SE Property Holdings, LLC v. Saint Family Limited Partnership et al

Filing 29

Order GRANTING 28 Defendants' Motion to Correct by Supplementing Defendants' Reply to Plaintiff's Response. The lengthy indented paragraph on pages 2 and 3of the Motion to Correct is substituted for the fourth paragraph of Section II.A. of Defendants Reply [doc. 24] as found on pages 11 and 12. 10 MOTION to Dismiss Each Count or in the Alternative for a More Definite Statement of Count Three and Motion for Court to Abstain or in the Alternative Stay Proceedings is DENIED in its entirety. Defendants' Answers are due on or before 5/15/2017. Signed by District Judge William H. Steele on 5/1/2017. (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SE PROPERTY HOLDINGS, LLC,
Plaintiff,
v.
SAINT FAMILY LIMITED
PARTNERSHIP, et al.,
Defendants.

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CIVIL ACTION 16-0567-WS-MU

ORDER
This matter comes before the Court on defendants’ “Motion to Dismiss or in the
Alternative for More Definite Statement and Motion for Court to Abstain or in the Alternative
Stay” (doc. 10). The Motion has been the subject of extensive briefing and is now ripe.1 Also
pending is Defendants’ Motion to Correct (doc. 28), which is granted. The revised text from the
Motion to Correct is hereby substituted for the fourth paragraph of Section II.A. of Defendants’
Reply (doc. 24), beginning on page 11 and extending to the top of page 12.
I.

Relevant Background.
This case is one of a number of fraudulent transfer actions that SE Property Holdings,

LLC (“SEPH”), is pursuing in this District Court against guarantors of multimillion dollar loans
made by SEPH’s predecessor for the development and financing of certain real estate projects in
Orange Beach, Alabama known as Bama Bayou and Marine Park. When the projects failed and
the loans went into default, the guarantors declined to pay, thereby embroiling SEPH and the
1

At the outset, the Court observes that defendants filed a 22-page Reply without
prior judicial approval, in contravention of the Local Rules. See Civil L.R. 7(e) (“[R]eply briefs
must not exceed fifteen (15) pages. … No brief exceeding these page limitations may be filed
unless the Court has previously granted leave to file a brief in excess of these limits.”).
Notwithstanding this violation, and in the interest of avoiding the delays that would occur if (as
is customary) the Reply were stricken for non-compliance with Civil L.R. 7(e), the Court in its
discretion will accept and consider the Reply in its present form.

guarantors in many years of litigation spanning numerous cases and courts, including this
District Court and the Mobile County Circuit Court, as well as probate and bankruptcy courts.
In this particular action, SEPH filed a Complaint (doc. 1) against defendants, Saint
Family Limited Partnership (“SFLP”); Frances J. Saint, in her individual capacity; Frances J.
Saint, in her capacity as Personal Representative of the Estate of John B. Saint, deceased (the
“Estate” or the “Saint Estate”); and Kasubra, LLC.2 The well-pleaded factual allegations of the
Complaint, which are accepted as true for purposes of the Motion to Dismiss analysis, include
the following: During the period of 2005 to 2007, John Saint (“Saint”) executed certain
guaranties in favor of SEPH’s predecessor, Vision Bank, pursuant to which Saint guaranteed a
total of $7,875,000 in principal on Vision Bank loans for the Bama Bayou and Marine Park
developments. (Doc. 1, ¶ 8.) Saint was not only the largest individual owner of the Bama Bayou
and Marine Park projects, but he was also the single largest individual guarantor of the subject
loans. (Id.) Vision Bank “relied greatly on John Saint’s guaranties and his reported net worth
and assets in its decision to make the Loans and extend credit to Bama Bayou and Marine Park.”
(Id.)3
According to the Complaint, John Saint was aware by no later than early 2007 that Bama
Bayou’s financial condition was rapidly deteriorating (i.e., that it was “running out of cash”).
Vision Bank relied on Saint’s guaranties and reported assets / net worth to loan an additional $5
million to Bama Bayou in September 2007 on a short-term basis to help service the debt. (Id., ¶
9.) Even so, Bama Bayou and Marine Park ultimately defaulted on the loans and notes in
2

Although the Complaint asserts purely state-law causes of action arising under
Alabama law, federal subject matter jurisdiction was properly predicated on the diversity
provisions of 28 U.S.C. § 1332. Indeed, the Complaint’s allegations confirm that there is
complete diversity of citizenship between SEPH and defendants, and that the amount in
controversy exceeds $75,000, exclusive of interest and costs.
3

The Complaint states that John Saint died on November 28, 2014; that his last
will and testament was admitted to probate in the Mobile County Probate Court on December 11,
2014; and that letters testamentary were issued to his widow, defendant Frances Saint, in her
capacity as personal representative of his Estate. (Id., ¶ 4.) According to the Complaint,
documents on file in the Probate Court reflect that at the time of his death, Saint held assets
totaling $2,009,355, versus liabilities of $32,739,407. (Id., ¶ 19 n.1.) The Complaint further
alleges that “[c]laims totaling over $25,000,000 have been filed against the Saint Estate by
creditors of John Saint.” (Id.)

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December 2008. (Id.) Vision Bank demanded payment from Saint in accordance with his
guaranties; however, he refused to pay, and “[t]he entire debt remains unpaid” today. (Id.) The
total amount of Saint’s indebtedness to SEPH as of the filing of the Complaint in November
2016 is alleged to be in excess of $20,905,000 in principal and accrued interest (exclusive of
attorney’s fees, expenses and costs of collection). (Id., ¶ 25.)
The Complaint also chronicles what it describes as a series of asset transfers undertaken
by John Saint mostly between December 2006 and October 2007, which had the effect of
“transferr[ing] away the bulk of his wealth and assets (over $35,000,000 in value) to entities he
owned or controlled, to family members and to other insiders.” (Id., ¶ 21.) Those asset transfers
are enumerated in the Complaint as follows: (i) on December 12, 2016, Saint transferred 500
shares in JDC Acquisition Corporation (valued at $31 million, according to the Complaint) to
defendant SFLP; (ii) on December 14, 2016, Saint and defendant Frances Saint transferred their
70% interest in defendant Kasubra (valued at $3.4 million) to SFLP; (iii) on June 29, 2007, Saint
transferred his ownership interest in a house and lot in Dauphin Island, Alabama (valued at
$275,000) to Frances Saint; (iv) in July or August 2007, Saint transferred certain Wachovia
Securities (valued at $10,000), 8,307 shares of Wachovia Corporation (valued at $450,000),
6,294 shares of Colonial Bancgroup (valued at $200,000), and 100 shares of Colonial Properties
(valued at $14,000) to SFLP; (v) also in 2007, Saint transferred his stock in Detroit Edison
(valued at $20,000) to SFLP; (vi) on October 29, 2007, Saint transferred his ownership interest in
his residence on Chimney Top Drive South in Mobile, Alabama (valued at $275,000) to Frances
Saint; (vii) on October 29, 2007, Saint transferred his 98% ownership interest in SFLP as a
limited partner to Frances Saint, with Saint and Frances Saint each retaining a 1% ownership
interest in SFLP as general partners; and (viii) in 2007 or 2008, Saint transferred the contents of
his Morgan Keegan account (valued at $31,000) to SFLP. (Id., ¶¶ 10-20.)4 The Complaint
alleges that, as a direct result of these transfers, Saint’s holdings plummeted from $45,725,000 in
valuation to just a shade over $2 million. (Id., ¶ 20.)
4

Several other transfers are also recited in the Complaint; however, the foregoing
items appear to account for most of the value of the assets that SEPH claims were fraudulently
transferred and for which it seeks relief in this action. The valuation figures set forth in the
Complaint for these various assets are purportedly culled from a personal financial statement that
Saint furnished to Vision Bank in May 2007. (Id., ¶ 20.)

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The Complaint further alleges that John Saint concealed these transfers from Vision Bank
by, among other things, delivering to Vision a false, inaccurate and fraudulent personal financial
statement in May 2007. (Id., ¶¶ 20-21.) According to the Complaint, Saint listed in that
financial statement many assets he had already transferred away (including most notably the $31
million in JDC Acquisition stock and the $3.4 million interest in Kusabra, which combined to
total 77% of Saint’s net worth as reported in the financial statement) some five months earlier, in
December 2006. (Id., ¶ 21.) Because of this and other acts of concealment by Saint and Frances
Saint, plaintiff alleges, SEPH/Vision was unaware of these transfers until September/October
2016. (Id.) Plaintiff avers that, had Saint’s 2007 financial statement accurately reflected these
transfers, it would not have continued to fund the Marine Park loan, would not have made
additional loans for the Bama Bayou project, and would not have extended the loans’ maturity
dates on multiple occasions to allow Bama Bayou and Marine Park time to seek out other
financing. (Id., ¶ 22.)
On the strength of these factual allegations, the Complaint asserts five causes of action
against defendants. Counts One and Two are statutory claims of fraudulent transfer under the
Alabama Uniform Fraudulent Transfer Act, Ala. Code §§ 8-9A-1 et seq. (“AUFTA”). In
particular, Count One alleges that the above-described transfers are constructive fraudulent
transfers pursuant to Ala. Code §§ 8-9A-5 and/or 8-9A-4(c); meanwhile, Count Two alleges that
those transfers are actual fraudulent transfers pursuant to Ala. Code § 8-9A-4(a). The remedies
sought by SEPH for these alleged AUFTA violations include a monetary judgment against all
defendants (as well as subsequent transferees) for compensatory and punitive damages, as well
as declaratory relief “that the Court set aside said fraudulent transfers and declare such transfers
(and any subsequent transfers of the property and assets) null and void.” (Id., at 11-12.)
Count Three is a claim for conspiracy to defraud, alleging that Saint, defendants “and
other subsequent transferees conspired to commit said fraud on SEPH in an effort to deprive
SEPH of assets that could be used to pay the debts owed to SEPH by John Saint and the Saint
Estate.” (Id., ¶ 33.) Counts Four and Five are common-law fraud causes of action against the
Estate relating to John Saint’s May 2007 personal financial statement. As pleaded, the claims
are that Saint “intentionally misrepresented his assets and net worth to Vision” in that statement
(fraudulent representation), and that Saint breached his “duty to disclose to and inform Vision”

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of such asset transfers before, contemporaneously with, and after submitting that financial
statement to Vision Bank (fraudulent concealment). (Id., ¶¶ 36, 39.)
Defendants now move for dismissal of all such claims and causes of action.
Alternatively, defendants move for a more definite statement as to Count Three and abstention or
a stay of this matter in its entirety pending the outcome of proceedings involving the John Saint
Estate that are pending in Mobile County Probate Court.
II.

Analysis.
A.

Counts One and Two and the “Real Party in Interest” Objection.

With respect to SEPH’s claims under the AUFTA, defendants maintain that dismissal is
appropriate because SEPH is not the real party in interest for those fraudulent transfer claims.5
Defendants’ position is that the “real party in interest” for the fraudulent transfer claims is not
SEPH, but is instead defendant Frances Saint, in her capacity as Personal Representative of the
Estate of John Saint.
In so contending, defendants’ reasoning begins with the proposition that, as pleaded in
the Complaint, Saint’s liabilities were approximately 16 times greater than his assets at the time
of his death (roughly $32 million versus roughly $2 million), and creditors have filed more than
$25 million in claims against the Saint Estate in Probate Court. Thus, the claims against the
Saint Estate outstrip its assets by a wide margin. Next, defendants point to a section of the
Alabama Probate Procedure Act that reserves for the personal representative the power to
recover property as needed to pay the decedent’s unsecured debts, to-wit:
“The property liable for the payment of unsecured debts of a decedent includes all
property transferred by the decedent by any means which is in law void or
voidable as against creditors, and subject to prior liens, the right to recover this
property, so far as necessary for the payment of unsecured debts of the
decedent, is exclusively in the personal representative.”
Ala. Code § 43-2-838 (emphasis added).6 Because § 43-2-838 vests authority in recovering
property transferred by the decedent in a void or voidable manner exclusively with the personal
5

Of course, the Federal Rules of Civil Procedure require that “[a]n action must be
prosecuted in the name of the real party in interest.” Rule 17(a)(1), Fed.R.Civ.P.
6

This section appears never to have been construed by courts applying Alabama
law. Indeed, neither side cites any authorities examining the Alabama provision in the context of
an action in which a creditor has brought claims under the Uniform Fraudulent Transfer Act in a
(Continued)
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representative, and because these assets are needed to pay the Estate’s debts which greatly
exceed its assets, defendants conclude that Frances Saint (as the Estate’s personal representative)
is the real party in interest for Counts One and Two. Accordingly, defendants posit, she must be
realigned as a plaintiff pursuant to Rule 17(a) of the Federal Rules of Civil Procedure. Of
course, any such realignment would destroy federal diversity jurisdiction (because Frances
Saint’s citizenship is the same as that of other defendants) and require dismissal. Defendants say
this result is warranted from a public policy standpoint, in order to prevent “a multitude of
lawsuits filed by separate creditors of the deceased which could result in inconsistent
determinations by a multitude of courts setting aside the transfers of the same assets in favor of
different creditors.” (Doc. 11, at 9.)7
As noted in footnote 6, supra, the parties have not identified a single case authority
construing the language of § 43-2-838 in the context of Uniform Fraudulent Transfer Act claims
brought by a creditor against an estate for transfers made by the decedent to the estate’s personal
representative. Thus, this Court’s analysis must focus on the statutory language itself.8 By its
terms, § 43-2-838 vests the “right to recover” the decedent’s “property” “exclusively in the
personal representative” where (i) the decedent transferred property “by any means which is in
law void or voidable as against creditors;” and (ii) recovery of the property is “necessary for the

court of general jurisdiction. Moreover, the Court has searched decisional authorities from both
Alabama and 14 other jurisdictions (Alaska, Arizona, Colorado, Hawaii, Idaho, Maine,
Massachusetts, Minnesota, Montana, Nebraska, North Dakota, South Carolina, South Dakota,
Utah) that have adopted the Uniform Probate Code (“UPC”) in vain for any meaningful
discussion of UPC § 3-710, which Alabama adopted as § 43-2-838.
7

There is no indication in the record that any other creditor of John Saint has
initiated legal proceedings in any forum seeking to set aside the asset transfers described in
SEPH’s Complaint.
8

“When the language of a statute is plain and unambiguous we must apply that
meaning.” Cox Enterprises, Inc. v. Pension Ben. Guar. Corp., 666 F.3d 697, 704 (11th Cir.
2012); see also Silva-Hernandez v. U.S. Bureau of Citizenship and Immigration Services, 701
F.3d 356, 361 (11th Cir. 2012) (“Those who ask courts to give effect to perceived legislative
intent by interpreting statutory language contrary to its plain and unambiguous meaning are in
effect asking courts to alter that language, and courts have no authority to alter statutory
language.”) (citation omitted).

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payment of unsecured debts of the decedent.” This plain language would appear to support
defendants’ position insofar as SEPH may be seeking in Counts One and Two the remedy of
having the transfers set aside and the transferred assets restored to the Estate of John Saint for
purposes of paying Saint’s unsecured debts in probate proceedings.
A fair reading of Counts One and Two, however, reflects that SEPH seeks remedies far
beyond revesting title to the transferred assets in the Estate. Indeed, in both AUFTA claims,
SEPH demands “compensatory and punitive damages” against the Saint Estate, Frances Saint,
SFLP and Kasubra; as well as that the Court “declare such transfers (and any subsequent
transfers of the property and assets) null and void.” (Doc. 1, at 11-12.) These remedies are
outside the scope of the plain language of § 43-2-838, which gives the Estate’s personal
representative the exclusive right “to recover this property, so far as necessary for the payment of
the unsecured debts of the decedent.” In seeking money damages from the transferees of the
subject property, SEPH is not seeking to recover property to pay John Saint’s unsecured debts,
but is rather pursuing compensation from those defendants pursuant to Alabama Code § 8-9A8(b) for the harm they allegedly caused SEPH by receiving those transfers.9 Moreover, a
declaratory judgment that the transfers violate the AUFTA would not appear to implicate § 43-2838. Stated differently, nothing in § 43-2-838 purports to grant a personal representative the
exclusive right to pursue any and all fraudulent transfer remedies related to the decedent’s estate;
rather, it only affords the personal representative the exclusive right “to recover this property, so
far as necessary for the payment of unsecured debts of the decedent.” The remedies sought by
SEPH – other than setting aside the fraudulent transfers – are not reserved for Frances Saint (as
personal representative of the Estate) by the clear language of § 43-2-838. That is to say, while §
43-2-838 gives Frances Saint the exclusive right to recover property that belongs in the Estate for
administration in the Mobile County Probate Court proceedings, it does not confer upon her the

9

More precisely, SEPH is demanding a money judgment for damages against the
transferees. Contrary to defendants’ position, a money judgment for damages is not properly
equated to recovery of transferred property to pay Saint’s debts. Were the law otherwise, the
result would be that the personal representative has the exclusive authority to bring a damages
claim on behalf of the estate’s creditors against any alleged co-conspirator of the decedent.
Defendants proffer neither legal authority nor argument to support such an outcome.

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exclusive right to pursue any and all remedies that are or might be available to creditors under
the AUFTA.10
Because certain remedies are still available to it in Counts One and Two, notwithstanding
the constraints imposed by § 43-2-838, SEPH – and not Frances Saint as personal representative
– is the real party in interest for those claims, and diversity jurisdiction properly lies as to those
claims without realigning Frances Saint as a plaintiff. Counts One and Two do not run afoul of
Rule 17(a). The Motion to Dismiss is therefore denied on this point.11
10

The available statutory remedies are extensive. See, e.g., Ala. Code § 8-9A-7(a)
(enumerating remedies available to creditors as including “[a]voidance of the transfer to the
extent necessary to satisfy the creditor’s claim,” “attachment or other provisional remedy against
the asset transferred or other property of the transferee,” “injunction against further disposition
… of the asset transferred or of other property,” “[a]ppointment of a receiver to take charge of
the asset transferred or of other property of the transferee,” or “[a]ny other relief the
circumstances may require”).
11

The Court reaches this conclusion for another reason, as well. The well-pleaded
factual allegations of the Complaint are that Frances Saint was the beneficiary of the vast
majority of the challenged asset transfers. Indeed, the fact pattern described in the Complaint is
that John Saint repeatedly transferred his own assets (including $31 million of JDC Stock and a
$3.4 million ownership interest in Kasuba) into defendant Saint Family Limited Partnership, then
transferred a 98% interest in SFLP to Frances Saint in October 2007. Thus, Frances Saint is both
the personal representative of the Estate, and the recipient/beneficiary of the bulk of the assets
whose transfers are alleged to be fraudulent. Under defendants’ construction of the Alabama
Probate Procedure Act, only Frances Saint (in her role as personal representative) is empowered
to take any action against the allegedly fraudulent transfers from John Saint to herself for the
benefit of creditors such as SEPH. Not surprisingly, Frances Saint has not sued herself under the
AUFTA, either in Probate Court or elsewhere, in the nearly two and a half years following the
admission of John Saint’s last will and testament to probate in December 2014. The Court does
not and will not interpret § 43-2-838 as effectively suspending the AUFTA in circumstances
such as these, leaving SEPH with no remedy. Nor does defendants’ realignment argument have
merit where, as here, the relief being sought is primarily against Frances Saint, the alleged
recipient of the fraudulently transferred assets. Defendants’ Motion to Dismiss posits that
Frances Saint (the party against whom relief is sought) is really a plaintiff, not a defendant, in
this case for Rule 17(a) purposes. The plain language of the Complaint – and common sense –
shows otherwise. SEPH brought this action to obtain judgment against Frances Saint for
millions of dollars that her late husband transferred to her before his demise. To label her as
anything other than a defendant and to align her with SEPH in these circumstances would be to
ignore that fundamental reality and do violence to realignment principles articulated in binding
authorities. See, e.g., City of Vestavia Hills v. General Fidelity Ins. Co., 676 F.3d 1310, 1313-14
(11th Cir. 2012) (explaining that “federal courts are required to realign the parties in an action to
reflect their interests in the litigation,” that parties “cannot confer diversity jurisdiction upon the
(Continued)
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B.

Counts One and Two and the Timeliness Objection.

Defendants’ next ground for their Motion to Dismiss is an argument that Count One and
a portion of Count Two are time-barred. This timeliness objection is structured as follows: By
the plain language of the Complaint, all or substantially all of the transfers that SEPH challenges
occurred during the time frame of 2006, 2007 and 2008. (Doc. 1, ¶¶ 11-18.) Count One is a
constructive fraudulent transfer claim brought pursuant to Alabama Code §§ 8-9A-4(c) and 89A-5. (Id., ¶ 27.) Count Two is an actual fraudulent transfer claim brought pursuant to Alabama
Code § 8-9A-4(a). (Id., ¶ 30.) Pursuant to the AUFTA, a claim for relief with respect to a
fraudulent transfer under §§ 8-9A-4(c) or 8-9A-5(a) “is extinguished unless action is brought …
within four years after the transfer was made when the action is brought by a creditor whose
claim arose before the transfer was made.” Ala. Code § 8-9A-9(3). Likewise, AUFTA provides
that a claim for relief with respect to a fraudulent transfer under § 8-9A-4(a) “is extinguished
unless action is brought … within six years after the transfer of personal property was made.”
Ala. Code § 8-9A-9(1).12 Defendants’ position is that the Complaint’s allegations confirm all
transfers at issue in Count One and all personal property transfers at issue in Count Two occurred
outside the operative four- or six-year periods preceding the filing of the Complaint, such that
those claims have been extinguished by operation of § 8-9A-9.

federal courts by their own designation of plaintiffs and defendants,” and that courts must
“arrange the parties according to their sides in the dispute”) (citations omitted). Upon any
reasonable examination of the interests in this litigation, SEPH and Frances Saint are not on the
same side. There is no unity of interests between them as to the issues joined herein; rather, their
interests are unequivocally and diametrically opposed. Frances Saint is properly aligned as a
defendant, on the opposite side from SEPH, and diversity jurisdiction remains intact as to Counts
One and Two.
12

Certain aspects of Count Two involve transfers of real property, not personal
property, alleged to have occurred in 2007 or 2008. (Doc. 1, ¶¶ 15, 18.) Those portions of
Count Two are subject to a 10-year limitations period. See Ala. Code § 8-9A-9(1) (“A claim for
relief with respect to a fraudulent transfer under this chapter is extinguished unless action is
brought … [u]nder Section 8-9A-4(a) within 10 years after the transfer of real property was
made.”). SEPH filed its Complaint in November 2016, well within that 10-year period.
Accordingly, defendants do not maintain that the real-property transfer components of Count
Two are time-barred.

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SEPH’s rejoinder to the timeliness objection is to invoke Alabama’s “discovery rule.”
Under well-settled Alabama law, “[i]n a fraud action, the running of the limitations period is
tolled pursuant to the ‘discovery rule’ found in § 6-2-3, Ala.Code 1975.” Target Media Partners
Operating Co. v. Specialty Marketing Corp., 177 So.3d 843, 862 (Ala. 2013). That statute
provides that “[i]n actions seeking relief on the ground of fraud where the statute has created a
bar, the claim must not be considered as having accrued until the discovery by the aggrieved
party of the fact constituting the fraud.” Ala. Code § 6-2-3; see also DGB, LLC v. Hinds, 55
So.3d 218, 224 (Ala. 2010) (“this statute is usually applicable to cases wherein fraud is the basis
of the cause of action”) (citation omitted). “The question of when a party discovered or should
have discovered the fraud is generally one for the jury.” Potter v. First Real Estate Co., 844
So.2d 540, 546 (Ala. 2002) (citation omitted). SEPH correctly notes that the Complaint includes
specific factual allegations that, as a result of defendants’ acts of concealment, SEPH did not
discover the challenged transfers until September/October 2016, such that the § 8-9A-9
limitations clock began ticking at that time. Plaintiff has adequately pleaded the discovery rule,
so as to render Counts One and Two timely, at least for purposes of Rule 12(b)(6) review.
Notwithstanding the foregoing, defendants fire back that the limitations periods
prescribed by Alabama Code § 8-9A-9 are actually statutes of repose, not statutes of limitation.
The difference between the two may be succinctly summarized as follows: “While a statute of
limitations is intended to require plaintiffs to pursue diligent prosecution of known claims by
limiting the time to bring suit based on the date when the cause of action accrued, … a statute of
repose puts an outer limit on the right to bring a civil action …. The repose provision is therefore
equivalent to a cutoff, in essence an absolute bar on a defendant’s temporal liability.” Dusek v.
JPMorgan Chase & Co., 832 F.3d 1243, 1247 (11th Cir. 2016) (citations and internal quotation
marks omitted). Further, “statutes of repose are distinct from statutes of limitation in that they
are not subject to equitable tolling, even in cases of extraordinary circumstances beyond a
plaintiff’s control.” Id. (citations and internal quotation marks omitted). If § 8-9A-9 were a
statute of repose, then, Alabama’s “discovery rule” would be inapplicable, and SEPH’s Count
One and most of Count Two would be untimely pursuant to the absolute statutory bar,
irrespective of the discovery rule.
Defendants’ timeliness objection fails at the Motion to Dismiss stage because they have
not persuasively shown that § 8-9A-9 is a statute of repose. As noted, the baseline rule in

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Alabama is that “[i]n actions seeking relief on the ground of fraud where the statute has created a
bar, the claim must not be considered as having accrued until the discovery by the aggrieved
party of the fact constituting the fraud.” Ala. Code § 6-2-3. Prior to Alabama’s enactment of the
AUFTA in 1989, Alabama courts applied the discovery rule to fraudulent transfer cases. See,
e.g., Donaldson v. Williams, 222 So.2d 725, 726 (Ala. 1969) (“We are of the opinion that the ten
years within which the bill could be filed did not begin to run until the discovery of the fraud, or
when by the exercise of due diligence, the fraud might have been discovered.”). Neither the text
of § 8-9A-9 nor its official commentary says anything about displacing, overriding or abolishing
the discovery rule in this context; to the contrary, that commentary specifies that subsection (2)
(on which defendants rely) “adopts the present Alabama law” and that subsection (3) (on which
defendants also rely) “changes present Alabama law” only by altering the six- or 10-year period
to avoid transfers based on constructive fraud to four years. (See Alabama Comment to Ala.
Code § 8-9A-9.) And the AUFTA expressly provides that “[u]nless displaced by the provisions
of this chapter, the principles of law and equity, including … the law relating to … fraud …
supplement its provisions.” Ala. Code § 8-9A-10. In light of these circumstances, it is not
surprising that case authorities and commentators alike have opined that Alabama’s discovery
rule is applicable to the time limits specified in § 8-9A-9. See Cotter v. Gwyn, 2016 WL
4479510, *14 (E.D. La. Aug. 25, 2016) (declining to dismiss plaintiff’s AUFTA claims as
untimely “because there remains an issue as to when the limitation period on his AFTA claims
began to run. Fraud claims under Alabama law do not accrue until the discovery by the
aggrieved party of the fact constituting the fraud or the cause of action fraudulently concealed.”)
(footnote and internal quotation marks omitted); Tilley’s Alabama Equity § 11:10 (discussing
Alabama Code § 8-9A-9, and opining that “[t]he statute of limitations did not begin to run until
discovery of facts that would provoke inquiry in the mind of a reasonable and prudent man that,
if followed up, would lead to the discovery of the fraud”). This Court reaches the same
conclusion.13

13

In framing § 8-9A-9 as a statute of repose, defendants argue that “most states that
have addressed the issue have determined that statutes based on Section 9 of the UFTA, like
Alabama Code § 8-9A-9, are Statutes of Repose rather than Statutes of Limitation.” (Doc. 28, at
2.) The problem with this argument is that Alabama expressly did not adopt Section 9 of the
UFTA wholesale. Indeed, the Alabama Comment to § 8-9A-9 indicates, “This chapter generally
(Continued)
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Because movants have not persuasively shown that Alabama Code § 8-9A-9 operates as a
statute of repose rather than a statute of limitations, that section remains subject to Alabama’s
discovery rule as codified at § 6-2-3. The Complaint adequately alleges that SEPH did not
discover crucial facts animating Counts One and Two until September or October 2016;
therefore, Rule 12(b)(6) dismissal on timeliness grounds is inappropriate. This prong of the
Motion to Dismiss is denied.14

does not adopt the statute of limitations contained in the Uniform Act.” As such, looking to
jurisdictions that have adopted Section 9 of the UFTA to shed light on the meaning of Alabama
Code § 8-9A-9 (which on its face “generally does not adopt” Section 9 of the UFTA) is an
unhelpful and illogical exercise. Moreover, in their original Reply, defendants devoted one
sentence to a textual analysis of § 8-9A-9; however, that sentence was deleted and superseded
with the subsequent substitution of a new paragraph. (Compare doc. 24 at 11-12 to doc. 28 at 23.) Even if that textual analysis remained, defendants place far too much weight on the solitary
word “extinguished.” Section 8-9A-9 bears little resemblance to the verbiage used in Alabama’s
statutes of repose. See, e.g., Ala. Code § 6-5-221(a) (“no relief can be granted on any cause of
action which accrues or would have accrued more than thirteen years after the substantial
completion of construction of the improvement on or to the real property, and any right of action
which accrues or would have accrued more than thirteen years thereafter is barred”); Ala. Code §
6-5-482(b) (“notwithstanding any provisions of” § 6-2-3, “no action shall be commenced more
than four years after the act, omission, or failure complained of”); Alabama Code § 6-5-574(b)
(same). The point is simple: Alabama has clearly designated statutes of repose as such via the
use of unambiguous language bypassing traditional discovery and accrual rules. Section 8-9A-9
contains no such terms. It does not purport to limit application of § 6-2-3’s discovery rule or
otherwise specify that claims accruing after a certain time period are absolutely barred. The
Court will not impute an intent on the part of the Alabama legislature to engraft a statute of
repose on the AUFTA, where the legislature did not use clear language (as it has in other
contexts involving statutes of repose) to effectuate such a result, and in fact reiterated that
Alabama’s law of fraud (which would include the discovery rule found at § 6-2-3) generally
supplements the AUFTA; and where the official commentary confirms that § 8-9A-9 “adopts the
present Alabama law” in material respects, as to particular limitations periods.
14

In their Reply, defendants advance a brand-new argument that the Complaint does
not sufficiently plead that SEPH discovered the facts giving rise to Counts One and Two within
the limitations periods set forth in Alabama Code § 8-9A-9. (See doc. 24, at 14-16.) As a
threshold matter, this argument is improper because defendants raised it for the first time in a
reply. See, e.g., Brown v. CitiMortgage, Inc., 817 F. Supp.2d 1328, 1332 (S.D. Ala. 2011)
(“New arguments presented in reply briefs are generally not considered by federal courts.”)
(citations omitted); Kirksey v. Schindler Elevator Corp., 2016 WL 7116223, *6 (S.D. Ala. Dec.
6, 2016) (“this argument is improper because it is newly raised in a reply although it was
available earlier”); United States v. Crumb, 2016 WL 4480690, *17 (S.D. Ala. Aug. 24, 2016)
(“this kind of new, previously available argument in support of a motion is not appropriately
(Continued)
-12-

C.

Count Three and the Particularity Objection.

As noted, Count Three consists of a common-law claim of conspiracy to defraud.
According to the Complaint, John Saint, Frances Saint, SFLP, Kasubra and other transferees
“conspired to commit said fraud on SEPH in an effort to deprive SEPH of assets that could be
used to pay the debts owed to SEPH by John Saint and the Saint Estate.” (Doc. 1, ¶ 33.) In their
Motion to Dismiss, defendants cite the heightened pleading requirement of Rule 9(b), and assert
that Count Three falls short of that standard.
The Federal Rules of Civil Procedure provide that “[i]n alleging fraud or mistake, a party
must state with particularity the circumstances constituting fraud or mistake.” Rule 9(b),
Fed.R.Civ.P. There is no rigid, inflexible, one-size-fits-all checklist for pleading fraud with
particularity. See Tello v. Dean Witter Reynolds, Inc., 494 F.3d 956, 972-73 (11th Cir. 2007)
(“While allegations of date, time or place satisfy the Rule 9(b) requirement that the
circumstances of the alleged fraud must be pleaded with particularity, we have acknowledged
that alternative means are also available to satisfy the rule in substantiating fraud allegations.”)
(citation and internal marks omitted). And the Eleventh Circuit has emphasized that “[t]he
application of Rule 9(b) … must not abrogate the concept of notice pleading.” Ziemba v.
Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (citation and internal quotation marks
presented for the first time in a reply”). Even if this new argument set forth in defendants’ Reply
were properly considered on the merits (which it is not), the result would be unchanged.
Defendants’ argument is that, given the Complaint’s allegations that Bama Bayou and Marine
Park exhibited symptoms of financial instability and Vision Bank’s professed reliance on John
Saint’s 2007 personal financial statement, “[o]rdinary prudence requires that the Plaintiff should
have investigated the finances” of John Saint and thereby discovered the false representations in
his financial statement long before late 2016. (Doc. 24, at 15.) This debate about what Vision
Bank / SEPH should have done to investigate Saint’s finances and when they should have done it
for purposes of the discovery rule is an argument for the finder of fact at trial, and therefore
cannot be resolved in defendants’ favor on a Motion to Dismiss. The same goes for defendants’
contention that Saint’s failure to pay anything on his guaranties in 2008 should have caused
Vision Bank “to discover in 2008 that John Saint no longer owned certain of his properties listed
on his 2007 financial statement.” (Id. at 16.) Again, Alabama law is clear that “[t]he question of
when a party discovered or should have discovered the fraud is generally one for the jury.”
Jones v. Kassouf & Co., P.C., 949 So.2d 136, 140 (Ala. 2006) (citations omitted). Whether a
reasonable person would have inquired into the veracity of John Saint’s 2007 financial statement
earlier under the circumstances alleged here is a question not amenable to conclusive disposition
via the Rule 12(b)(6) mechanism.

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omitted). Indeed, the Rule 9(b) particularity requirement “must be read in conjunction with
Federal Rule of Civil Procedure 8’s directives that a complaint need only provide a short and
plain statement of the claim,” and courts considering motions to dismiss for failure to plead fraud
with particularity “should always be careful to harmonize the directives of [R]ule 9(b) with the
broader policy of notice pleading found in Rule 8.” Hill v. Morehouse Medical Associates Inc.,
2003 WL 22019936, *3 (11th Cir. Aug. 15, 2003) (citations and internal quotation marks
omitted); see also Urquilla-Diaz v. Kaplan University, 780 F.3d 1039, 1051 (11th Cir. 2015)
(“Rule 8’s pleading standard is supplemented but not supplanted by Federal Rule of Civil
Procedure 9(b).”).
Under any reasonable reading of the pleadings, SEPH has set forth the circumstances of
the alleged fraud with particularity. Indeed, the Complaint alleges that John Saint guaranteed the
repayment to plaintiff of millions of dollars in loans, then shifted the bulk of his own assets to
family members and artificial entities that he controlled (i.e., the other defendants in this action),
after which he misrepresented to plaintiff that he still held those assets, all “in an effort to
deprive SEPH of assets that could be used to pay the debts owed to SEPH by John Saint and the
Saint Estate.” (Doc. 1, ¶ 33.) Based on the particular factual allegations (including allegations
detailing the relationships among defendants, the transfers at issue, and the relevant time frame)
pleaded in the Complaint, the Court readily finds that defendants have been alerted to the precise
misconduct with which they are charged and are adequately protected against spurious charges
of immoral and fraudulent behavior, which is the purpose of Rule 9(b).15 Thus, defendants’
contention that the Complaint lacks the particularity required by Rule 9(b) in describing the
fraudulent conduct at issue is not well taken, and dismissal of Count Three on that basis is not
appropriate.

15

See, e.g., United States ex rel. Matheny v. Medco Health Solutions, Inc., 671 F.3d
1217, 1222 (11th Cir. 2012) (explaining that the objective of Rule 9(b) is to “alert[] defendants to
the precise misconduct with which they are charged and protect[] defendants against spurious
charges”) (citation omitted); Durham v. Business Management Associates, 847 F.2d 1505, 1511
(11th Cir. 1988) (“The particularity rule serves an important purpose in fraud actions by alerting
defendants to the precise misconduct with which they are charged and protecting defendants
against spurious charges of immoral and fraudulent behavior.”) (citations and internal quotation
marks omitted).

-14-

Nor is defendants’ position strengthened by their related argument that Count Three must
be dismissed for inadequately pleading a conspiracy. Defendants balk that the Complaint
“contains no allegations of actions by F. Saint, Kasubra or SFLP of any action in furtherance of
any alleged conspiracy.” (Doc. 11, at 17.) They protest that the Complaint does not “identify
when John Saint and the Defendants agreed to engage in the alleged fraudulent acts,” does not
“identify the dates when the Defendants rendered assistance to J. Saint in committing the
fraudulent acts,” and does not “explain how the conduct of the Defendants, F. Saint, Kasubra,
and/or SFLP, furthered the commission of the alleged fraud by John Saint.” (Id. at 18.) These
assertions substantially overstate the pleading requirements for a civil conspiracy. Defendants
cite no authority – and the Court is aware of none – requiring a plaintiff to plead the precise date
of an alleged agreement to engage in fraud, or to plead specific overt acts in furtherance of the
conspiracy committed by each and every defendant. Simply put, no such heightened pleading
requirements exist.16
To be sure, the Eleventh Circuit has delineated minimum pleading requirements in a civil
conspiracy context. In particular, the appellate court has counseled that “a defendant must be
informed of the nature of the conspiracy which is alleged. It is not enough to simply aver in the
complaint that a conspiracy existed. … A complaint may justifiably be dismissed because of the
conclusory, vague and general nature of the allegations of conspiracy.” Shell v. U.S. Dep’t of
Housing and Urban Development, 355 Fed.Appx. 300, 307 (11th Cir. Dec. 2, 2009) (quoting
Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984)). Thus, a plaintiff’s “bare assertion that
a conspiracy occurred is insufficient to state a claim.” Shell, 355 Fed.Appx. at 307. Here, SEPH
has not confined its Complaint to a conclusory statement that a conspiracy existed. To the
contrary, the Complaint delineates at some length the relationships between and among the
defendants, the character of the acts done, and the benefits reaped by each defendant as a result
of the conspiracy, all of which when viewed in the aggregate support a reasonable inference that
16

See, e.g., Ex parte Reindel, 963 So.2d 614, 621 n.11 (Ala. 2007) (“In a
conspiracy, the acts of coconspirators are attributable to each other.”) (citation omitted);
Huckleberry v. M.C. Dixon Lumber Co., 503 So.2d 1209, 1210-11 (Ala. 1987) (“It is not an
essential element of the claim that a particular conspirator commit an overt act in furtherance of
the conspiracy.”); O’Dell v. State ex rel. Patterson, 117 So.2d 164, 168 (Ala. 1959) (“A great
quantum of detail need not be required to be alleged as to the formation of the conspiracy
because of the clandestine nature of the scheme or undertaking engaged in.”).

-15-

these defendants conspired with John Saint to defraud plaintiff out of assets that it had been led
to believe were available to pay Saint’s guaranty obligations. The modest Eleventh Circuit
pleading requirement for conspiracy claims is satisfied here.
More broadly, the allegations of Count Three are sufficient, if proven at trial, to support a
civil conspiracy claim as a matter of substantive Alabama law (which governs that cause of
action).17 Indeed, the Alabama Supreme Court has opined that “[a] civil conspiracy claim
operates to extend, beyond the active wrongdoer, liability in tort to actors who have merely
assisted, encouraged, or planned the wrongdoer’s acts.” DGB, 55 So.3d at 234 (citation
omitted). “The existence of the conspiracy must often be inferentially and circumstantially
derived from the character of the acts done, the relation of the parties, and other facts and
circumstances suggestive of concerted action.” Turner v. Peoples Bank of Pell City, 378 So.2d
706, 708 (Ala. 1979); see also Eidson v. Olin Corp., 527 So.2d 1283, 1285 (Ala. 1988) (“By its
very nature, the existence of a conspiracy must often be inferred from circumstantial evidence
and the relationship of the parties, as opposed to direct evidence.”). SEPH’s Complaint raises a
reasonable inference that Frances Saint, SFLP and Kasubra “assisted” or “encouraged” John
Saint’s purportedly wrongful acts; after all, those defendants were insiders / family members /
entities he controlled to which Saint transferred millions of dollars in assets at a time when his
guaranty obligations were likely to ripen into payment demands by Vision Bank, yet Saint
continued to list these assets among his holdings in a financial statement submitted to Vision
Bank thereafter. The Complaint need not allege – and SEPH need not prove – the date of an
agreement among these parties to defraud Vision Bank; rather, the conspiracy’s existence may be
proven at trial inferentially and circumstantially by the character of the acts done, the relation of
the parties, and other facts and circumstances suggestive of concerted action. The Complaint
adequately pleads such character of acts, relation of parties, and facts suggestive of concerted
action to support a cognizable cause of action under Alabama law for civil conspiracy.
In light of the foregoing, the Motion to Dismiss or in the Alternative for More Definite
Statement is denied as to Count Three, which comports with all applicable pleading
17

The Alabama Supreme Court has answered the question “whether Alabama
recognizes a cause of action for conspiracy to defraud a creditor” in the affirmative. A.T.
Stephens Enterprises, Inc. v. Johns, 757 So.2d 416, 419-20 (Ala. 2000). Defendants do not
suggest otherwise.

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requirements. SEPH’s civil conspiracy claim places defendants on notice of the nature of the
alleged conspiracy and the circumstances of the alleged fraud. Nothing further is required at the
pleadings stage.
D.

Counts Four and Five and the “Statement of Claim” Objection.

Counts Four and Five of the Complaint sound in theories of fraudulent representation and
fraudulent concealment, relating to John Saint’s purportedly false financial statement that he
provided to Vision Bank in May 2007. (Doc. 1, ¶¶ 35-40.) These causes of action are lodged
solely against “John Saint and the Saint Estate.”
In their Motion to Dismiss, defendants argue that Counts Four and Five are properly
dismissed for noncompliance with Alabama Code § 43-2-350(b), otherwise known as the Statute
of Nonclaim. The statute provides, in relevant part, that “[a]ll claims against the estate of a
decedent … must be presented within six months after the grant of letters, … and if not presented
within that time, they are forever barred and the payment or allowance thereof is prohibited.
Presentation must be made by filing a verified claim or verified statement thereof in the office of
the judge of probate ….” Ala. Code § 43-2-350(b). Alabama courts have long recognized that
the Statute of Nonclaim is designed “to promote a speedy, safe, and definitive settlement of
estates by giving the personal representative notice of all claims against the estate in his hands.”
Moore v. Stephens, 84 So.2d 752, 758 (Ala. 1956) (citation and internal quotation marks
omitted). Defendants’ point is that the Complaint lacks allegations that SEPH filed a verified
statement of claim relating to the fraud causes of action with the Mobile County Probate Court
within a six-month period after issuance of letters testamentary for the Saint Estate. Therefore,
defendants reason, those claims are forever barred by operation of § 43-2-350(b).
SEPH’s response is that, as discussed supra and as pleaded in the Complaint, SEPH did
not discover the purportedly fraudulent transfers of assets that rendered John Saint’s financial
statement of May 2007 false and misleading until September/October 2016. Thus, plaintiff
reasons, application of Alabama’s discovery rule obviates any argument that Counts Four and
Five are barred by operation of the six-month notice period set forth in the Statute of Nonclaim.
According to plaintiff, SEPH filed a statement of claim (in the form of this civil action) within
six months after discovering the alleged fraud, so § 43-2-350(b) does not mandate dismissal of
Counts Four and Five.

-17-

Defendants do not dispute that the discovery rule applies in the context of computing the
six-month period prescribed by the Statute of Nonclaim. (Doc. 24, at 3.)18 Nonetheless, they
maintain in their reply brief that SEPH / Vision Bank “had sufficient facts by the end of 2008
that John Saint no longer owned assets with a value sufficient to pay the guaranteed amount of
his debt to Vision Bank.” (Id. at 24.) This argument fails for the reasons discussed in footnote
14, supra, in the context of defendants’ assertion that Counts One and Two are untimely. As
discussed supra, in Alabama “[t]he question of when a party discovered or should have
discovered the fraud is generally one for the jury.” Jones v. Kassouf & Co., P.C., 949 So.2d 136,
140 (Ala. 2006) (citations omitted). The Court perceives – and movants have identified – no
factual allegations in the Complaint unequivocally demonstrating that SEPH knew or should
have known back in 2008 that John Saint’s May 2007 financial statement was false and
inaccurate. Contrary to defendants’ conclusory argument, nowhere in the Complaint does SEPH
plead facts showing that it knew or should have known in late 2008 that Saint did not actually
own valuable assets that he listed in his financial statement. This issue cannot be definitively
resolved on Rule 12(b)(6) review.
In short, Alabama law excuses contingent claims from compliance with the six-month
deadline prescribed by the Statute of Nonclaim for filing statements of verified claims. SEPH’s
18

Nor could defendants credibly do so. After all, the Alabama Supreme Court has
long recognized that “the legislature as a matter of public policy did not intend to include
‘contingent claims,’ as being barred by a six months period from the time of appointment of an
administrator or executor, and that an exception to the requirement of the Statute of Nonclaim is
where the claim is a ‘contingent’ one.” Hartford Acc. & Indem. Co. v. Kuykendall, 247 So.2d
356, 360 (Ala. 1971). Elsewhere, the Alabama Supreme Court has construed this exemption for
contingent claims as embracing “claims which may never accrue …such as the liability of a
surety who has no demand against the principal until his payment of the debt for which he is
bound. … Or the claim which was … dependent on a future contingency which might never
happen.” Fretwell v. McLemore, 52 Ala. 124, 141 (Ala. 1875) (citations omitted); see also
Federal Deposit Ins. Corp. v. Harry Brown & Co., 2015 WL 8492460, *4 (M.D. Ala. Dec. 10,
2015) (“a claim which had not accrued within 6 months of the issuance of letters testamentary is
not barred by the non-claim statute”). And in Alabama, fraud claims do not accrue until they are
or should be discovered. See, e.g., Ala. Code § 6-2-3 (“In actions seeking relief on the ground of
fraud where the statute has created a bar, the claim must not be considered as having accrued
until the discovery by the aggrieved party of the fact constituting the fraud.”). Because fraud
claims accrue upon discovery of the fraud, and because the “contingent claim” exception to the
Statute of Nonclaim reaches claims that have not yet accrued, the discovery rule plainly applies
here.

-18-

fraud claims are properly viewed as “contingent” for purposes of that exception. On the limited
information presented, the Court cannot make a conclusive determination as to when SEPH /
Vision Bank should have discovered the alleged fraud. As such, a final ruling on the application
of the discovery rule to these facts is not appropriate at the pleadings stage. Therefore, the Court
cannot find at this time that Counts Four and Five are outside the ambit of the discovery rule,
much less that SEPH failed to comply with the Statute of Nonclaim. The Motion to Dismiss is
properly denied as to this theory.
E.

Stay / Abstention Issues.

The remainder of defendants’ Motion is devoted to requests for Colorado River
abstention and a discretionary stay. (Doc. 11, at 21-26.) In their reply, however, defendants
withdrew their request for Colorado River abstention. (Doc. 24, at 21.) Based on defendants’
stated intention not to pursue that issue, the Motion for Court to Abstain is denied.
With respect to the alternative Motion to Stay, defendants urge this Court to “stay this
case pending the conclusion of the existing probate proceeding,” reasoning that the Mobile
County Probate Court will “determine[] the outcome of the issues raised by Plaintiff in this
proceeding.” (Doc. 11, at 25-26.) Certainly, federal district courts are empowered to enter stays
in such circumstances. See, e.g., Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137
L.Ed.2d 945 (1997) (“The District Court has broad discretion to stay proceedings as an incident
to its power to control its own docket.”); Ortega Trujillo v. Conover & Co. Communications,
Inc., 221 F.3d 1262, 1264 (11th Cir. 2000) (“A stay sometimes is authorized simply as a means of
controlling the district court’s docket and of managing cases before the district court.”). “In
exercising this discretion, district courts have considered such factors as: (1) whether the
litigation is at an early stage; (2) whether a stay will unduly prejudice or tactically disadvantage
the non-moving party; (3) whether a stay will simplify the issues in question and streamline the
trial; and (4) whether a stay will reduce the burden of litigation on the parties and on the court.”
Green v. Roberts, 2010 WL 5067442, *2 (S.D. Ala. Dec. 6, 2010) (citations and internal marks
omitted). Under the circumstances, the Court declines to exercise its discretion in favor of
staying these proceedings. Most notably, it is not apparent that a stay would serve any
constructive purpose. Defendants have not shown that the Mobile County Probate Court is likely
to address, much less resolve, the specific issues joined in this proceeding; therefore, the Court
cannot find on this showing that a stay is likely to simplify or streamline the issues, or reduce the

-19-

burden of litigation on the parties or court staff. Accordingly, the Court, in its discretion, denies
defendants’ Motion to Stay.
III.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Defendants’ Motion to Correct by Supplementing Defendants’ Reply to Plaintiff’s
Response (doc. 28) is granted. The lengthy indented paragraph on pages 2 and 3
of the Motion to Correct is substituted for the fourth paragraph of Section II.A.
of Defendants’ Reply (doc. 24), found on pages 11 and 12;

2.

Defendants’ Motion to Dismiss Each Count or in the Alternative for a More
Definite Statement of Count Three and Motion for Court to Abstain or in the
Alternative Stay Proceedings (doc. 10) is denied in its entirety; and

3.

Defendants’ answer or answers must be filed on or before May 15, 2017.

DONE and ORDERED this 1st day of May, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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