstain based on the circumstances present at

the time of the decision. See Redner v. Citrus Cty., 919 F.2d 646, 649 n.5 (11th Cir.

1990).

a. Issue Preclusion

As an initial matter, the State contends that this court need not engage in any

analysis of whether to abstain under Younger because the Sutton II court’s decision

to abstain binds the court under the doctrine of issue preclusion. (Doc. 28 at 12–13).

Because the State seeks to use a federal decision based on a federal question to issue-

preclusive effect, this court must apply federal preclusion principles. CSX Transp.,

Inc. v. Bhd. of Maint. of Way Employees, 327 F.3d 1309, 1316 (11th Cir. 2003).

Under Eleventh Circuit law, issue preclusion prohibits a party from

relitigating an issue if four criteria are met: (1) “the issue at stake is identical to the

one involved in the prior proceeding”; (2) “the issue was actually litigated in the

prior proceeding”; (3) the determination of the issue in the prior litigation was a

“critical and necessary part of the judgment”; and (4) “the party against whom [issue

preclusion] is asserted . . . had a full and fair opportunity to litigate the issue in the

prior proceeding.” Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th

Cir. 1998) (quotation marks omitted). Where circumstances have materially

changed, issue preclusion does not apply. CSX Transp., Inc., 327 F.3d at 1317–18.

Here, it is unclear that the district court’s discretionary decision not to exercise

jurisdiction in Sutton II resulted in the type of judgment that would have preclusive

effect. But even assuming for the sake of simplicity that it did, the application of

issue preclusion is not appropriate in this case because the Younger issue presented

in Sutton II is not identical to the Younger issue presented in this case and the

circumstances have materially changed.

For one thing, although the underlying facts in this case and Sutton II are

identical up to a point, the analysis of whether Younger requires abstention is not.

In Sutton II, Ms. Sutton expressly sought various forms of injunctive relief against

Alabama’s Attorney General, including a court order requiring the State and local

law enforcement agents to “institute hearings” in all cases involving the forfeiture

of property and a preliminary injunction prohibiting the allegedly unconstitutional

“practices” complained of in these cases. Sutton II, no. 4:19-cv-00660-KOB, Doc.

14 at 17–18 (N.D. Ala. June 28, 2019). She also requested a declaratory judgment,

but no money damages. Id.

By contrast, in this case, Ms. Sutton seeks money damages and a declaratory

judgment, but no injunctive relief. (Doc. 1 at 18–19). Because an integral part of

the Younger analysis involves whether the relief sought in the federal case will

interfere with ongoing state court proceedings, the issue presented in Sutton II and

this case is not identical. Cf. CSX Transp. Inc., 327 F.3d at 1317 (“If we were bound

by broad legal decisions by other courts at a given level of abstraction out of the

facts of every similar case by the mere fact of an identical caption, the novel defense

of issue preclusion would serve to bind the adjudication of many more cases than

would serve the interests of justice and move outside the scope of the purposes of

[issue preclusion].”).

Even if the issues were identical, only “one material differentiating fact that

would alter the legal inquiry” is required to “overcome the preclusive effect” of an

earlier judgment. CSX Transp., Inc., 327 F.3d at 1317. When the Sutton II court

made its decision, the state court proceedings in Sutton I were still pending. Now

Sutton I has ended in Ms. Sutton’s favor. This change is material because the

potential for the federal court judgment to interfere with the state court proceedings

is of paramount importance in the Younger analysis. See Middlesex Cty. Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) (“Younger v. Harris . . .

and its progeny espouse a strong federal policy against federal-court interference

with pending state judicial proceedings absent extraordinary circumstances.”); 31

Foster Children, 329 F.3d at 1276 (“[A]n essential part of the . . . Younger abstention

analysis is whether the federal proceeding will interfere with an ongoing state court

proceeding. If there is no interference, then abstention is not required.”).

Accordingly, issue preclusion does not require this court to abstain under the

Younger doctrine, and the court must undertake its own analysis about whether to

abstain.

b. Whether to Abstain

A court considering whether to abstain must determine whether (1) the federal

proceeding would interfere with the ongoing state judicial proceeding; (2) the state

proceeding implicates important state interests; and (3) the plaintiff has an adequate

state remedy available. 31 Foster Children, 329 F.3d at 1274–75. There is no

dispute that the state civil forfeiture action in Sutton I is a state court civil proceeding

that involves important state interests. There is also no dispute that Sutton I was still

ongoing when Ms. Sutton filed this case, meaning that for purposes of the Younger

analysis, the court must consider Sutton I to be an ongoing state court proceeding.4

See Liedel, 891 F.2d at 1546 n.6.

4 The court notes, however, that in Liedel, the federal district court abstained ten days

before the state court hearing the plaintiffs sought to enjoin. 891 F.2d at 1544. The only order the

district court entered after the state court hearing was a denial of a motion to alter or amend, which

the district court issued during the period when the plaintiffs could still appeal the state court’s

However, the Eleventh Circuit has clearly instructed that a proceeding’s

ongoing nature is not enough to justify Younger abstention if the federal court’s

decision will not interfere with the proceeding. 31 Foster Children, 329 F.3d at

1275. And here, there is no possibility that this case could interfere with Sutton I

because Sutton I has ended with a final judgment in Ms. Sutton’s favor that the State

has not appealed. Even if Ms. Sutton were to prevail in this case and win both money

damages and a declaratory judgment, the federal judgment would have no effect on

the Sutton I proceeding or judgment.

Moreover, it is unclear that the declaratory relief sought in this case would

effectively enjoin civil forfeiture proceedings. As discussed above, Ms. Sutton seeks

a declaratory judgment about the unconstitutionality of the lack of (1) a prompt post-

seizure probable cause hearing and (2) a method for civil forfeiture defendants to

retrieve the property at issue during the forfeiture proceedings. In effect, she wants

a declaration that the State and Leesburg cannot hold onto the property during the

forfeiture proceedings unless they have shown probable cause and provided some

pre-judgment method for forfeiture defendants to obtain their property.

order. Id. at 1545. And the plaintiffs were still seeking to enjoin the future enforcement of orders

or the future issuance of orders relating to the state court proceeding. Id. at 1544; see also The

News-Journal Corp. v. Foxman, 939 F.2d 1499, 1506, 1510 (11th Cir. 1991) (affirming the district

court’s decision to abstain because the state court had before it a motion for reconsideration before

it when the federal court abstained). Thus, the underlying state court proceeding had not concluded

when the federal district court abstained.

Putting aside the merit of Ms. Sutton’s claims, the State has not persuaded this

court that the declaratory judgment Ms. Sutton seeks would effectively enjoin any

forfeiture proceedings. See Fuentes v. Shevin, 407 U.S. 67 72 n.3 (1972) (noting

that Younger did not bar an action seeking declaratory and injunctive relief against

the enforcement of a state’s prejudgment replevin statute because the lawsuit

“challenged only the summary extra-judicial process of prejudgment seizure of

property to which [the plaintiffs] had already been subjected”); Gerstein v. Pugh,

420 U.S. 103, 107–08 & 108 n.9 (1975) (holding that Younger abstention was not

required where the plaintiff in a class action sought an injunction requiring pretrial

probable cause hearings before a prosecutor could order the detention of criminal

defendants); see also Walker, 901 F.3d at 1254 (holding that Younger did not apply

where a plaintiff filed a class action seeking prompt bail determinations, because

requiring such a pretrial bail determination would not interfere with a subsequent

prosecution and the relief requested did not ask for “pervasive federal court

supervision” of the ongoing state proceedings). But in any event, the court does not

need to engage in that analysis at this point because, as discussed above, there is no

possibility that this case could interfere with Ms. Sutton’s forfeiture proceedings.

The court therefore declines to abstain under Younger.

2. Rule 19

Next, the State asserts that it is a required and indispensable party under Rule

19, but it cannot be joined to the suit because of its sovereign immunity, requiring

dismissal of the case. (Doc. 28 at 14–21). It emphasizes that although it intervened

in this case, it did so for the limited purpose of defending the constitutionality of

§ 20-2-93, and that intervening under 28 U.S.C. § 2403 does not subject it to

liability. (Id. at 14–15; Doc. 26).

Federal Rule of Civil Procedure 19 sets out the standard for determining

whether a party who has not been named in a case is nevertheless a “required party”

and, if it is, whether its absence from the case mandates dismissal.

Fed. R. Civ. P. 12; Fla. Wildlife Fed’n Inc. v. U.S. Army Corps of Eng’rs, 859 F.3d

1306, 1316 (11th Cir. 2017). Joinder of a party is required if (1) the party is subject

to service of process; (2) joinder will not deprive the court of subject matter

jurisdiction; and (3) the party “claims an interest relating to the subject of the action

and is so situated that disposing of the action in the person’s absence may . . . as a

practical matter impair or impede the person’s ability to protect the interest.”

Fed. R. Civ. P. 19(a)(1). “[P]ragmatic concerns, especially the effect on the parties

and the litigation, control this analysis.” Fla. Wildlife Fed’n, Inc. v. U.S. Army Corps

of Eng’rs, 859 F.3d 1306, 1316 (11th Cir. 2017) (quotation marks omitted). If a

required party cannot be joined in the action, “the court must determine whether, in

equity and good conscience, the action should proceed among the existing parties or

should be dismissed.” Fed. R. Civ. P. 19(b).

The State first argues that it is a required party because Ms. Sutton alleges that

Leesburg conspired with the State. (Doc. 28 at 15–16). But it points to no precedent

holding that a plaintiff must name as a defendant every participant in an alleged

conspiracy, and this court has found no such precedent.

The State next argues that because this lawsuit challenges the constitutionality

of a state statute and the State has an interest in defending the constitutionality of its

statutes, it is a required party. (Doc. 28 at 16–17). The court agrees that the State

“claims an interest relating to the subject of the action,” but concludes that it is not

“so situated that disposing of the action in the person’s absence may . . . as a practical

matter impair or impede the person’s ability to protect the interest.” Fed. R. Civ. P.

19(a)(1).

As the Second Circuit has explained, “[s]tate (and federal) statutes are

frequently challenged as unconstitutional without the state (or federal) government

as a named party.” Am. Trucking Ass’n, Inc. v. N.Y. State Thruway Auth., 795 F.3d

351, 359 (2d Cir. 2015). Section 2403(b), which permits the State to intervene

without subjecting it to liability, “contemplates such suits by providing a notice

mechanism and relaxed intervention rules for an absent sovereign in cases

challenging the validity of its laws.” Id. Here, the State has taken advantage of the

opportunity offered by § 2403(b) to intervene, without waiving its sovereign

immunity, in order to defend its interest in the case. As a practical matter, its

nonjoinder does not “impair or impede [its] ability to protect [its] interest.” Fed. R.

Civ. P. 19(a)(1).

The Eleventh Circuit’s decision in Florida Wildlife Federation, Inc., is not to

the contrary. In that case, the plaintiff challenged a federal agency’s management

of a state waterway as violating a federal statute through its violations of state law.

Fla. Wildlife Fed’n, Inc., 859 F.3d at 1308. A state agency moved to intervene so

that it could file a motion to dismiss. Id. at 1314. The district court denied the

motion to intervene and ultimately dismissed the case on a different ground. Id. at

1315. The Eleventh Circuit held that the district court should have dismissed the

action for failure to join the state agency, which was an indispensable party. Id. at

1316. The Court did not discuss § 2403(b)’s effect on the Rule 19 analysis, likely

because that case did not involve a challenge to the constitutionality of a state statute.

See 28 U.S.C. § 2403(b) (permitting the State to intervene in “any action, suit, or

proceeding . . . wherein the constitutionality of any statute of that State affecting the

public interest is drawn in question”).

Unlike Florida Wildlife Federation, Inc., the State in this case has the

statutory right to intervene to defend its interest, and it has taken advantage of that

right. The practical reality is that the State is well situated to protect its interest in

defending its civil forfeiture statute. Joinder as a party is unnecessary and the court

will not dismiss this action under Rule 19.

3. Claim Preclusion

Next, the State contends that Ms. Sutton’s constitutional claims are barred by

Alabama’s doctrine of claim preclusion because she either raised them or could have

raised them during the civil forfeiture proceedings in Sutton I. (Doc. 28 at 24–26).

Leesburg purports to join in the State’s motion to dismiss on this ground (doc. 37),

although its brief in support of the joinder addresses only the separate defense of

issue preclusion (doc. 38).

The court must apply Alabama law to determine the preclusive effect of an

Alabama state court judgment. Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306,

1308 (11th Cir. 2006). Under Alabama law, claim preclusion is an affirmative

defense which the party asserting it must prove. Bond v. McLaughlin, 229 So. 3d

760, 767 (Ala. 2017). Claim preclusion bars “any claim that was, or that could have

been, adjudicated in [a] prior action” where there is “(1) a prior judgment on the

merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity

of the parties, and (4) with the same cause of action presented in both actions.” Ex

parte Beck, 988 So. 2d 950, 954 (Ala. 2007) (quotation marks omitted).

Ms. Sutton argues that claim preclusion cannot bar her lawsuit because she

was the prevailing defendant in Sutton I. (Doc. 34 at 22–24). She is correct. The

Alabama Supreme Court has explained that, with two exceptions, claim preclusion

will not bar a successful defendant in an action from filing a later action bringing her

own claims based on the same facts:

As a general rule, where a defendant has an independent claim against

the plaintiff, such as might be either the basis of a separate action or

might be pleaded as a set-off or counterclaim, he is not obliged to plead

it in plaintiff’s action, although he is at liberty to do so, and if he omits

to set it up in that action, or if, although he introduces it in evidence in

rebuttal of plaintiff’s demand, it is not used as a set-off or counterclaim,

this will not preclude him from afterward suing plaintiff upon it, in the

absence of some statute to the contrary. But the rule does not apply

where the subject matter of the set-off or counterclaim was involved in

the determination of the issue in the former action in such wise that the

judgment therein necessarily negatives the facts on which defendant

would have to rely in order to establish his demand

Maxcy v. Twilley, 271 So. 2d 243, 244 (1972) (citing A.B.C. Truck Lines v. Kenemer,

25 So. 2d 511 (Ala. 1946)). In short, under Maxcy and Kenemer, claim preclusion

does not bar a prevailing defendant from filing her own claims against the losing

plaintiff unless (1) a statute specifically bars the assertion of the claim in a later

action or (2) the judgment in the earlier action establishes a fact that would

necessarily defeat the claim.5

5 Alabama law also provides that “failure to assert a compulsory counterclaim bars the

assertion of that claim in another action.” Brooks v. Peoples Nat. Bank of Huntsville, 414 So. 2d

917, 920 (Ala. 1982); Ala. R. Civ. P. 13(a). This rule derives from the doctrines of claim and issue

preclusion. See Ala. R. Civ. P. 13(a), committee comments. Rule 13 carves out several

exceptions, including what appears to be an exception for a prevailing defendant. See

Ala. R. Civ. P. 13(a) (“[R]elitigation of [an unasserted compulsory counterclaim] may be barred

by the doctrines of [claim preclusion] or [issue preclusion] by judgment in the event certain issues

are determined adversely to the party electing not to assert the claim.”) (emphasis added). In any

The State does not address the rule set out in Kenemer and Maxcy, arguing

that Alabama’s law on claim preclusion does not make an exception for prevailing

defendants. (See Doc. 28 at 24–26; Doc. 35 at 7–8). It points to a later Alabama

Supreme Court case in which a prevailing plaintiff was barred from bringing later

claims against the same defendant. Old Republic Ins. Co. v. Lanier, 790 So. 2d 922,

927–30 (Ala. 2000). Old Republic Insurance Company is entirely consistent with

Kenemer and Maxcy, and does not establish that Alabama courts have dispensed

with the “prevailing defendant” exception. See also Burdeshaw v. White, 585 So. 2d

842, 844 (Ala. 1991) (“The traditional [claim preclusion] case . . . involves prior

litigation between a plaintiff and a defendant, which is decided on the merits by a

court of competent jurisdiction, and then a subsequent attempt by the prior plaintiff

to relitigate the same cause of action against the same defendant, or perhaps to

relitigate a different claim not previously litigated but which arises out of the same

evidence. . . . If the plaintiff won, the claim is merged into the judgment; if the

defendant won, the plaintiff is barred from relitigating any matter which could have

been litigated in the prior action.”) (quotation marks omitted) (emphasis added).

Because the State does not acknowledge the “prevailing defendant”

exception, it also does not argue that Ms. Sutton’s claims are barred by a statute or

event, the State has not argued that Ms. Sutton’s current claims are barred under Rule 13 as

unasserted compulsory counterclaims, and it has therefore waived that argument.

that the judgment in Sutton I establishes a fact that would necessarily defeat

Ms. Sutton’s current claims. The State has therefore failed to carry its burden of

showing that it is entitled to the affirmative defense of claim preclusion.

4. Claim Splitting

In a footnote, the State makes a passing argument that the court must dismiss

this case under the claim splitting doctrine. (Doc. 28 at 26 n.9). The court disagrees.

The claim splitting doctrine prohibits a plaintiff from filing multiple lawsuits

against a defendant at the same time in the same court. See Vanover v. NCO Fin.

Servs., Inc., 857 F.3d 833, 841 (11th Cir. 2017) (“[P]laintiffs have no right to

maintain two actions on the same subject in the same court, against the same

defendant at the same time.”) (quoting Curtis v. Citibank N.A., 226 F.3d 133, 139

(2d Cir. 2000)). The prohibition against claim splitting “derives from the doctrine

of [claim preclusion],” id. at 840 n.3, but “claim splitting is more concerned with the

district court’s comprehensive management of its docket,” id. at 841. The decision

to dismiss for improper claim splitting is a discretionary one. Id. at 837.

Although Ms. Sutton has been involved in multiple lawsuits relating to the

same nucleus of operative fact, she has not engaged in impermissible claim splitting.

As an initial matter, it is not clear that a pending state court case can support the

dismissal of a federal case for claim splitting. See, e.g., Kanciper v. Suffolk Cty. Soc.

for the Prevention of Cruelty to Animals, Inc., 722 F.3d 88, 92 (2d Cir. 2013) (finding

that the district court abused its discretion by dismissing a case for claim splitting

based on the existence of a state court case involving the same subject matter

jurisdiction). But even if a state case could be the basis for a claim-splitting

dismissal, Sutton I cannot be because Ms. Sutton was not the plaintiff in that case.

See Vanover, 857 F.3d at 841. And Sutton II cannot be the basis for dismissal

because Ms. Sutton did not file this case until after the court dismissed Sutton II

without prejudice, so the two federal cases were never pending at the same time. See

id. The court will not dismiss the case for claim splitting.

5. Merits

Ms. Sutton challenges the enforcement of the civil forfeiture statute under the

Fourth, Eighth, and Fourteenth Amendments, arguing that Leesburg and the State’s

established procedure does not provide for a post-seizure probable cause hearing or

a method for forfeiture defendants to obtain their property during the pendency of

the forfeiture proceedings. The State contends that Ms. Sutton does not state a claim

because (1) the Fourth Amendment does not apply to civil forfeiture actions;

(2) Ms. Sutton received due process under the Fourteenth Amendment; and

(3) Ms. Sutton was not fined in violation of the Eighth Amendment. (Doc. 28 at 26).

As an initial matter, to the extent Ms. Sutton challenges the purported lack of

a method by which forfeiture defendants can obtain their property during the

pendency of the civil forfeiture proceeding, her claim must fail. As the court set out

above, and as the Sutton II court clearly explained in its decision, see Sutton, 423

F. Supp. 3d at 1298, the civil forfeiture statute provides a method for property

owners to reclaim their property by executing a double-value bond, Ala. Code § 20-

2-93(h), incorporating by reference id. § 28-4-287; Two White Hook Wreckers, __

So. 3d at __, 2020 WL 7326386, at *2. Ms. Sutton does not argue that requiring

payment of a bond that is twice the value of the property is unconstitutional; she

argues that no such option exists at all. (See Doc. 1 at 10 ¶ 41, 15 ¶ 55, 16 ¶ 57; see

also Doc. 34 at 4 (arguing that she had “no avenue to retrieve her vehicle” during

the pendency of the civil forfeiture proceedings)). Because it is clear from the face

of the statute that executing a double-value bond is a method by which forfeiture

defendants may reclaim property during the forfeiture proceedings, the court WILL

GRANT the State’s motion to dismiss and Leesburg’s motion for judgment on the

pleadings with respect to that claim. The court WILL DISMISS that claim WITH

PREJUDICE.

The rest of the court’s opinion will address only Ms. Sutton’s other theory—

that the lack of a prompt post-seizure probable cause hearing violates the

Constitution.

i. Fourth Amendment

Ms. Sutton claims that Leesburg’s “policy and practice” of not providing a

probable cause hearing violates the Fourth Amendment. (Doc. 1 at 18–19). The

State contends that Ms. Sutton does not state a claim under the Fourth Amendment

because the Fourth Amendment governs only the initial seizure and not the retention

of the property. (Doc. 28 at 27–28).

The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”

U.S. Const. amend. IV. A plaintiff may state a Fourth Amendment claim for an

unreasonable seizure of property and possibly even for retention of

unconstitutionally seized property. Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir.

2009); Bruce v. Beary, 498 F.3d 1232, 1248 (11th Cir. 2007) (stating that “the

continued retention of” property seized pursuant to an unlawful search “would be a

constitutional violation as well”); Barker v. Norman, 651 F.2d 1107, 1131 (5th Cir.

Unit A July 30, 1981) (“[C]ontinued retention by police officers of allegedly stolen

property, as distinct from the initial seizure of that property, may in some

circumstances be a constitutional deprivation.”). But a plaintiff cannot state a Fourth

Amendment claim based on the continued retention of legally seized property;

instead, such a claim “raises an issue of procedural due process under the Fourteenth

Amendment.” Case, 555 F.3d at 1330.

Ms. Sutton expressly does not challenge the constitutionality of the initial

seizure of her car. (Doc. 1 at 3 ¶ 7; see also Doc. 34 at 26). Her challenge to the

retention of her car therefore cannot implicate the Fourth Amendment. See Case,

555 F.3d at 1327; Byrd v. Stewart, 811 F.2d 554, 554–55 (11th Cir. 1987) (stating

that a challenge to the retention of property is properly brought as a procedural due

process claim). Accordingly, Ms. Sutton cannot state a claim under the Fourth

Amendment. The court WILL GRANT the motion to dismiss Ms. Sutton’s Fourth

Amendment claim and WILL DISMISS that claim WITH PREJUDICE.

ii. Fourteenth Amendment Due Process

Ms. Sutton claims that the lack of a prompt post-seizure hearing to determine

whether there is probable cause to believe the property is subject to forfeiture

violates the Fourteenth Amendment’s Due Process Clause. (Doc. 1 at 18–19). The

State contends that this does not state a due process claim because Ms. Sutton’s

forfeiture proceedings satisfied the requirements for a speedy trial, as required by

Barker v. Wingo, 407 U.S. 514 (1972), and any delay in the resolution of the merits

of the forfeiture action was due to Ms. Sutton’s own actions. (Doc. 28 at 29–33).

Ms. Sutton responds that she is not challenging how long it took to reach a final

judgment in the forfeiture proceedings, but instead the pre-judgment deprivation of

her property without a probable cause determination. (Doc. 34 at 27–30). She

argues that the court must conduct the due process balancing test set out in Mathews

v. Eldridge, 424 U.S. 319 (1976). (Id.).

The State’s reliance on Barker is misplaced. Ms. Sutton does not argue that

she was deprived of a speedy forfeiture proceeding. (See Doc. 1 at 18–19 (requesting

declaratory judgment that the lack of a post-seizure hearing is unconstitutional);

Doc. 34 at 27). Because she challenges the post-seizure retention of property, her

claim is one for a violation of her right to procedural due process. See also Case,

555 F.3d at 1330 (“A complaint of continued retention of legally seized property

raises an issue of procedural due process under the Fourteenth Amendment”); Byrd,

811 F.2d at 554–55.

A plaintiff asserting a procedural due process claim must show (1) “a

deprivation of a constitutionally-protected liberty or property interest”; (2) state

action; and (3) constitutionally inadequate process. Foxy Lady, Inc. v. City of

Atlanta, 347 F.3d 1232, 1236 (11th Cir. 2003). Under Mathews v. Eldridge, a court

evaluating whether a plaintiff received due process must consider: (1) “the private

interest that will be affected by the official action”; (2) “the risk of an erroneous

deprivation of such interest through the procedures used, and the probable value, if

any, of additional or substitute procedural safeguards”; and (3) the governmental

“interest, including the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail.” 424 U.S. at

335.

The State’s brief and cursory argument about the Mathews test (doc. 35 at 10–

11) is insufficient to carry its burden of showing that Ms. Sutton’s claim fails as a

matter of law. The court emphasizes that this ruling does not mean that Ms. Sutton

states a claim, but merely that the State’s motion is inadequate to support dismissal.

Accordingly, the court DENIES the motion to dismiss the Fourteenth Amendment

claim to the extent it challenges the lack of a prompt post-seizure hearing about

whether probable cause exists to believe that the property is subject to forfeiture.

iii. Eighth Amendment Excessive Fines Clause

Ms. Sutton claims that the retention of her car while the civil forfeiture

proceedings were ongoing was an excessive fine, in violation of the Eighth

Amendment, and that she can recover damages from Leesburg because it engaged

in a conspiracy with the State to violate that Amendment. (Doc. 1 at 16 ¶ 59, 19

¶ 3). The State contends that this claim fails because a “fine” under the Eighth

Amendment occurs only if the property is forfeited, but Ms. Sutton’s car was not

forfeited. (Doc. 28 at 33–34).

The Eighth Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.

amend. VIII. The Excessive Fines Clause is applicable to the States through the

Fourteenth Amendment. Timbs v. Indiana, 139 S. Ct. 682, 687 (2019). It is

axiomatic that an excessive fine claim requires the plaintiff to establish the existence

of both “(1) a fine and (2) excessive[ness].” United States v. 817 N.E. 29th Drive,

Wilton Manors, Fla., 175 F.3d 1304, 1309 (11th Cir. 1999). The only question

before the court on this claim is whether Ms. Sutton was “fined” when Leesburg

retained her car before the entry of judgment in the civil forfeiture proceeding. (See

Doc. 28 at 33–34). Ms. Sutton contends that even a temporary deprivation of the car

constitutes a “fine” for Eighth Amendment purposes. (Doc. 34 at 34–35).

The State has the better argument. Civil in rem forfeitures are considered

“fines” under the Eighth Amendment “when they are at least partially punitive.”

Timbs, 139 S. Ct. at 689; see also United States v. Browne, 505 F.3d 1229, 1281

(11th Cir. 2007) (“Forfeitures are subject to the Eighth Amendment’s prohibition

against excessive fines if they constitute punishment for an offense.”) (quotation

marks omitted). But Ms. Sutton does not cite to any cases finding that a pre-

judgment retention of property constitutes a “fine” where the property is not

ultimately forfeited, and this court has been unable to locate any decision holding

that retention of property during a civil proceeding—even a civil forfeiture

proceeding—can be considered a “fine.”

This makes sense. “[A]t the time the Constitution was adopted, the word

‘fine’ was understood to mean a payment to a sovereign as punishment for some

offense.” United States v. Bajakajian, 524 U.S. 321, 327 (1998) (emphasis added).

Forfeitures are “payments in kind.” Id. at 328; see also Austin v. United States, 509

U.S. 602, 609–10 (1993) (“The Excessive Fines Clause limits the government’s

power to extract payments, whether in cash or in kind, as punishment for some

offense.”) (emphasis added). But the pre-judgment retention of property is not

payment, even in kind, because ownership of the property does not change until after

the entry of a judgment.

Although Ms. Sutton did not have access to her property while Leesburg held

it, the property still belonged to her. Neither the State nor Leesburg has the power

to use or sell seized property until after it is forfeited. See Ala. Code § 20-2-93(d)

(permitting the entity holding the property pre-forfeiture to place the property under

seal, remove the property to a specific place, and in the case of real property, to post

a notice and record the seizure), id. § 20-2-93(e) (permitting the State, county, or

municipality to use or sell property only after the property has been forfeited). All

they can do is hold the property until a judgment has issued.

Leesburg’s pre-judgment retention of Ms. Sutton’s car cannot be considered

a “fine” as that word is used in the Eighth Amendment’s Excessive Fines Clause.

Accordingly, the court GRANTS the motion to dismiss and WILL DISMISS

Ms. Sutton’s excessive fine claim WITH PREJUDICE.

III. CONCLUSION

The court GRANTS IN PART and DENIES IN PART the State’s motion to

dismiss the amended complaint and Leesburg’s motion for judgment on the

pleadings. The court WILL DISMISS Ms. Sutton’s Fourth and Eighth Amendment

claims WITH PREJUDICE. The court also WILL DISMISS Ms. Sutton’s claim

that Leesburg or § 20-2-93 fails to provide a method by which a forfeiture defendant

may reclaim property during the pendency of the forfeiture proceeding. But the

court DENIES the motions with respect to Ms. Sutton’s Fourteenth Amendment

claim arising from the lack of a prompt post-seizure hearing about whether there is

probable cause to believe the property is subject to forfeiture.

The court will enter a partial judgment consistent with this memorandum

opinion and order.

DONE and ORDERED this April 6, 2021.

ba

UNITED STATES DISTRICT JUDGE

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