Chantilly Store ALL LLC v. Spear et al

Filing 29

MEMORANDUM OPINION AND ORDER directing that the Defendants' 24 Motion to Dismiss is GRANTED in its entirety and Plaintiff's suit is DISMISSED. Signed by Hon. Chief Judge Mark E. Fuller on 10/22/10. (Furnished to KG.) (Attachments: # 1 Civil Appeals Checklist)(scn, )

Chantilly Store ALL LLC v. Spear et al

Doc. 29

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION C H A N T IL L Y STORE ALL, LLC, P la in tif f , v. S A R A H SPEAR, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C A S E NO. 2:09-cv-921-MEF-CSC (W O - Do Not Publish)

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION C han tilly Store All, LLC ("Plaintiff") brings this suit against Sarah G. Spear ("Spear") in her individual capacity and in her official capacities as the Revenue Commissioner of M o n tg o m e ry County, Alabama ("Revenue Commissioner") and as Secretary of the Board of E q u a l i z a t io n of Montgomery County, Alabama ("Secretary of BOE")1 ; John Ashmore ( " A s h m o r e " ) in his individual capacity and in his official capacity as Chief Clerk of the R e v e n u e Department ("Chief Clerk"); and Debbie Richardson ("Richardson") in her in d iv id u a l capacity and in her official capacity as an Alabama Certified Appraiser for the M o n tg o m e ry County Appraisal Department ("Certified Appraiser") (collectively, " D e f e n d a n ts " ). (Doc. #23). Defendants filed a motion to dismiss pursuant to Rule 12(b)(6)

ALA . CODE § 40-3-6 requires that the county tax assessor, or in this case the county Revenue Commissioner, serve as Secretary of the county's Board of Equalization. Because her service as Secretary was an extension of her duties as Revenue Commissioner, it has no effect on the subsequent analysis of her status as either state or county official. -1-

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of the Federal Rules of Civil Procedure. (Doc. #24). For the reasons set forth in this M e m o ra n d u m Opinion and Order, that motion will be GRANTED. I I . JURISDICTION AND VENUE T h is Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1 3 3 1 , 1367, 1441, and 1446. The parties do not assert that this Court lacks personal ju ris d ic tio n over them, and there is no dispute that venue is proper pursuant to 28 U.S.C. § 1 3 9 1 (b ) .2 II I . LEGAL STANDARD A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Therefore, for the p u rp o s e s of adjudging a Rule 12(b)(6) motion to dismiss, the court will accept as true all w e ll-p le a d e d factual allegations and view them in the light most favorable to the plaintiff. See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008); Am. United Life Ins. Co. v . Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). W h ile Federal Rule of Civil Procedure 8(a)(2) requires only that a complaint contain " a short and plain statement of the claim showing that the pleader is entitled to relief," as a g e n e ra l matter, to survive a motion to dismiss for failure to state a claim, the plaintiff must a lle g e "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v . Twombly, 550 U.S. 554, 570 (2007). "A claim has facial plausibility when the plaintiff

This case originated in Alabama state court, and was later removed to this Court. Plaintiff has since amended its Complaint in this case, yet continues to assert jurisdiction and venue pursuant to Alabama state statutes. (Doc. #23). -2-

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pleads factual content that allows the court to draw the reasonable inference that the d e f e n d a n t is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2 0 0 9 ). The plaintiff must provide "more than labels and conclusions, and a formulaic re c ita tio n of the elements of a cause of action will not do." Twombly, 550 U.S. at 559. It is n o t sufficient that the pleadings merely leave "open the possibility that a plaintiff might later e s ta b lis h some set of undisclosed facts to support recovery." Id. at 561 (internal quotation a n d alteration omitted). I V . FACTUAL AND PROCEDURAL BACKGROUND O n October 12, 2007, Plaintiff was served in Montgomery County, Alabama with an e v a lu a t i o n notice for tax year 2007. The evaluation notice valued the property located at 8 3 3 0 Minnie Brown Road, designated as Parcel No. 09-05-22-01-000-011.004 (the " P ro p e rty" ), at $4,051,600.00 and assessed a tax on this value at $29,576.68. Plaintiff o b je c te d to this valuation on October 15, 2007, arguing that the Property's value was actually $ 2 ,9 9 3 ,0 7 5 .0 0 . Plaintiff did not receive a response from the from the Montgomery County A p p ra is a l Department (the "Appraisal Dept."), and on December 21, 2007, asked the A p p ra is a l Dept. to submit the methodology used to determine the Property's value. O n December 27, 2007, the Appraisal Dept. conducted an informal hearing and in d ic a te d that the assessed value of $4,051,600.00 was correct. On December 28, 2007, P la in tif f paid the assessed tax of $29,576.68 under protest and requested a hearing before the M o n tg o m e ry County Board of Equalization ("BOE") to review the valuation of the Property.

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Having not received a response, on February 15, 2008, Plaintiff filed a specific request a n d applied for a hearing before the BOE. Plaintiff made repeated requests and on

S e p te m b e r 25, 2008 received a hearing with the BOE. On December 16, 2008, the BOE re v a lu e d the Property at $3,200,000.00, entitling Plaintiff to a refund of $6,211.31 (the "2007 re f u n d" ). O n December 16, 2008, Richardson informed Plaintiff by letter that the Property was v a l u e d at $5,979,100.00 for tax year 2008. On December 26, 2008, Plaintiff tendered a c h e c k for $17,128.51 and requested that the 2007 refund be applied as a credit towards his to ta l 2008 tax burden of $23,339.82 (the "2008 taxes"). O n March 6, 2009, the Office of the Judge of Probate of Montgomery County, A la b a m a (the "Montgomery Probate Court") issued a notice to Plaintiff to "show cause if any yo u have, why a decree for the sale of said property . . . should not be made for the payment o f the taxes thereon, and fees and costs." Plaintiff received no credit for the 2007 refund or th e December 26, 2008 payment of $17,128.51 towards his 2008 taxes. O n March 12, 2009, Spear and/or Ashmore, choosing not to apply the 2007 refund to th e 2008 taxes, issued a check in the amount of $6,216.68 to Plaintiff and payable to Plaintiff's chief operating officer. This check was sent after the notice sent by the

M o n tg o m e ry Probate Court on March 6, 2009. O n March 26, 2009, Plaintiff filed his response to the Montgomery Probate Court's n o tic e to show cause with the Montgomery Probate Court and Spear in her capacity as

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Revenue Commissioner within the requisite thirty day time period. However, Plaintiff re c e iv e d no reply to his response, and no trial was conducted pursuant to ALA. CODE § 40-108 (1975). O n April 3, 2009, Plaintiff tendered a check to Spear for $12,494.16 under protest and re q u e s te d a hearing before the BOE. Plaintiff received no written response. In sum, Plaintiff p a id a total of $29,622.67 toward the tax liability for 2008, more than his assessed liability o f $23,339.82. However, in May 2008, Plaintiff was informed that the Property would be s o ld for taxes if Plaintiff did not tender an additional $1,531.13, representing penalties and in te re s t, to Spear. O n May 12, 2009, Plaintiff filed for a writ of mandamus from the Circuit Court of M o n tg o m e ry County, Alabama ("Montgomery Circuit Court"). (Doc. #5-1). Plaintiff asked th e Montgomery Circuit Court to issue a writ of mandamus ordering Spear, in her capacity a s Revenue Commissioner, to respond to Plaintiff's response to the Montgomery Probate C o u rt's notice to show cause and to set a trial, pursuant to ALA. CODE § 40-10-8, on the issue o f whether the tax sale of the Property should proceed. Id. Plaintiff also asked the M o n tg o m e ry Circuit Court to issue a writ of mandamus ordering a hearing before the BOE o n the 2008 valuation of the Property. Id. O n May 13, 2009, Spear and Ashmore acted to have the Property sold at auction due to the unpaid $1,531.13 in penalties and interest on the 2008 taxes that Plaintiff had been told to pay. On May 14, 2009, Plaintiff paid $1,531.13 to render the sale void.

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On June 2, 2009, the appraisal division of the Revenue Commissioner's office revised th e 2008 valuation of the property from $4,059,900 3 to $2,976,000, lowering the 2008 taxes to $21,724.80. Plaintiff had previously paid $31,153.80 in 2008 taxes,4 entitling Plaintiff to a refund of $9,429. But on June 9, 2009, Plaintiff received a refund of only $7,897.87. In summary, Plaintiff pleads that it did not receive payments for: (1) interest owed on th e refunded 2007 overpayment of $6,211.31, an overpayment held by Spear for 423 days; (2 ) interest owed on the refunded 2008 overpayment of $7,897.87, an overpayment held by S p e a r for 60 days; or (3) the $1,531.13 paid by Plaintiff for penalties and interest on the 2008 ta x e s . O n July 28, 2009, the Montgomery Circuit Court asked the parties to reach a s e ttle m e n t over the amounts allegedly owed. Though the parties have attempted to reach a s e ttle m e n t, Defendants refuse to refund Plaintiff the $1,531.13 wrongfully paid for penalties a n d interest on the 2008 taxes. Defendants also refuse to pay Plaintiff's attorneys' fees in c u rre d on these issues. O n September 4, 2009, Plaintiff filed an Amended and Supplemented Complaint in M o n tg o m e ry Circuit Court, adding federal claims for the first time. (Doc. #5-3). On S e p te m b e r 28, 2009, Plaintiff filed a Second Amended and Supplemented Complaint,

Earlier in the Third Amended and Supplemented Complaint, Plaintiff pleaded that the 2008 valuation was $5,979,100.00. (Doc. #23, at 3). Plaintiff does not explain if and when this valuation was reduced to $4,059,900. Plaintiff paid $17,128.51 on December 26, 2008; $12,494.16 on April 3, 2009; and $1,531.13 on May 13, 2009. -64

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including federal claims. (Doc. #5-5). On September 29, 2009, Defendants timely removed th e case to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. (Doc. #5). O n December 16, 2009, with leave of the Court, Plaintiff filed its Third Amended and S u p p le m e n te d Complaint. (Docs. #22 & 23). In Count I, Plaintiff brings claims pursuant to 42 U.S.C. § 1983 for deprivation of property without procedural due process in violation o f the Fifth and Fourteenth Amendments to the United States Constitution and Article I, § 6 of the Alabama Constitution. In Count II, Plaintiff brings a claim pursuant to 42 U.S.C. § 1983 for an unlawful taking without just compensation in violation of the Fifth and F o u rte e n th Amendments to the United States Constitution.5 In Count III, Plaintiff brings a c la im for attorneys' fees and expenses pursuant to the fee-shifting provisions of 42 U.S.C. § 1988. Plaintiff seeks only monetary damages. Defendants moved to dismiss the Third A m e n d e d and Supplemented Complaint pursuant to Rule 12(b)(6) on December 30, 2009. (Doc. #24). V . DISCUSSION D e f e n d a n ts argue that Plaintiff fails to state a claim upon which relief can be granted. Additionally, Defendants argue that: (1) Defendants have immunity for all claims against th e m in their official capacities pursuant to the Eleventh Amendment of the United States C o n s titu tio n and Article I, § 14 of Alabama's constitution; (2) Defendants are not "persons" f o r purposes of an action for damages under 42 U.S.C. § 1983; (3) there is no legal authority While the complaint does not reference § 1983 in connection with Count II, the Court assumes that Plaintiff intended for this claim to be brought through the statute as well. -75

allowing or authorizing the recovery of money damages for violations of Alabama's c o n s titu tio n ; (4) Defendants have qualified immunity because Plaintiff has failed to allege a n d cannot establish either an underlying constitutional violation or that Defendants violated c le a rly established federal law; (5) Plaintiff lacks standing to assert a claim for a deprivation o f procedural due process; (6) assuming a deprivation of procedural due process, Plaintiff h a s adequate post-deprivation remedies under state law; and (7) Plaintiff's claim for an u n la w f u l taking without just compensation is not ripe. A . Failure to state a claim against defendant Debbie Richardson T h e Plaintiff's complaint must allege "enough facts to state a claim to relief that is p la u s ib le on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). While P la in tif f does allege in its Third Amended and Supplemented Complaint that Richardson a p p ra ise d the Property in 2008, nowhere does Plaintiff allege that Richardson committed any o f the constitutional violations complained of. Even taking each pleaded fact as true, the C o u rt cannot deduce a claim for relief from a constitutional violation against Debbie R ic h a rd s o n . Therefore, the Plaintiff's claims against Richardson in both her official and p e rs o n a l capacities are DISMISSED. B. Failure to state a procedural due process claim against Defendants P la in tif f alleges that the Defendants deprived it of property without procedural due p ro c e s s by failing to provide Plaintiff with a trial before selling the Property in a tax sale. Plaintiff alleges that ALA. CODE § 40-10-8 provides the right to a trial before a taxpayer's

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property is sold. However, nowhere does Plaintiff allege that Defendants were responsible f o r ensuring the Plaintiff got a trial or that Defendants had the power to require, conduct, or s e t a trial. Because Plaintiff has not alleged that these Defendants violated Plaintiff's p ro c e d u ra l due process rights, Count I of Plaintiff's Third Amended and Supplemented C o m p la in t is DISMISSED. C. `Persons' under § 1983 C o u n t II of the complaint, as brought against defendants Spear and Ashmore, re m a in s to be analyzed. It is a § 1983 claim based on deprivation of property without just c o m p e n s a tio n . Section 1983 authorizes claims for relief against a "person" who acted under color o f state law. 42 U.S.C. § 1983. The term `person' as used in the statute encompasses s ta te officials sued in their personal capacities, state officials sued in their official c a p a c ity for prospective relief, municipal entities, and municipal officials sued in their p e rs o n a l and official capacities. See Will v. Michigan Dep't of State Police, 491 U.S. 58 (1 9 8 9 ). Whether a defendant sued in his official capacity is a state or local policy maker f o r purposes of § 1983 is determined by analyzing state law. McMillian v. Monroe C o u n ty , 520 U.S. 781 (1997). The Court determines "the actual function of an official in a particular area by reference to `the definition of the official's functions under relevant s ta te law.'" Turquitt v. Jefferson County, 137 F.3d 1285, 1287 (11th Cir. 1998). A municipality cannot be held liable under § 1983 for actions over which the

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municipality had no responsibility. See id. at 1291-92. Therefore, whether or not M o n tg o m e ry County supervised or controlled the Defendants in the collection of ad v a lo re m taxes is vital to this inquiry. Because under state law the Alabama Department o f Revenue has complete control over county tax collectors and assessors, including re v e n u e commissioners, this Court determines that the Defendants are state officials for p u rp o s e s of § 1983, and therefore not `persons' subject to § 1983 liability. Like all other tax collectors and assessors, the Montgomery County Revenue C o m m is s io n e r is directly supervised by the Department of Revenue for the State of A la b a m a . ALA. CODE § 40-2-11(1) (1975). The statute provides in part that the D e p a rtm e n t of Revenue shall h a v e and exercise general and complete supervision and control of the valuation, e q u a liz a tio n , and assessment of property . . . taxes for the state and counties, and of th e enforcement of the tax laws of the state, and of the several county tax assessors a n d county tax collectors, probate judges, and each and every state and county o f f ic ia l, board, or commission charged with any duty in the enforcement of tax la w s , to the end that all taxable property in the state shall be assessed and taxes s h a ll be imposed and collected thereon in compliance with the law. . . . Id . Created and defined by state statute, the Department of Revenue is undisputedly a s ta te entity. See ALA. CODE § 40-2-1 et seq.; State v. Tuskegee Univ., 730 So. 2d 617 (A la . 1999) ("There is no question that the Department of Revenue is an administrative a g e n c y of the State of Alabama."). ALA. CODE § 40-2-11(1) "demonstrate[s] the D e p a rtm e n t of Revenue's general and complete control and supervision over the v a lu a tio n , assessment, and collection of ad valorem taxes in Alabama." Sims v. White,

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522 So. 2d 239, 241 (Ala. 1988). The acts and practices of the Department of Revenue in d ic a te that the Department recognizes its authority over the administration of ad v a lo re m taxes. Id. at 241-42. In State v. Tuskegee University, the Alabama Supreme C o u rt determined that for purposes of state law jurisdictional issues, an appeal of a M a c o n County revenue commissioner's decision was effectively "a challenge to an action o r a decision fo the Department of Revenue." 730 So. 2d at 620. Because the functions of the Revenue Commissioner are completely supervised by th e State's Department of Revenue, the county has no responsibility or control over the a d m in is tra tio n of ad valorem taxes. As such, the county cannot be held liable for the a c tio n s of the Revenue Commissioner, and the Revenue Commissioner is a state official f o r purposes of § 1983 liability. P la in tif f seeks damages, costs, and attorney's fees, but not prospective relief a g a in s t Spear. (Doc. # 23). Therefore, according to Will, the Revenue Commissioner is n o t a `person' as contemplated by § 1983, and the claims against Spear in her official c a p a c ity are due to be dismissed. 491 U.S. 58 (1989). Since Ashmore was an employee of the Revenue Commissioner, it follows that he w o u ld also be a state official for purposes of § 1983. See 1991 Ala. Acts 91-365. Because a suit against a state official is a suit against the state, and the state is not a `p e rs o n ' who can be sued for damages under § 1983, the claims against Ashmore in his o f f ic ia l capacity must also be dismissed.

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D. Eleventh Amendment Immunity E v e n if the remaining Defendants were `persons' capable of being sued under § 1983, th e Defendants are entitled to Eleventh Amendment immunity. The Eleventh Amendment b a rs suits in federal court against individual defendants acting as "arm[s] of the State." Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (quoting Regents of the Univ. of Cal. v . Doe, 519 U.S. 425, 429­30 (1997)). As a suit against a government official in her official c a p a c ity is effectively a suit against the government entity, the government official is entitled to assert those immunities which the entity itself possesses. Hafer v. Melo, 502 U.S. 21, 25 (1 9 9 1 ). The Court looks to the defendant's particular function when taking the actions giving rise to alleged liability to determine if the defendant was acting as an arm of the state. Id. Therefore, in order to determine whether the Defendants may assert Eleventh Amendment immunity, the Court must determine whether they act as arms of the state when collecting a n d assessing ad valorem taxes. The Court considers four factors in making this determination: (1) how the state d e f in e s the entity; (2) what degree of control the state maintains over the entity; (3) where th e entity derives its funds; and (4) who is responsible for judgment against the entity. 6 W illia m s v. Dist. Bd. of Trs., 421 F.3d 1190, 1192 (11th Cir. 2005) (citing Manders, 338 F.3d a t 1309). Though determining whether a defendant is an arm of the state for purposes of
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For this factor, the Court determines the source of funds that will pay any adverse judgment against the defendant acting in his or her official capacity. See Manders, 338 F.3d at 1324. -12-

Eleventh Amendment immunity is ultimately a question of federal law, the Court must c o n s id e r state law to properly apply the four-part test. See Williams, 421 F.3d at 1192; M a n d e r s , 338 F.3d at 1309. A s discussed in subsection A above, state law gives the Department of Revenue c o m p le te control over the administration of ad valorem taxes. State case law indicates that A la b a m a defines its Revenue Commissioners as state officials. Therefore, both the first and s e c o n d factors of the test annunciated in Manders weigh heavily in favor of finding that S p e a rs and Ashmore were arms of the state. Plaintiff argues in its Response to Defendants' Motion to Dismiss that because the c o u n ty both elects and pays the salaries of the Revenue Commissioner, the Commissioner m u s t be a county official. (Doc. # 27). However, these facts cannot outweigh the

D e p a rtm e n t of Revenue's complete control over the Revenue Commissioner. Plaintiff's a rg u m e n t that a judgment against the Defendants would be paid by the county is not d e te rm in a tiv e either. While ALA. CODE § 40-7-9.1, the section cited by Plaintiff, does p ro v id e that refunds would be paid out of the next monies collected by the county, Plaintiff's s u it is for damages suffered when Defendants allegedly violated his constitutional rights. Therefore, the provision cited by the Plaintiffs does not help to determine whether, for p u rp o s e s of this suit, the county or the state would be responsible for paying the judgment. For these reasons the Court finds that Defendants are entitled to Eleventh Amendment im m u n ity as arms of the state.

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Plaintiffs argue that even if Defendants were entitled to Eleventh Amendment im m u n ity, any immunity was waived when Defendants removed the case to federal court. In s u p p o rt of their proposition they cite Lapides v. Board of Regents, 535 U.S. 613 (2002). In L a p id e s , the Supreme Court narrowly tailored its holding to facts before the Court, finding th a t when a state has waived its immunity from state-court proceedings, and a defendant who is entitled to Eleventh Amendment immunity removes the case to federal court, the defendant w a iv e s its immunity. Id. at 617-20. The Lapides holding is not applicable in the present c a s e , as there has been no argument that the state of Alabama waived its immunity. While s o m e Circuits have chosen to apply the reasoning in Lapides beyond its narrow holding,7 the E le v e n th Circuit has not yet done so.8 Regardless of whether the Defendants waived their E le v e n th Amendment immunity, however, Plaintiff's claims against Defendants in their o f f ic ia l capacity are dismissed on the grounds that Defendants are not `persons' who can be s u e d under § 1983. E. Violations of Article I, § 6 of the Alabama Constitution P la in tif f also brings a claim for relief based on Article I, § 6 of the Alabama C o n s titu tio n . To the extent that Plaintiff is bringing a § 1983 claim based on a violation

See, e.g. Myers v. Texas, 410 F.3d 236 (5th Cir. 2005). In that case, the Fifth Circuit found that "although the Supreme Court in Lapides circumspectly did not address any issue unnecessary to its decision, we believe that Lapides's interpretation of the . . . waiver-by-removal rule, applies generally to any private suit which a state removes to federal court." Id. at 242. See Dorsey v. Georgia Dept. of State Road and Tollway Auth., 2009 WL 2477565, at *5 (N.D. Ga. 2009). -148

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of state law, the claim must be dismissed. Section 1983 "only provides an avenue for re lie f for the violation of federal rights." Baker v. City of Alexander City, 973 F. Supp. 1 3 7 0 , 1376 (M.D. Ala. 1997). Even to the extent that Plaintiff is relying solely on state la w , the claim still must be dismissed. There is no mechanism in Alabama law similar to 4 2 U.S.C. §1983 by which a state actor can be held liable for damages for violation of the A la b a m a Constitution. See Ross v. Alabama, 893 F. Supp. 1545 (M.D. Ala. 1995) (e x p re s s in g an inability to find an enabling statute or case law providing that such a cause o f action exists). F. Qualified Immunity T h e only claim remaining in this case is Claim II to the extent that it is brought a g a in s t Defendants Spear and Ashmore in their personal capacities. An official sued for d a m a g e s in her personal capacity may assert qualified immunity from suit. Harlow v. F itz g e ra ld , 457 U.S. 800, 818 (1982). Such immunity offers complete protection for in d iv id u a l government officials performing discretionary functions insofar as their c o n d u c t does not violate clearly established statutory or constitutional rights of which a re a s o n a b le person would have known. Randall v. Scott, 610 F.3d 701, 714 (11th Cir. 2 0 1 0 ). Where, as here, qualified immunity is raised in a motion to dismiss, this Court m u s t "look to the pleadings to see if the plaintiff has successfully alleged the violation of a clearly established right." O'Rourke v. Hayes, 378 F.3d1201, 1206 (11th Cir. 2004). Thus, the plaintiff's complaint must allege facts sufficient to plausibly support two

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findings: "(1) that the defendant has committed a constitutional violation and (2) that the c o n s titu tio n a l right the defendant violated was `clearly established' at the time he did it." Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004) (quoting Saucier v. K a tz , 533 U.S. 194, 201 (2001)).9 T o demonstrate that Defendants' conduct violated clearly established law, Plaintiff m u s t point to either (1) earlier case law from the Supreme Court, the Eleventh Circuit, or th e Alabama Supreme Court "that is materially similar to the current case and therefore p ro v id e d clear notice of the violation, or (2) general rules of law from a federal c o n s titu tio n a l or statutory provision or earlier case law that applied with obvious clarity to th e circumstances." Long v. Slaton, 508 F.3d 576, 584 (11th Cir. 2007). The Eleventh C irc u it has long held that the cited case law or general rule must be factually "materially s im ila r" in order to give notice to the Defendants that their conduct might violate federal rig h ts . Id. Between its Third Amended and Supplemented Complaint and their brief in O p p o s itio n to Defendant's motion, Plaintiff cites only to the Fifth and Fourteenth A m e n d m e n ts to the United States Constitution and the case United States v. Sperry Corp., 4 9 3 U.S. 52 (1989) in support of their proposition that Defendants violated clearly e s ta b lis h e d law. The cited provisions of the Constitution are much too broad to put
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Defendants argue that the Eleventh Circuit applies a heightened pleading standard in § 1983 cases. Since the filing of these briefs, the heightened pleading standard has been subsumed by the Supreme Court's Twombly-Iqbal line of cases. Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010). -16-

Defendants on notice that their conduct might violate Plaintiff's rights and do not apply to th e facts of this case with the necessary obvious clarity. Additionally, the sole case P la in tif f cites regards whether a user fee taken from a judgment awarded from the IranU n ite d State Claims Tribunal and paid into the Federal Reserve Bank was an u n c o n stitu tio n a l taking. Sperry, 493 U.S. at 54-58. This case is not materially similar to th e instant one. Sperry discusses neither the collection of penalties and interest on late ta x e s nor the state's failure to pay interest on taxes later refunded. Additionally, this C o u rt's review of the relevant bodies of state and federal case law has not revealed any c a s e s that would have put the Defendants on notice that their actions violated Plaintiff's f e d e ra l rights. Plaintiff has not met its burden of establishing that the Defendants violated c le a rly established federal law. Because Plaintiff cannot meet the "clearly established law" prong of the qualified im m u n ity test, Defendants Spear and Ashmore are entitled to qualified immunity as to C o u n t II to the extent it is brought against them in their personal capacities. Accordingly, th is count of the complaint is also due to be DISMISSED. As there are no remaining counts or defendants, the Court need not reach D e f e n d a n ts ' argument that Plaintiff lacks standing, that Plaintiff has adequate postd e p riv a tio n remedies under state law, or that Plaintiff's claim is not ripe.

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VI. CONCLUSION D e f e n d a n ts ' Motion to Dismiss is hereby GRANTED in its entirety and Plaintiff's suit is D IS M IS S E D .

DONE this the 22nd day of October, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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