Beaulieu et al v. Alabama Onsite Wastewater Board et al

Filing 22

MEMORANDUM OPINION AND ORDER re 9 Motion to Dismiss filed by Defendants Alabama Department of Public Health, Donald Williamson, and William Allinder and 14 Motion to Dismiss filed by Defendants Alabama Onsite Wastewater Board, Carolyn Gibson, and Melissa Hines. The Defendants' motions to dismiss are GRANTED and Plaintiffs' federal claims are DISMISSED WITH PREJUDICE. All of Plaintiffs' claims pursuant to Alabama law are DISMISSED WITHOUT PREJUDICE. An appropriate judgment will be entered. Signed by Hon. Chief Judge Mark E. Fuller on 3/13/2009. (dmn)

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IN THE UNTIED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION H E N R I N. BEAULIEU, SR. et al., P l a i n t if f s , v. A L A B A M A ONSITE WASTEWATER B O A R D , et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) CASE NO. 2:08-cv-432-MEF (W O ) MEMORANDUM OPINION AND ORDER I . INTRODUCTION T h is action is presently before the Court on Defendants Alabama Department of P u b lic Health, Donald Williamson, and William Allinder's Motion to Dismiss (Doc. #9) a n d a Motion to Dismiss (Doc. #14) filed by Defendants Alabama Onsite Wastewater B o a rd , Carolyn Gibson, and Melissa Hines. Both these motions seek dismissal on g ro u n d s of failure to state a claim, abstention, and other grounds. Plaintiffs' Complaint (D o c . #1) filed on June 5, 2008, seeks declaratory and injunctive relief for alleged v io la tio n s of constitutional rights pursuant to 42 U.S.C 1983, resulting in deprivation of a property interest. After careful review of the submissions made by the parties, the Court f in d s that the motions to dismiss are due to be GRANTED. II. JURISDICTION AND VENUE T h e parties have not disputed that this Court has subject matter jurisdiction over th is case which asserts claims pursuant to 42 U.S.C. 1983. See U.S.C. 1331. A d d itio n a lly, Defendants have not argued that the Court does not have personal ju ris d ic tio n over each of them. There is no dispute over whether venue is appropriate. I I I . RULE 12(B)(6) STANDARD A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Prior to the S u p r e m e Court's recent decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), a m o tio n to dismiss could only be granted if a plaintiff could prove "no set of facts . . . w h ic h would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see a ls o Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Wright v. Newsome, 795 F.2d 9 6 4 , 967 (11th Cir. 1986). In order to survive a motion to dismiss for failure to state a c la im , the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 544. While the factual allegations of a complaint need not be detailed, a plaintiff must nevertheless "provide the `grounds' of his `entitlement to relief' and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965. The plaintiff's "[f]actual allegations must be enough to raise a right to relief above a speculative level on the assumption that the allegations in the complaint are true." Id. It is not sufficient that the pleadings merely "le[ave] open the possibility that the plaintiff might later establish some set of undisclosed facts to support recovery." Id. at 1968 (internal quotation and alteration omitted). In considering a defendant's motion to dismiss, a district court will accept as true all well-pleaded factual allegations and view them in a light most favorable to the plaintiff. See Am. United Life Ins. Co. v. Martinez, 2 480 F.3d 1043, 1057 (11th Cir. 2007). Accord, Nelson v. Campbell, 541 U.S. 637, 640 (2004) (where a court is considering dismissal of a complaint at the pleading stage, it must assume the allegations of the complaint are true). I V . FACTUAL BACKGROUND 1 P la in tif f s Henri Beaulieu, Sr. ("Beaulieu Sr.") and Henri Beaulieu, Jr. ("Beaulieu J r." ) (collectively "Plaintiffs") sued Alabama Onsite Water Board ("AOWB"), Carolyn G ib s o n , AOWB Chairperson, Melissa Hines, AOWB Executive Director, Alabama D e p a rtm e n t of Public Health ("ADPH"), Donald Williamson, ADPH State Health O f f ice r, and William Allinder, ADPH Environmental Director, (collectively " D e f en d a n ts " ) for violations of their constitutional rights pursuant to 42 U.S.C. 1983 (" s e c tio n 1983"). Beaulieu Sr. owns property in Chilton County, AL. He intends to build cottages o n his property to supplement his retirement income with rental income. Accordingly, he w o u ld like to install onsite wastewater systems for the cottages himself. His son, B e a u lie u Jr., would like to help him with the installations free-of-charge. A O W B establishes the licensing qualifications of individuals who install onsite w a s te w a te r systems. See Ala. Code 34-21A-1 (1975). AOWB also determines whether a n individual is appropriately licensed or exempted from its requirements. See Ala. Code 34-21A-7(1). Thus, AOWB only permits appropriately licensed individuals to install Due to the procedural posture of this case, the facts set forth herein are taken from the allegations of the Complaint. 3 1 w a ste w a te r systems. An Alabama statutory provision exempts property owners from A O W B 's licensing requirements when installing onsite wastewater systems on their p ro p e rty "for their own occupancy or use".2 Ala. Code 34-21A-10 (hereinafter "section 3 4 -2 1 A -1 0 ") . AOWB told Beaulieu Sr. that section 34-21A-10 did not apply to him b e c a u s e the exemption only applied when property owners installed wastewater systems o n their primary residence. Plaintiffs interpret section 34-21A-10's exemption from A O W B licensing requirements as applying whenever property owners install wastewater system s for any use on their own property. AOWB also informed Beaulieu Sr. that he w o u ld be subject to arrest if he, as an unlicensed individual, installed the wastewater s ys te m s himself on his property. ADPH is a state agency who issues an "Approval for Use"for onsite wastewater s ys te m s installed by AOWB licensed individuals. Ala. Admin. Code r. 420-3-1-.95 (2 0 0 7 ). ADPH told Beaulieu Sr. that it would not inspect his property and issue an " A p p r o v a l for Use" if he installed wastewater systems on his property himself because A O W B did not deem him an appropriately licensed individual. As a result of AOWB and 2 Ala. Code 34-21A-10 reads in its entirety: "The licensing requirements of this chapter shall not apply to owners of property acting as their own contractors for the purpose of installing, cleaning, servicing, or maintaining an onsite wastewater system on their own property with a one-family or two-family residence used for their own occupancy or use so long as the owners of said property with an onsite wastewater system do not hire or compensate anyone to supervise or perform any part of the installation, cleaning, servicing, or maintenance of the onsite wastewater system or equipment located on their property." Id. (emphasis added). 4 A D P H 's decisions, Beaulieu Sr. has not built onsite wastewater systems on his property. V . DISCUSSION A . Failure to State a Claim D e f en d a n ts argue that Plaintiffs' Complaint fails to state a claim upon which relief c a n be granted and seek dismissal of this action pursuant to Federal Rule of Civil P r o c e d u re 12(b)(6). Plaintiffs assert that they have stated claims for relief under section 1 9 8 3 and seek a denial of Defendants' motions. The Court addresses Plaintiffs' claims as a lle g e d in the Complaint and finds that the claims fail to state a claim upon which relief m a y be granted. 1. Section 1983 Claims S e c tio n 1983 provides a remedy when a person acting under color of state law d e p riv e s a plaintiff of a right, privilege, or immunity secured by the Constitution, laws, or tre a tie s of the United States. See, e.g., 42 U.S.C. 1983; Graham v. Connor, 490 U.S. 3 8 6 , 393-94 (1989) (stating that "section 1983 is not itself a source of substantive rights, b u t merely provides a method for vindicating federal rights elsewhere conferred") (in te rn a l quotes omitted). Pursuant to section 1983, Plaintiffs' claims for relief allege that D e f en d a n ts ' interpretation of section 34-21A-10 violated their due process rights secured 5 b y the Fifth3 and Fourteenth4 Amendments to the United States Constitution. Plaintiffs a lle g e that Defendants have deprived them of their due process rights because section 342 1 A -1 0 created a "legitimate claim of entitlement and expectancy of benefit" that D e f e n d a n ts subsequently denied them. (Doc. #16 pg. 7.) According to Plaintiffs' in ter p re tatio n of the provision, section 24-21A-10 gave Beaulieu Sr. a "right to use his p ro p e rty for his own profit." Id. T o state a claim for relief under section 1983, Plaintiffs must allege that D e f en d a n ts , acting under color of state law, deprived them of a right secured by the due p ro c e s s clauses. See, e.g., Am. Mfgs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). In this case, there is no dispute that Defendants acted under color of state law. Thus, the iss u e before this Court is whether Defendants' refusal to allow Plaintiffs to install w a ste w a te r systems on their property themselves, as unlicensed individuals, deprived P la in tif f s of a federally protected due process right. The Court addresses this issue. a. Substantive Due Process In the Complaint, Plaintiffs allege a violation of the due process clauses in the F o u r te e n th and Fifth Amendments of the U.S. Constitution ("due process clauses"). The d u e process clauses prohibit any government action that deprives a person of property The Fifth Amendment commands the federal government that "No person shall be ... deprived of life, liberty, or property, without due process of law..." U.S. Const. amend. V. The Fourteenth Amendment provides, in relevant part: "nor shall any State deprive any person of life, liberty, or property, without due process of law. " U.S. Const. amend. XIV. 6 4 3 w ith o u t due process of law. See U.S. Const. amends. V& XIV. The Court recognizes th a t the due process clauses provide two types of constitutional protections: procedural d u e process and substantive due process. "A violation of either ... may form the basis for a suit under section 1983." McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994). Plaintiffs do not clarify whether their claims are substantive or procedural due process c la im s and often confuse the concepts. For example, Plaintiffs argue that section 34-21A1 0 is "not narrowly tailored, has no rational basis, and serves no state interest compelling o r otherwise," which suggests Plaintiffs allege a violation of their substantive due process rig h ts . (Doc. #1 pg. 4.) Plaintiffs also cite United States Supreme Court procedural due p ro c e s s cases in their briefs. See Doc. # 16, pg. 8 (citing Bd. of Regents v. Roth, 408 U.S. 5 6 4 (1974); Morrisey v. Brewer, 408 U.S. 471 (1972); Goldberg v. Kelly, 397 U.S. 254 (1 9 7 0 )). Accordingly, this Court will first analyze Plaintiffs' claims as substantive p ro c e d u ra l due process claims. It will then consider whether Plaintiffs' Complaint states a procedural due process claim. In substantive due process cases, a court must first identify the right at issue and th e n apply the appropriate level of scrutiny. If the statute does not implicate a f u n d a m e n ta l right or target a suspect class, then courts must apply rational basis scrutiny. Romer v. Evans, 517 U.S. 620 (1996) ("[I]f a law neither burdens a fundamental right nor tar g e ts a suspect class, we will uphold the [law] so long as it bears a rational relation to so m e legitimate end."); see, e.g., Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000) 7 (a p p lyin g rational basis scrutiny to a city ordinance prohibiting "camping" on public p ro p e rty). A statute is constitutional under rational basis scrutiny so long as "there is any re a so n a b ly conceivable state of facts that could provide a rational basis for the [statute]." FCC v. Beach Comm'ns, Inc., 508 U.S. 307, 313 (1993). H e re , Plaintiffs challenge the validity of section 34-21A-10 "as-applied" to them b e c a u s e they seek to vindicate their own rights. Da Mortg., Inc. v. City of Miami Beach, 4 8 6 F.3d 1254, 1262 (11th Cir. 2007). Plaintiffs allege section 34-21A-10 deprives B e a u lie u Sr. of "the legitimate use of his property" because he cannot install wastewater s ys te m s on his property himself. (Doc. #1, pg. 18). Because there is no fundamental r ig h t to install a wastewater system on one's property free from licensing requirements, th e Court applies rational basis scrutiny to challenge the constitutionality of section 342 1 A -1 0 . Defendants argue that the State of Alabama maintains a human and environment h ea lth interest in the regulation of properly installed wastewater systems. The Court a g re e s that section 34-21A-10 bears a rational relation to promoting human and e n v iro n m e n t health in the State of Alabama. Because section 34-21A-10 is constitutional a s applied to Plaintiffs, the Court finds that Plaintiffs' claims do not state a substantive d u e process violation. b . Procedural Due Process In procedural due process cases, a court must first ask whether the claim involves a n interest protected by the due process clauses. See Conn. Dep't of Public Safety v. Doe, 8 5 3 8 U.S. 1, 8 (2003); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999); C o le m a n v. Director, OWCP, 345 F.3d 861 (11th Cir. 2003). In this Circuit, a section 1 9 8 3 claim alleging a denial of procedural due process requires proof of three elements: (1 ) a deprivation of a constitutionally-protected liberty or property interest; (2) state a c tio n ; and (3) constitutionally-inadequate process. Cryder v. Oxendine, 24 F.3d 175, 177 (1 1 th Cir. 1994). Therefore, this Court must first determine whether Plaintiffs' claims in v o l v e an interest protected by the due process clauses. T h e United States Supreme Court has developed an approach to procedural due p ro c e ss cases that affords different levels of protection to government legislative actions a n d government adjudicative actions. See Londoner v. City & County of Denver, 210 U .S . 373 (1908); Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441 (1 9 1 5 ). An action is legislative when a governmental body enacts a law of general a p p lic a b ility in its legislative capacity. Bi-Metallic, 239 U.S. at 446 (viewing a State B o a rd of Equalization order which required an "across-the-board" increase in assessed v a lu e of taxable property and applied equally to all landowners in Denver as a legislative a c t). A government action is adjudicative when a law is not generally applicable; for e x a m p le , when a city council makes determinations based on individualized grounds. Londoner, 210 U.S. at 380. U n d e r the Supreme Court's due process approach, property owners are not g e n e ra lly entitled to procedural due process if the government action is legislative 9 b e c a u s e the legislative process provided the property owners with sufficient due process p ro te c tio n . 75 Acres, LLC v. Miami-Dade County, Fla., 338 F.3d 1288, 1294 (11th Cir. 2 0 0 3 ) (noting that "[w]hen the legislature passes a law which affects a general class of p e rs o n s , those persons have all received procedural due process-the legislative process") (q u o tin g Ronald E. Rotunda & John E. Nowak, Treatise on Constitutional Law 17.8 (3d ed .1 9 9 9 )). In contrast, if government conduct is adjudicative in nature, property owners m a y be entitled to procedural due process beyond that which already has been given. Id. a t 1294. T h e Eleventh Circuit has acknowledged the distinction between legislative and a d ju d ic a tiv e action and has applied this principle in procedural due process cases. See, e .g ., 75 Acres, LLC, 338 F.3d at 1294; Peterman v. Coleman, 764 F.2d 1416, 1419 (11th C ir. 1985); Couf v. DeBlaker, 652 F.2d 585, 590 (5th Cir. 1981); South Gwinnett Venture v . Pruitt, 491 F.2d 5, 7 (5th Cir. 1974) (en banc).5 In 75 Acres, LLC, a real estate d e v e lo p e r brought a section 1983 action against Miami-Dade county, alleging that a c o u n ty code provision requiring the county manager to impose a building moratorium on c e rta in parcels of real property violated the due process clause. Id. at 1290. The Circuit h e l d that the imposition of moratorium did not implicate due process protections because it was a legislative act. Id. at 1291. The Circuit reasoned that the moratorium was In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions issued prior to the close of business on September 30, 1981. 10 5 le g is la tiv e because it was generally applicable and prospective in nature. Id. at 1294. Importantly, the Circuit noted that the real estate developer did not seek a hearing at w h ic h the Miami-Dade county manager would make a factual determination. Id. at 1297. H e re , Plaintiffs argue that they had a property right in installing a wastewater s ys te m themselves because they interpret section 34-21A-10 as exempting Plaintiffs from A O W B 's licensing requirements. Plaintiffs further contend that Defendants' actions p ro h ib itin g them from installing wastewater systems themselves denied them due process. Section 34-21A-10 is generally applicable and prospective in nature. In addition, the C o u rt notes that Plaintiffs did not seek a hearing at which AOWB would make a factual d e te rm in a tio n whether Plaintiffs fit into section 34-21A-10's exemption provision. Plaintiffs instead sought injunctive and declaratory relief. Therefore, the Court classifies A O W B 's application of section 34-21A-10 to Plaintiffs' property as a legislative act and f in d s that Plaintiffs are not entitled to additional due process. Consequently, Plaintiffs c a n n o t establish that their interest in installing wastewater systems constitutes a sufficient p ro p e rty interest to give rise to a due process claim.6 Plaintiffs cite Roth v. Board of Regents, 408 U.S. 564 (1972), for the proposition that they have a property interest in self-installing a wastewater system on their property. In Roth, the United States Supreme Court considered whether a university deprived an untenured professor of a property interest when it refused to renew his employment contract. Id. at 576. The Supreme Court held that the untenured professor did not have a protected property interest because his interest was not based upon "a legitimate claim of entitlement." Id. at 577. Here, Plaintiffs argue that Defendants' refusal to exempt them from a license requirement was a deprivation of their property because they expected the statutory exemption to apply to them. (Doc. #16, pg. 7.) The Court disagrees. Plaintiffs' expectation that section 34-21A-10 would apply to them is based solely on their interpretation of the provision. As a result, Plaintiffs did not have a "legitimate 11 6 B . Abstention T h e foregoing analysis constitutes adequate grounds on which to grant the motions to dismiss all of Plaintiffs' claims. In addition to arguing failure to state a claim as a g ro u n d for dismissal, Defendants argue that this action must be dismissed under the P u llm a n abstention doctrine. The Court agrees. In Siegel v. LePore, 234 F.3d 1163, 1 1 7 4 (11th Cir. 2000) (en banc), the Eleventh Circuit described its approach to Pullman a b ste n tio n : Under the Pullman abstention doctrine, a federal court will defer to state c o u rt resolution of underlying issues of state law. Two elements must be m e t for Pullman abstention to apply: (1) the case must present an unsettled q u e stio n of state law, and (2) the question of state law must be dispositive o f the case or would materially alter the constitutional question presented. T h e purpose of Pullman abstention is to avoid unnecessary friction in f e d era l-s ta te functions, interference with important state functions, tentative d e c is io n s on questions of state law, and premature constitutional a d ju d ica tio n . Because abstention is discretionary, it is only appropriate w h e n the question of state law can be fairly interpreted to avoid a d ju d ic a tio n of the constitutional question. Id. F irs t, the Court must consider whether a case meets the two requirements of Pullman a b s te n tio n . Pittman v. Cole, 267 F.3d 1269, 1288 (11th Cir. 2001). Second, the Court s h o u ld "take into account the nature of the controversy and the importance of the right a lle g e d ly impaired" in determining whether to abstain. Siegel, 234 F.3d at 1174 (finding th a t abstention was less appropriate in context of voting rights). For example, claim of entitlement" that they would be exempted from Defendants' license requirements and did not have a property interest subject to due process protections. 12 " [ a]b s te n tio n is to be invoked particularly sparingly in actions involving alleged d e p riv a tio n s of First Amendment rights." Pittman, 267 F.3d at 1287 (citing Cate v. O ld h a m , 707 F.2d 1176, 1184 (11th Cir. 1983)). In sum, "[i]f the germane state law q u e stio n s are novel or unsettled, principles of federalism counsel in favor of allowing s ta te courts, instead of federal courts, to interpret and define state law before the federal c o u rts subject the state law to federal constitutional scrutiny." Id. at 1287 (citing Allstate In s. Co. v. Serio, 261 F.3d 143, 149 (2d Cir. 2001)). That goal may be accomplished th ro u g h Pullman abstention. Id. H e re , the Court finds that Pullman abstention applies because this case presents an u n s e ttle d question of state law and that question of state law is dispositive to the case. The Alabama law is unsettled because no Alabama court has interpreted section 34-21A1 0 . Further, the text of section 34-21A-10 is unclear. Plaintiffs interpret section 34-21A1 0 as an exemption from AOWB licensing requirements for property owners installing w a ste w a te r systems on their property for any use. In contrast, Defendants interpret se c tio n 34-21A-10 as an exemption from AOWB requirements only when a property o w n er is installing a wastewater system on their primary residence. The statute's m e a n in g is dispositive to Plaintiffs' claims because Plaintiffs' claims would be resolved if a court interpreted section 34-21A-10 as Plaintiffs interpret it. Therefore, this case meets the two requirements of Pullman abstention. Further, the Court recognizes that the nature o f this case and the importance of the right allegedly impaired favor abstention. This case 13 a s k s the Court to interpret a state statute and involves a right to install wastewater systems fre e of state licensing requirements.7 Abstention in this case would allow the state court to resolve state law issues that could moot the need for further proceedings in the federal c a s e . The Court has already found that Plaintiffs' claims do not state a due process v i o la tio n and must be dismissed. On alternative grounds, this Court finds this action must b e dismissed under the Pullman abstention doctrine. C. Claims Pursuant to State Law In addition to Plaintiffs' claims pursuant to 42 U.S.C. 1983, Plaintiffs allege c la im s pursuant to Alabama law.8 This Court has supplemental subject matter jurisdiction o v e r these claims pursuant to 28 U.S.C. 1367. The statutory provision addressing su p p lem e n tal jurisdiction provides that (a) Except as provided in subsections (b) and (c) or as expressly provided o th e rw ise by Federal statute, in any civil action of which the district courts h a v e original jurisdiction, the district courts shall have supplemental ju ris d ic tio n over all other claims that are so related to claims in the action w ith in such original jurisdiction that they form part of the same case or c o n tro v e rs y under Article III of the United States Constitution. 28 U.S.C. 1367(a). Thus, Section 1367(a) provides a basis for this Court to exercise Plaintiffs do not allege that Defendants are prohibiting them from installing wastewater systems on their property. Instead, Plaintiffs allege that Defendants are prohibiting them from installing wastewater systems on their property themselves. In the Complaint filed on June 5, 2008, Plaintiffs argue that this Court has supplemental jurisdiction over their state law claims. (Doc. #1 pg. 5.) Notably, the Court could not identify any state law claim in the Complaint. Out of an abundance of caution, however, this Court will now address whether to exercise supplemental jurisdiction over such claims to the extent they actually exist. 14 8 7 ju ris d ic tio n over Plaintiffs' claims pursuant to Alabama law because it has jurisdiction o v e r their claim pursuant to 42 U.S.C. 1983. However, the requirement contained in 1 3 6 7 (a ) that this Court exercise its supplemental jurisdiction over Plaintiffs' state law c la im s is subject to certain enumerated instances in which it is appropriate for a federal c o u r t to decline to exercise its supplemental jurisdiction over a case. Those c irc u m s ta n c es are set forth in Section 1367(c), which provides that T h e district courts may decline to exercise supplemental jurisdiction over a c la im under subsection (a) if (1 ) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over w h ic h the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original ju ris d ic tio n , or (4 ) in exceptional circumstances, there are other compelling reasons for d e c lin in g jurisdiction. 2 8 U.S.C. 1367(c). The Court finds that the federal claims over which this Court had o rig in a l jurisdiction have now been resolved against Plaintiffs. Pursuant to 28 U.S.C. 1 3 6 7 ( c )( 3 ), the Court declines to exercise supplemental jurisdiction over Plaintiffs' c laim s pursuant to Alabama law. All of Plaintiffs' claims pursuant to Alabama law, to th e extent any have been stated, will accordingly be DISMISSED WITHOUT P R E J U D IC E . This dismissal should not work to Plaintiffs' disadvantage should they e lec t to bring suit in state court because the period of limitations for any of these claims is to lle d during the pendency of this action. See 28 U.S.C. 1367(d). 15 V . CONCLUSION F o r the foregoing reasons, the Defendants' motions to dismiss are GRANTED and P la in tif f s ' federal claims are DISMISSED WITH PREJUDICE. All of Plaintiffs' claims p u rsu a n t to Alabama law are DISMISSED WITHOUT PREJUDICE. An appropriate ju d g m e n t will be entered. D O N E this the 13 th day of March, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 16

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