Donahue Land, LLC et al v. The City of Auburn
MEMORANDUM OPINION AND ORDER: it is ORDERED that the Def's motion to dismiss (doc. 20 ) is GRANTED. A separate final judgment will be entered. Signed by Chief Judge Emily C. Marks on 10/13/2020. (cwl, )
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IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
DONAHUE LAND, LLC, and
LAKE MARTIN, INC.,
THE CITY OF AUBURN,
CASE NO. 3:19-cv-00820-ECM
MEMORANDUM OPINION and ORDER
On January 4, 2019, Donahue Land, LLC and Lake Martin, Inc. (collectively
“Plaintiffs”) filed a Petition for Writ of Mandamus in the Circuit Court of Lee County,
Alabama. The Plaintiffs sought to compel the City Council to vote on their petition to deannex thirteen acres of land from the municipal limits of the City of Auburn (the “City”).
The Plaintiffs subsequently amended their complaint to bring an equal protection claim
against the City. (Doc. 1-10). The City in turn removed the case to this Court under 28
U.S.C. § 1331 federal question jurisdiction on October 23, 2019. Thereafter, the Plaintiffs
filed a Second Amended Complaint (doc. 13), which is the operative complaint.
The matter now before the Court is the City’s Motion to Dismiss the Plaintiffs’
Second Amended Complaint and Verified Petition for Writ of Mandamus. (Doc. 20). The
Plaintiffs argue that the City violated their legal right to have their petition for de-
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annexation heard and voted on by the City Council, and, in doing so, the City further
violated their rights to equal protection and due process under the Fourteenth Amendment.
The Plaintiffs bring a petition for writ of mandamus, two counts of violations of the Equal
Protection Clause, and one count of a procedural due process violation. They request that
the Court issue a writ of mandamus and enter an injunction requiring the City to cease
violations of the Equal Protection Clause by creating a clearly articulable standard for
considering de-annexation petitions and by voting on the Plaintiffs’ petition.
For the following reasons, the City’s Motion to Dismiss is due to be GRANTED.
The Plaintiffs are two entities who collectively own thirteen acres of land within the
City limits, Parcels A-1-B and A-1-A of the Donahue Ridge Subdivision of Parcel A. On
June 8, 2018, the Plaintiffs petitioned the City Council of Auburn to allow the deannexation of the two Parcels from the municipal limits. In Auburn, individual owners
submit their petitions for annexation or de-annexation to the City Council, which must
formally vote to approve a petition. When the City Council did not take up the Plaintiffs’
petition for a vote, the Plaintiffs sent separate emails about the petition to the City
Manager’s office on June 14, 2018; July 2, 2018; and August 2, 2018. On October 19,
2018, the Plaintiffs renewed their request to be placed on a meeting agenda.
Despite these requests, the City Council did not bring the petition up for a vote. The
City follows a policy set in 2010 for de-annexation petitions. According to the policy, “the
City Council is generally not interested in reducing the corporate limits of the City.” (Doc.
13-3 at 38). The policy provides that when a citizen of the City submits a petition for de-
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annexation to the City Council, they first contact the City’s Planning Director. Id. at 2.
Upon review by the Director for appropriateness, the petition is forwarded to the City
Manager. The City Manager then sends a memorandum regarding the request to the City
Council members to determine whether any members wish to discuss or “sponsor” the
petition. If at least one Council member chooses to sponsor the petition, it will be placed
on a City Council meeting agenda. Finally, once the Council publicly hears the petition, it
will then vote on the petition. Because no City Council members chose to sponsor the
Plaintiffs’ petition, the petition was never brought to a vote.
The Court maintains jurisdiction over the claims in this case pursuant to 28 U.S.C.
§§ 1331, 1441(a), 1441(c)(1)(A), 1441(c)(1)(B), and 1446.
Venue and personal jurisdiction are uncontested.
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the
legal standard set forth in Rule 8: “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U. S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is] ... a contextspecific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 663 (alteration in original) (citation omitted). The plausibility
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standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id.
at 678. Conclusory allegations that are merely “conceivable” and fail to rise “above the
speculative level” are insufficient to meet the plausibility standard. Twombly, 550 U. S. at
555, 570. This pleading standard “does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. at 678. Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Id.
A. Count One: Writ of Mandamus
The Plaintiffs seek a writ of mandamus “commanding and directing the City to deannex the Plaintiffs’ property from within the City’s boundaries, or alternatively, to at least
take such action as necessary to vote upon an ordinance that would de-annex the Property
from within the city boundaries.” (Doc. 13 at 11–12, para. A). Addressing the Plaintiffs’
cause of action for mandamus relief, the parties assert that this is a state law cause of action
and cite to Alabama law. However, writs of mandamus were abolished by Rule 81 of the
Federal Rules of Civil Procedure. Fed. R. Civ. P. 81(b)–(c) (providing that writs of
“mandamus are abolished” and noting that this rule applies “to a civil action after it is
removed from a state court”). Although pursuant to 28 U.S.C. § 1651 federal courts “may
issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law,” the parties do not address the Court’s power to issue
writs pursuant to this statutory authority, and the Court declines to independently undertake
such analysis. To the extent Plaintiffs’ petition for writ of mandamus could be construed
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as a request for injunctive relief, an injunction is an equitable remedy, not an independent
cause of action. In any event, the Plaintiffs seek injunctive relief for their claims brought
pursuant to the Equal Protection Clause of the Fourteenth Amendment. Because the
Plaintiffs cannot maintain their independent cause of action for a writ of mandamus, that
claim is due to be dismissed.
Even if the Plaintiffs could assert a viable cause of action for a writ of mandamus,
they would not be entitled to the relief sought. Despite the Plaintiffs’ claim that they have
a right to a hearing and a vote on their petition, the Alabama Supreme Court foreclosed
such argument when it held that individuals do not have a right to have their petitions for
de-annexation heard under Alabama law. Courtyard Manor Homeowner’s Ass’n v. City of
Pelham, 2019 WL 5288011, at *3 (Ala. 2019). In that case, Courtyard Manor filed a suit
against the City of Pelham when the City Council failed to conduct a hearing or respond to
the plaintiff’s petition for de-annexation. Id. at *1. After a year of waiting for the City
Council to hear their petition, the plaintiff requested that the state court require the Pelham
City Council to hold a hearing on the petition. Id. The circuit court granted the defendant’s
motion to dismiss, and the Alabama Supreme Court affirmed. Id. at *4. The court
[t]he right to petition or complain about governmental action or inaction is
clearly within the Alabama Constitution; nothing can prevent citizens from
asking their government to consider a request. But, requiring a response, or
in this case mandating that a city hold a hearing, imposes a duty that does not
exist under our law. We must respect the legislative function of governments
and not intrude on their separate, but coequal, power to decide when, where,
and whether to conduct hearings or respond to petitions. Legislative inaction
in this case is cured not by court intervention, but at the ballot box.
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Id. at *3. Thus, the Alabama Supreme Court found that citizens do not have a right to have
their petitions for de-annexation voted on, “[a]bsent any abuse of discretion by the
governing body.” Id.
The Plaintiffs seek to invoke the exception carved out by the Alabama Supreme
Court, alleging that the City abused its discretion when it “behaved arbitrary and
capriciously in sponsoring certain de-annexation petitions and not sponsoring the
Plaintiffs’ de-annexation petition, even though the petitioners were in like circumstances.” 1
(Doc. 13 at 6). However, the Plaintiffs fail to allege facts which could establish an abuse
of discretion by the City that would warrant the Court granting their petition. In an
interrogatory attached as an exhibit to the operative complaint, the City Council supplies,
“[t]he only de-annexation request considered by the current City Council was January 22,
2019.” (Doc. 13-3 at 1). The exhibit reveals that the City Council had on its January 22,
2019 meeting agenda a resolution on “[r]eduction of corporate limits” for Richard Franey
and Clay Carson to remove 0.177 acres. (Id. at 36). In agreeing to de-annex those acres,
the City would simultaneously annex the same amount of land from Farmville Tracts, LLC,
preventing any reduction of the City’s boundaries. (Id. at 24). By comparison, the Plaintiffs
seek to have thirteen acres removed from the City boundaries, inconsistent with the policy
set out by the City Council in 2010 to avoid reducing the City limits.
It can hardly be called an abuse of discretion for the City Council to treat dissimilar
petitions in different ways. In the absence of evidence to support a finding of abuse of
The Plaintiffs do not cite to any authority for the proposition that the standard for arbitrary and capricious is
interchangeable with the standard for abuse of discretion.
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discretion under Alabama law—“not merely an error of judgment, but perversity of will,
passion, or moral delinquency,” Pilcher v. City of Dothan, 93 So. 16, 18–19 (Ala. 1922)—
the Plaintiffs’ petition must be dismissed. The Plaintiffs do not present a plausible cause
of action for their petition for a writ of mandamus. Ashcroft, 556 U.S. at 678.
B. Counts Two, Three, and Four: Fourteenth Amendment
The Plaintiffs assert violations of their equal protection and procedural due process
rights under the Fourteenth Amendment. Although the Plaintiffs did not allege that their
Fourteenth Amendment claims are brought pursuant to 42 U.S.C. § 1983, the Court
presumes that they are. See Lyles v. Hale County Comm’n, 2005 WL 8158888, *3 (S.D.
Ala. 2005) (noting that § 1983 “serves as the basic vehicle for federal court review of
alleged state and local violations of federal law”); see also Henderson v. Corrs. Corp., 918
F. Supp. 204, 208–9 (E.D. Tenn. 1996) (“A plaintiff must allege a cause of action under
42 U.S.C. § 1983 in order to bring a claim of a constitutional violation of the . . . Fourteenth
Amendment.”) (citing Azul-Pacifico, Inc. v. City of L.A., 973 F.2d 704, 705 (9th Cir.
1992) (“Plaintiff has no cause of action directly under the United States Constitution. We
have previously held that a litigant complaining of a violation of a constitutional right must
utilize 42 U.S.C. § 1983.”)).
1. Equal Protection
Even if the Court could force the City Council to put the Plaintiffs’ petition to a
vote, the Plaintiffs’ claims still would fail. The Plaintiffs allege two counts of equal
protection violations in their Second Amended Complaint. (Doc. 13 at 7–9). However,
because the same behavior serves as the basis for both claims—that the City treated
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similarly situated individuals dissimilarly—the Court will address the counts together as a
single “class of one” equal protection claim. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1199 (11th Cir. 2007) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564–65
(2000)). A class of one analysis begins when plaintiffs “[allege] that [they have] been
intentionally treated differently from others similarly situated and that there is no rational
basis for the difference in treatment.” Olech, 528 U.S. at 564. Thus, the Plaintiffs must
demonstrate (1) intentional treatment different from the treatment of similarly situated
comparators, and (2) that there was no rational basis for the disparate treatment. Griffin
Indus., Inc., 496 F.3d at 1202.
While the Plaintiffs do allege that some petitioners did have their de-annexation
petitions granted, the Plaintiffs fail to establish that those petitioners were similarly situated
The Eleventh Circuit counsels that, in establishing a comparator, the
comparator must be “similarly situated in all material respects.” Lewis v. City of Union
City, 918 F.2d 1213, 1218 (11th Cir. 2019). However, “[a] ‘class of one’ plaintiff might
fail to state a claim by omitting key factual details in alleging that it is ‘similarly situated’
to another,” or, in the alternative, a plaintiff might provide too much information that shows
how differently they are situated from their comparators. Griffin Indus., Inc., 496 F.3d at
1205. Both deficiencies exist here. The Plaintiffs do not just omit key factual details; they
fail to allege any factual similarity between themselves and their comparators. Meanwhile,
in stating that other petitioners have had their de-annexation petitions granted, the Plaintiffs
attach evidence that points out how very differently situated those alleged comparators
When they petitioned to have their land de-annexed, the purported
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comparators here specifically avoided reducing the boundaries of the City. In contrast, the
Plaintiffs would reduce the City boundaries by thirteen acres. Accepted as true, these facts
do not establish comparators similarly situated in all material respects. See Lewis, 918 F.3d
Moreover, when a government uses its discretion in a multi-dimensional decisionmaking process, the challenged behavior “must be evaluated in light of the full variety of
factors that an objectively reasonable governmental decisionmaker would have found
relevant in making the challenged decision.” Griffin Indus., Inc., 496 F.3d at 1203. The
Plaintiffs make the argument that because the City does not provide specific criteria for deannexation, they cannot know what characteristics they have in common with their alleged
comparators. (Doc. 25 at 6–7 (“To know further what factors and criteria are relevant in
this instance is impossible, as none have been articulated by the City.”)). But the Plaintiffs
miss the point: they still need to allege facts that demonstrate their comparators are
similarly situated in all material respects to them, not just that they faced similar criteria
when petitioning the City Council. The burden is on the Plaintiffs, not the City, to make a
sufficient pleading, including facts the Court accepts as true. Without facts alleged which
point to valid comparators, the Plaintiffs do not establish a plausible claim for unequal
2. Procedural Due Process
The Plaintiffs claim their due process rights were violated when the City Council
failed to place their de-annexation petition on the meeting agenda, discuss the petition, and
bring the petition to a vote. In the Eleventh Circuit, “a § 1983 claim alleging a denial of
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procedural due process requires proof of three elements: (1) a deprivation of a
constitutionally-protected liberty or property interest; (2) state action; and (3)
constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.
2003). If it determines that state actions deprived the Plaintiffs of a constitutionallyprotected interest, the Court applies the balancing test from Matthews v. Eldridge to
determine what process was due. 424 U.S. 319, 335 (1976); see also Grayden, 345 F.3d at
In this case, the Plaintiffs cannot show that they were deprived of a constitutionallyprotected interest. First, in bringing their complaint, the Plaintiffs demonstrate that a
deprivation never occurred because there is in fact a process in place: the City Council
members reviewed their petition for de-annexation when it was submitted, and none chose
to sponsor it. Accordingly, under the facts presented by the Plaintiffs, they received
And even if the claim were not due to be dismissed on those grounds, the Plaintiffs
fail to sufficiently allege that a constitutionally-protected interest is at stake. They argue
that the private interest at stake is their right to “the equal protection of the law.” (Doc. 13
at 10). They explain, “[t]he private interest affected is whether the Plaintiffs have been
afforded equal protection by being treated similarly to those in like circumstances.” (Id. at
10–11). However, as the Court outlined above, the Plaintiffs have failed to allege a
violation of their rights to equal protection, nor is the Due Process Clause the appropriate
means to enforce the right to equal protection.
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Neither do the Plaintiffs have a property interest that is protected by federal
constitutional law. “The procedural component of the Due Process Clause does not protect
everything that might be described as a ‘benefit.’” Town of Castle Rock, Colo. v. Gonzales,
545 U.S. 748, 756 (2005). Instead, “‘[t]o have a property interest in a benefit, a person
clearly must have more than an abstract need or desire’ and ‘more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it.’” Id.
(quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). These
entitlements are “not created by the Constitution. Rather, they are created and their
dimensions are defined by existing rules or understandings that stem from an independent
source such as state law.” Roth, 408 U.S. at 577. For example, in Town of Castle Rock, the
Supreme Court looked at Colorado state law to determine whether the plaintiff had a
property or liberty interest in governmental aid. Town of Castle Rock, 545 U.S. at 756–57.
The Court found that the plaintiff did not: “a benefit is not a protected entitlement if
government officials may grant or deny it in their discretion.” Id.
The Alabama Supreme Court already determined that there is no independent source
of law entitling the Plaintiffs to have their petition for de-annexation heard. See Courtyard
Manor Homeowner’s Ass’n, 2019 WL 5288011, at *3. The Auburn City Council maintains
its discretion to determine when or whether to hold a formal vote on de-annexation
petitions. Without a source of law or otherwise entitling the Plaintiffs to have their petition
heard, the Plaintiffs’ due process claim fails because the Plaintiffs have not alleged a
constitutional right of which they were deprived.
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Accordingly, the Plaintiffs have not alleged sufficient facts to show that they were
treated differently for unconstitutional reasons, or that they were deprived of a
constitutionally-protected interest. The Plaintiffs’ petition followed the process established
by the City in 2010: the petition was submitted first to the Planning Director, then to the
City Manager, and finally to the City Council members for consideration. The Plaintiffs’
petition thus did receive sufficient consideration from and process by the City.
Moreover, the common-law separation of powers doctrine weighs on the issues at
hand. See Owen v. City of Independence, 445 U.S. 622, 648 (1980). This doctrine does not
give municipalities discretion to violate the Federal Constitution, but it does “[prevent]
courts from substituting their own judgment on matters within the lawful discretion of the
municipality.” Id. at 649. This Court cannot and will not use its power to force the City
Council members to exercise their discretionary powers and vote when the City used its
legislative discretion in a perfectly legal way.
The Plaintiffs do not have a right to have their petition for de-annexation publicly
heard under Alabama law, and they have failed to demonstrate any abuse of discretion.
The Court declines to order the City to provide the Plaintiffs with any more consideration
than they already have received. Furthermore, the Plaintiffs’ equal protection claims fail
without allegations of a similarly situated comparator, as does the Plaintiffs’ due process
claim because the Plaintiffs do not have a constitutionally-protected interest at stake.
Accordingly, it is
ORDERED that the Defendant’s motion to dismiss (doc. 20) is GRANTED.
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A separate final judgment will be entered.
DONE this 13th day of October, 2020.
/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE
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