Belevich v. Thomas et al

Filing 21

MEMORANDUM OPINION AND ORDER DENYING 6 First MOTION to Dismiss. Defendants have 21 days from the entry date of this Order to enter an Answer, as required by Rule 12(a) of the FRCP. Signed by Judge Abdul K Kallon on 3/9/2018. (JLC)

FILED
2018 Mar-09 AM 11:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VALENTIN BELEVICH,
Plaintiff,

vs.
KLAVDIA THOMAS & TATIANA
KUZNITSYNA,
Defendants.

)
)
)
)
)
)
)
)
)

Civil Action Number
2:17-cv-01193-AKK

MEMORANDUM OPINION AND ORDER
This action arises out of a contract dispute involving the purported breach of
an obligation created by the Immigration and Nationality Act, 8 U.S.C. § 1101, et
seq., and a related state law claim for the intentional infliction of emotional
distress. Klavdia Thomas and Tatiana Kuznitsyna (the Defendants) have now filed
a motion to dismiss, which the court construes as brought under Rule 12(b)(1) of
the Federal Rules of Civil Procedure, arguing that the court should abstain from
exercising subject matter jurisdiction over this case because of an ongoing divorce
proceeding between Tatiana Kuznitsyna and the Plaintiff, Valentin Belevich, in the
Circuit Court of Jefferson County, Alabama. Doc. 6. That motion is now fully
briefed, docs. 10 and 13, and ripe for review. After carefully considering the

parties’ briefs and the record, the court finds that the Defendants motion is due to
be denied.
I.

FACTS
Belevich and Kuznitsyna, a married couple with Russian citizenship, sought

to immigrate to the United States in 2009. Doc. 1 at 3. Kuznitsyna’s daughter
Klavdia Thomas, a citizen of the United States, sponsored Kuznitsyna and the
Department of Homeland Security approved Kuznitsyna’s visa request in 2010. Id.
at 4. Kuznitsyna and Thomas then jointly sponsored Belevich’s immigration by
co-signing an I-864 Affidavit of Support pursuant to § 213A of the Immigration
and Nationality Act, 8 U.S.C. § 1182a, on his behalf and promptly filing the
document with the Department of Homeland Security. Id.; see also 8 C.F.R. §
213a.2(a)(1)(ii).

An affidavit of support is required for certain categories of

immigrants to become lawful permanent residents. 8 U.S.C. § 1182(a)(4)(C). The
affidavit must be “executed by a sponsor of the alien as a contract . . . in which the
sponsor agrees to provide support to maintain the sponsored alien at an annual
income that is not less than 125 percent of the Federal poverty level during the
period in which the affidavit is enforceable.” 8 U.S.C. § 1183a(a)(1)(A). Notably,
the affidavit does not terminate on divorce, doc. 1-1 at 24, and lasts until the alien
becomes a naturalized citizen of the United States or “has worked 40 qualifying
quarters of coverage as defined under title II of the Social Security Act.”
2

§

1183a(a)(2)–(3). The Department of Homeland Security subsequently granted
Belevich a visa allowing him to immigrate to Alabama in 2012. Doc. 1 at 4.
Neither Belevich nor Kuznitsyna spoke English when they arrived in the
United States rendering them entirely dependent on Thomas for guidance and
support. Id. Indeed, among other things, Belevich allowed Thomas to liquidate
the couple’s Russian real property before he immigrated and he also wired Thomas
approximately $15,000 which she used to purchase and furnish a home for the
couple. Id. Once he arrived in Alabama, Belevich turned his other financial assets
over to Thomas, and he exclusively relied on a credit card Thomas provided for his
living expenses. Id. Belevich also surrendered the wages he earned at a variety of
jobs, including a full-time position as an auto-mechanic, to Thomas. Id. at 5.
In late 2014, Belevich suffered a heart attack and subsequently lost his job.
This created a financial hardship for the family and strained the parties’
relationship. Id. During his recovery, Belevich temporarily returned to Russia to
care for his ailing mother.

Id.

Allegedly, Thomas then sought to prevent

Belevich’s return to the United States by cancelling his credit card, cell phone, and
return ticket. Id. While in Russia, Belevich purportedly also learned that Thomas
had emptied his retirement accounts and liquidated his remaining Russian assets
without his knowledge. Id. These events allegedly caused Belevich to suffer a
second heart attack. Id. at 6.
3

After his condition stabilized, Belevich contacted his wife who informed
him that she was seeking a divorce and that he was no longer welcome in the
couple’s home. Id. Belevich borrowed money from friends to return to the United
States, but, true to her word, Kuznitsyna initiated divorce proceedings against him.
Id. Those proceedings are still ongoing. Id. at 7. Belevich alleges that since his
return in 2015 neither Kuznitsyna nor Thomas have complied with their
obligations under the I-864 Affidavit of Support, forcing Belevich to rely on
government benefits and charity to survive. Id. at 5–7. Accordingly, Belevich
filed this action requesting specific performance of the Defendants’ contractual
obligations, compensatory damages for past support, and damages for the
intentional infliction of emotional distress. Id. at 8–9.
II.

STANDARD OF REVIEW
The Defendants do not specify whether their motion, seeking dismissal

under the Younger abstention doctrine, is filed under Rule 12(b)(6) or Rule
12(b)(1) of the Federal Rules of Civil Procedure. Generally, however, challenges
to subject matter jurisdiction are cognizable via Rule 12(b)(1). Such a motion may
take the form of a facial or factual attack. See McElmurray v. Consol. Gov’t of
Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). A facial attack
“‘require[s] the court merely to look and see if [the] plaintiff has sufficiently
alleged a basis of subject matter jurisdiction” taking “the allegations in [the]
4

complaint . . . as true.’” Id. (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990)). On the other hand, a factual attack challenges “the existence of
subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside
the pleadings . . . are considered.” Id. (quoting Lawrence, 919 F.2d at 1529).
Accordingly, when resolving a factual attack on jurisdiction, the court may hear
conflicting evidence and decide the factual issues bearing on jurisdiction. Colonial
Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991).1 Here, the central
issue bearing on the abstention question is the status of a parallel state court
divorce proceeding which is not incorporated by the complaint. Thus, the court
considers the Defendants’ motion as a factual attack filed pursuant to Rule
12(b)(1).2
1

This represents the major difference between a motion decided under Rule 12(b)(6) and under
Rule 12(b)(1). In the Rule 12(b)(6) context, the court generally may not consider documents
outside the pleadings without converting the motion into a Rule 56 motion for summary
judgment. See Universal Express, Inc. v. U.S. S.E.C., 177 F. App’x 52, 53 (11th Cir. 2006). The
other distinction is that in the context of a factual attack on jurisdiction, the district court may
“serve as the fact-finder and may weigh the evidence, provided that the challenge to subject
matter jurisdiction does not implicate an element of the cause of action.” Scarfo v. Ginsburg,
175 F.3d 957, 961(11th Cir. 1999). Neither distinction is implicated here. First, “[a] district
court may take judicial notice of certain facts without converting a motion to dismiss into a
motion for summary judgment.” Universal Express, 177 F. App’x at 53. “Relevant public
documents” are among the categories of facts this court may appropriately notice without
converting a motion to dismiss into a motion for summary judgment. Bryant v. Avado Brands,
Inc., 187 F.3d 1271, 1278 (11th Cir. 1999). Thus, whether the court proceeds under Rule
12(b)(1) or Rule 12(b)(6), it may consider the various filings in the underlying state court
litigation. Second, the court is not asked to decide any factual questions bearing on the
abstention issue because the parties agree that divorce proceedings between Belevich and
Kuznitsyna are ongoing in state court. Accordingly, the proper characterization of the
Defendants’ motion is purely academic and does not alter the court’s decision making process.
2
In making this determination, the court follows the lead of other district courts in this circuit
who have applied Rule 12(b)(1) to motions seeking dismissal on the basis of Younger abstention.
5

III.

DISCUSSION

The parties agree that this case involves a federal question, and subject
matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Nonetheless, because
of ongoing divorce proceedings in state court, the Defendants contend that this
court should apply the doctrine first announced in Younger v. Harris, 401 U.S. 37
(1971) and abstain from the case in favor of the litigation in state court. As a
general rule, “federal courts have a ‘virtually unflagging obligation’ to exercise
their jurisdiction except in those extraordinary circumstances ‘where the order to
the parties to repair to the State court would clearly serve an important
countervailing interest.’”

Deakins v. Monaghan, 484 U.S. 193, 203 (1988)

(quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813,
817 (1976)). In Younger, however, the Supreme Court recognized that a limited
exception to this obligation existed when “‘extraordinary circumstances’
counsel[ed] abstention in favor of pending state proceedings.” Seminole Tribe of
See, e.g., Parker v. Judicial Inquiry Comm’n of the State of Ala., 212 F. Supp. 3d 1171, 1174–75
(M.D. Ala. 2016); Fairfield Cmty. Clean Up Crew, Inc. v. Hale, No. 2:17-cv-00308, 2017 WL
4865545, at *2 (N.D. Ala. Oct. 27, 2017). However, Younger appears to reflect a district court’s
“prudential decision not to exercise jurisdiction which it in fact possesses,” Weekly v. Morrow,
204 F.3d 613, 614–15 (5th Cir. 2000) (quotation omitted), an insight the Eleventh Circuit has
appeared to affirm. See Falanga v. State Bar of Ga., 150 F.3d 1333, 1335 n.2 (11th Cir. 1998)
(stating “it appears that ‘Younger abstention is not jurisdictional’”) (emphasis original) (quoting
Benavidez v. Eu, 34 F.3d 825, 829 (9th Cir. 1994)). In any event, the parties do not argue over
the form of the motion, and, as the court has explained, this characterization is merely academic.
Because there are no disputed factual issues that the court must resolve, whether the motion is
brought under Rule 12(b)(6) or Rule 12(b)(1), the court accepts “the allegations in the complaint
as true and construe[s] them in the light most favorable to the plaintiff.” Hunt v. Aimco Props.,
L.P. 814 F.3d 1213, 1221 (11th Cir. 2016).
6

Fla. v. Stranburg, 799 F.3d 1324, 1344 n.15 (11th Cir. 2015) (citation omitted).
Thus, although the federal government may be anxious “to vindicate and protect
federal rights and federal interests . . . [it must] do so in ways that will not unduly
interfere with the legitimate activities of the States.” Younger, 401 U.S. at 44.
As a threshold matter, this court must first determine whether the underlying
state proceedings fall into one of the three Younger categories of “exceptional
circumstances” justifying abstention: (1) “state criminal prosecutions;” (2) “civil
enforcement proceedings;” or (3) “civil proceedings involving certain orders that
are uniquely in furtherance of the state courts’ ability to perform their judicial
functions.” New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans,
491 U.S. 350, 368 (1989) (NOPSI); see also Sprint Commc’ns, Inc. v. Jacobs, 134
S. Ct. 584, 594 (2013) (clarifying that “Younger extends to the three ‘exceptional
circumstances’ identified in NOPSI, but no further”). Once the court is satisfied
that the underlying litigation falls into the Younger taxonomy, the following three
factors (the Middlesex factors) guide the inquiry into whether the particular
circumstances of the case demand abstention: (1) “do

. . . [the underlying

proceedings] constitute an ongoing state judicial proceeding;” (2) “do the
[underlying] proceedings implicate important state interests;” and (3) “is there an
adequate opportunity in the state proceedings to raise constitutional challenges.”
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432
7

(1982); see also 31 Foster Children v. Bush, 329 F.3d 1255, 1274–75 (11th Cir.
2003) (applying the Middlesex factors to determine whether Younger abstention is
proper). Younger abstention is appropriate only when all three of the Middlesex
factors are met. See, e.g., Hartford Courant Co. v. Pellegrino, 380 F.3d 83,100–01
(2d Cir. 2004); 31 Foster Children, 329 F.3d at 1274–75; Watson v. Fla. Judicial
Qualifications Comm’n, 618 F. App’x 487, 490 (11th Cir. 2015) (explaining that
all three Middlesex factors must be met before Younger applies). “While nonabstention remains the rule, the Younger exception is an important one . . .
[deriving] from ‘the vital considerations of comity between the state and national
governments.’” 31 Foster Children, 329 F.3d at 1274 (quoting Luckey v. Miller,
976 F.2d 673, 676 (11th Cir. 1992)).
For purposes of this motion only, the court assumes that the underlying
divorce proceeding qualifies as an “exceptional circumstance” potentially
justifying abstention under Younger.3

Turning next to the application of the

3

The parties also appear to assume that the underlying divorce proceedings qualify as an
exception circumstance. The court, on the other hand, is not entirely convinced. A divorce
proceeding is clearly neither a criminal action nor a state enforcement proceeding. Thus to fall
into a category of litigation susceptible to Younger abstention principles, it must qualify as a
“civil proceeding[] involving certain orders that are uniquely in furtherance of the state courts’
ability to perform their judicial functions.” NOPSI, 491 U.S. 368. There is a dearth of Eleventh
Circuit case law applying the Younger taxonomy after the Supreme Court clarified in Sprint
Communications that abstention was only appropriate for cases falling within the three categories
expressly delineated in NOPSI. Prior to Sprint Communications, however, the Eleventh Circuit
did affirm several decisions applying Younger in the domestic context. See Cormier v. Green,
141 F. App’x 808, 814 (11th Cir. 2005) (finding that the district court did not abuse its discretion
in applying Younger abstention to a Georgia divorce proceeding); Davis v. Self, 547 F. App’x
927, 930 (11th Cir. 2013) (finding that district court did not err in applying Younger abstention in
8

Middlesex factors, the court notes initially that the parties accept that the
underlying divorce proceeding implicates an important state interest, marital
relations, thereby satisfying the second Middlesex factor. See Ex parte Burrus, 136
U.S. 586, 593–94 (1890) (observing that “[t]he whole subject of the domestic
relations of husband and wife . . . belongs to the laws of the states and not to the
laws of the United States”). The parties’ dispute focuses on the first and third
Middlesex factors. More specifically, the Defendants contend that the litigation in
this court poses a risk of undue interference with the intertwined state court divorce
proceedings, and that Belevich’s claim can be fully litigated in state court. The
court disagrees with the Defendants that the first Middlesex factor, whether there is
an ongoing state judicial proceeding, weighs in favor of abstention. As a result, the
court does not address the third Middlesex factor.

a case “involving domestic relations and child custody”). Although states traditionally have a
strong interest in divorce and custody proceedings, see, e.g., Mansell v. Mansell, 490 U.S. 581,
587 (1989) (explaining that “domestic relations are preeminently matters of state law”), such
proceedings do not appear to involve orders critical to the state court’s ability to perform its
judicial function. See Dandar v. Church of Scientology Flag Serv. Org., Inc., 619 F. App’x 945,
948 (11th Cir. 2015) (identifying the enforcement of a settlement order in state court as an
attempt for the state court “to protect the viability of its mediation system” and thus critical for
the state court to perform its judicial function). Instead, the proceedings falling into this category
mostly deal with the ability of a state court to enforce particular orders or with alterations in the
procedural mechanisms the state court has developed to resolve disputes. See Id. at 948–49
(collecting cases finding that abstention is appropriate when a federal court would interfere with
the state court’s administration of its duties or ability to enforce its orders). In any event, this
court need not conclusively resolve this quandary because, even assuming that a divorce
proceeding constitutes an exceptional circumstance, the Middlesex factors do not justify
abstention.
9

A. Ongoing State Judicial Proceedings
There is no question that the divorce proceeding underlying this case is
ongoing in state court. But, the court’s inquiry does not end there. Instead,
Eleventh Circuit precedent provides “that an essential part of the first Middlesex
factor in [the] Younger abstention analysis is whether the federal proceeding will
interfere” with the proceeding in state court. 31 Foster Children, 329 F.3d at 1276.
“If there is no interference, then abstention is not required.” Id. To determine
“whether the federal proceeding would interfere with the state proceeding,” the
court considers “the relief requested and the effect it would have on the state
proceedings.” Id.
Notably, the federal court proceeding need not “terminate an ongoing [state]
proceeding” to qualify as interference. Watson, 618 F. App’x at 490. Instead,
“‘Younger governs whenever the requested relief would interfere with the state
court’s ability to conduct proceedings, regardless of whether the relief targets the
conduct of a proceeding directly.’” 31 Foster Children, 329 F.3d at 1276–77
(quoting Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002)).
The touchstone of this inquiry is whether “the requested federal relief would result
in meticulous and burdensome federal oversight of state court or court-like
functions.” Wexler v. Lepore, 385 F.3d 1336, 1340 (11th Cir. 2004). Thus, the
Eleventh Circuit has interpreted “the Younger doctrine as preventing federal courts
10

from being the grand overseers . . . [or] supervisor[s] of state litigation or the state
court.” Id. at 1341. The general rule remains, however, that “the pendency of an
action in the state court is no bar to proceedings concerning the same matter in the
Federal court having jurisdiction.”

Ambrosia Coal & Constr. Co. v. Pagés

Morales, 368 F.3d 1320, 1328 (11th Cir. 2004) (quotation omitted).
Here, the court does not doubt that a decision regarding the enforceability of
the I-864 Affidavit of Support rendered in this action could have a practical effect
on the underlying divorce proceedings, particularly with respect to potential
alimony payments and the state court’s division of marital assets between Belevich
and Kuznitsyna.

However, the tangential overlap between state and federal

proceedings, including the existential possibility of some interaction between the
two, is a far cry from the “meticulous and burdensome federal oversight” of state
court proceedings constituting undue interference under Younger. Wexler, 385
F.3d at 1340. In this federal action, Belevich seeks only the enforcement of an
obligation existing separately from his marriage and familial relationships. He
does not seek an injunction restraining the divorce proceedings in state court or
relief from an order or judgment entered against him pursuant to state law. Indeed,
the obligation at issue here has nothing to do with Belevich’s marital status, and it
would not require this court to serve as a “grand overseer” of the underlying state
court divorce proceedings.
11

At most, enforcement of the I-864 Affidavit of Support obligations could
partially duplicate or otherwise influence the state court’s ultimate division of
marital property in the underlying divorce proceeding. However, it is well settled
that a federal proceeding “may . . . affect, or for practical purposes pre-empt, a
future—or, as in the present circumstances, even a pending—state-court action”
without triggering Younger. NOPSI, 491 U.S. at 373. Put another way, “the mere
possibility of inconsistent results,” between parallel federal and state litigation, “is
insufficient to justify Younger abstention.” Rio Grande Cmty. Health Ctr., Inc. v.
Rullan, 397 F.3d 56, 71 (1st Cir. 2005); see also Wexler, 385 F.3d at 1341
(explaining that Younger abstention requires “undue interference” not simply a
practical relationship between federal and state proceedings). Thus, even if the
Defendants are correct that the enforceability of the I-864 Affidavit of Support is
“part and parcel” of the issues before the state court, that argument, standing alone,
is still insufficient to justify abstention. See Ambrosia Coal & Constr. Co., 368
F.3d at 1328. Because this case is only tangentially related to the underlying state
court litigation, the court finds that maintaining the federal case will not unduly
interrupt or otherwise interfere with the state court action. As a result, Younger
abstention is inappropriate and the court need not separately address the third
Middlesex factor involving the adequacy of the state forum.

12

See 31 Foster

Children, 329 F.3d at 1276 (holding “[i]f there is no interference, then abstention is
not required”).
IV.

CONCLUSION AND ORDER
For the foregoing reasons, the court concludes that Younger abstention is not

justified by the mere presence of a parallel divorce proceeding in state court. This
court’s exercise of jurisdiction “merely preserves the federal forum for federal
claims raised by [a] plaintiff[] in a federal proceeding.” Wexler, 385 F.3d at1341.
It does not represent a federal takeover of the issues presented in the underlying
case nor would it have the practical effect of ending or dictating the final outcome
of that proceeding. Therefore, because “there is no doctrine that the availability or
even the pendency of state judicial proceedings excludes the federal courts,”
NOPSI, 491 U.S. at 359, the Defendants’ motion, doc. 6, is DENIED.

The

Defendants have 21 days from the entry of this order to serve an answer, as
required by Rule 12(a) of the Federal Rules of Civil Procedure.
DONE the 9th day of March, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

13