IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CARI D. SEARCY and KIMBERLY )

McKEAND, individually and as parent )

and next friend of K.S., a minor, )

)

Plaintiffs, )

)

v. ) Civil Action No. 14-00208-CG-N

)

ROBERT BENTLEY, individually and )

in his official capacity as the Governor )

of the State of Alabama, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

Two motions to dismiss are pending in this case, which challenges the 

constitutionality of Alabama’s Marriage Protection Act and the Sanctity of Marriage 

Amendment to the State Constitution1 (see Doc. 1, ¶ 1) (collectively, the “Marriage 

Sanctity Laws” or “Sanctity Laws”2), “as applied and interpreted in the context of 

Alabama’s step-parent adoption statute” (id., ¶ 30 (citing ALA. CODE § 26-10A-27)).

1. Defendant Nancy Buckner, Commissioner of the Alabama Department 

of Human Resources, sued in her individual and official capacity, has 

filed a motion to dismiss all claims against her pursuant to Rules 

12(b)(1) and 12(b)(6) (Doc. 14; see also Doc. 15, brief in support); and

2. Defendants Robert Bentley, Governor of Alabama, and Luther Strange, 

Attorney General of Alabama, both sued in their individual and official 

capacities, have filed a motion to dismiss (Doc. 17), seeking that all 

 1 The Act is codified at Ala. Code § 30-1-19, and the Amendment, No. 774, 

appears at Article I, § 36.03 of the State Constitution.

2 The undersigned adopts this description of the laws, provided in the 

complaint, for purposes of the report and recommendation.

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2

claims against Governor Bentley be dismissed pursuant to Rules 

12(b)(1) and 12(b)(6) and that the individual-capacity claim against 

Attorney General Strange be dismissed pursuant to Rule 12(b)(6). 

Their motion provides further that “Attorney General Strange will 

defend the validity of Alabama’s marriage laws in this case.” (Id. at 

8.)3

The motions have been referred to the undersigned United States Magistrate 

Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2, for entry of a 

report and recommendation.

As a preliminary, but important, matter, in Plaintiffs’ omnibus response to 

the motions to dismiss (Doc. 27), filed June 24, 2014, they agree to the voluntary 

dismissal of all claims against Commissioner Buckner. (See Doc. 27 at 1.)4 Plaintiffs 

further state that all individual-capacity claims against Governor Bentley and 

Attorney General Strange are also due to be dismissed. (See id.) “[T]he only 

remaining claims [are] against [Governor] Bentley and [Attorney General] Strange 

in their official capacities.” (Id.) Accordingly, the undersigned RECOMMENDS, 

initially, that Commissioner Buckner’s still-pending motion to dismiss (Doc. 14) be 

GRANTED. And the undersigned will limit her consideration to the motion filed 

 3 Defendant Don Davis, Judge of Probate for Mobile County, Alabama, also 

sued in his individual and official capacity, also filed a motion to dismiss all claims against 

him pursuant to Rule 12(b)(6) (Doc. 10). A joint stipulation of dismissal (Doc. 29), agreeing 

that all claims against Judge Davis are dismissed with prejudice, was filed July 14, 2014. 

And Judge Granade has ordered that, unless an objection was filed by July 25, 2014 (none 

was filed), the claims against Judge Davis are deemed dismissed with prejudice as of that 

date. Accordingly, the undersigned RECOMMENDS that Judge Davis’s motion (Doc. 10) 

be DENIED as MOOT.

4 Plaintiffs also agreed to dismissal of all claims against Judge Davis and 

Catherine M. Donald, State Registrar of Vital Statistics. See id. Ms. Donald was served on 

June 5, 2014 (see Doc. 19). As such, her time to respond to Plaintiffs’ complaint had not 

passed by the time Plaintiffs filed the response agreeing to voluntarily dismiss all claims 

against her.

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by Governor Bentley and Attorney General Strange (Doc. 17), which is further 

supported by their reply (Doc. 28), filed June 27, 2014. The analysis below will be 

limited, moreover, to the only pre-answer issue before the Court—whether the 

official-capacity claim against Governor Bentley should be allowed to proceed. And, 

for the reasons explained below, it is RECOMMENDED that that the officialcapacity claim against the Governor be DISMISSED and that this lawsuit proceed 

solely against the Attorney General in his official capacity.

I. Applicable Background

Plaintiffs Kimberly McKeand and Cari D. Searcy, female resident citizens of 

Mobile County, Alabama, were married in California in 2008. (See Doc. 1, ¶¶ 4, 5, 

13.) Ms. McKeand is the biological mother of K.S., a minor born in Mobile, Alabama 

on December 30, 2005 (see id., ¶¶ 16, 18), and also brings this suit on behalf of K.S.

According to the complaint, “it was decided that” K.S.’s biological father, 

identified as Mike, and a friend of Ms. Searcy, “would be a sperm donor and that 

McKeand would carry a child that would be raised by Searcy and McKeand.” (Id., ¶ 

18; see also id., ¶ 19 (“Mike was not listed as father of K.S. on the birth certificate, 

and Mike did not register as the father with the State of Alabama’s putative father 

registry system. Mike did not contest the adoption, and in fact, Mike consents to 

the adoption [of K.S. by Ms. Searcy] and executed a waiver to that effect. Mike has

waived all parental rights and he has terminated all rights as a parent of K.S.”).)

Ms. Searcy petitioned to adopt K.S. on December 29, 2011. (See id., ¶ 21.) 

Her attempt to adopt K.S. was denied by the Probate Court of Mobile County on 

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April 6, 2012, based on the determination “that Searcy is not a ‘spouse’ of McKeand 

within the meaning and context of Ala. Code § 26-10A-27” (which provides, “[a]ny 

person may adopt his or her spouse’s child according to the provisions of this 

chapter . . .” subject to certain exceptions and conditions, which Plaintiffs contend 

“are inapplicable to this matter”). (Id., ¶¶ 21, 22.) The Probate Court’s decision was 

appealed to the Supreme Court of Alabama, which assigned the matter to the Court 

of Civil Appeals; that court affirmed the Probate Court. (See id., ¶ 23.) Thus, 

Plaintiffs contend, they “have exhausted all avenues of legal recourse in Alabama 

state courts and left without the remedy they seek—the adoption.” (Id., ¶ 24.)

This challenge to the Marriage Sanctity Laws, “in the context of [ ] stepparent adoption” (id., ¶ 30), appears to be—as of entry of this report and 

recommendation—but one of three challenges to the Marriage Sanctity Laws

pending in federal courts in the State. Hard v. Bentley, et al., Case No. 2:13-cv00922-WKW-SRW, filed December 16, 2013 is pending in the Middle District, and

Aaron-Brush v. Bentley, et al., Civil Action No. 2:14-cv-01091-RDP, filed June 10, 

2014, is pending in the Northern District.5 Not surprisingly, of the three cases, the 

first filed, Hard, has progressed the furthest. There, Governor Bentley initially

chose to answer the complaint, and the plaintiffs are currently scheduled to file a 

motion for summary judgment by August 29, 2014. (See 2:13-cv-00922 (M.D. Ala.) 

Docs. 18, 44.) On July 24, 2014, however, the Governor moved to dismiss the claim 

against him for failure to state a claim. (See 2:13-cv-00922 (M.D. Ala.) Doc. 48.) 

 5 Aaron-Brush also raises step-parent adoption. (See 2:14-cv-01091 (N.D. Ala.) 

Doc. 1, ¶¶ 11, 30.)

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And in Aaron-Brush, Governor Bentley has filed a motion to dismiss all claims 

against him, substantively the same as the one pending in this Court (and now in 

Hard), which appears to now be ripe for consideration by Judge Proctor. (See 2:14-

cv-01091 (N.D. Ala.) Docs. 9, 10, 14, 15.)

II. Legal Framework

Governor Bentley argues that pursuant to the Eleventh Amendment to the 

United States Constitution he cannot be subject to defend this lawsuit in his official 

capacity. (See generally Doc. 17 at 3-5 (also arguing that Plaintiffs lack standing to 

bring this action against Governor Bentley “for largely the same reasons these 

claims are barred by” Eleventh Amendment immunity”).)

Eleventh Amendment immunity affects the jurisdiction of the court, 

and a state sovereign is entitled to it unless one of three narrow 

circumstances exists: abrogation by Congress under its Fourteenth 

Amendment power, explicit waiver by the state sovereign, or 

application of the Ex parte Young doctrine for prospective relief against 

a state official (but not the State itself). In the absence of something 

suggesting the presence of one of these exceptions, a court must 

assume Eleventh Amendment immunity because it goes directly to 

constitutional limitations on the Article III power of the court.

Diaz v. Glen Plaid, LLC, No. 7:13–cv–853–TMP, 2013 WL 5603944, at *4 (N.D. Ala. 

Oct. 11, 2013) (citing Seminole Tribe of Fla. v. State of Fla., 11 F.3d 1016, 1021 

(11th Cir. 1994), aff’d sub nom. Seminole Tribe of Florida v. Florida, 517 U.S. 44 

(1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)).

The exception at issue in this litigation is application of “the doctrine, first 

enunciated in Ex Parte Young, 209 U.S. 123 (1908), that ‘the Eleventh Amendment 

does not prevent federal courts from granting prospective injunctive relief’ against 

state officials ‘to prevent a continuing violation of federal law’ because such conduct 

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is not considered to be state action.” Emmons v. City Univ. of N.Y., 715 F. Supp. 2d 

394, 406-07 (E.D.N.Y. 2010) (citing Green v. Mansour, 474 U.S. 64, 68 (1985); 

Pennhurst, 465 U.S. at 102)); see also Walker v. Jefferson Cnty. Bd. of Educ., No. 

2:13–CV–00524–RDP, 2013 WL 4056224, at *3 (N.D. Ala. Aug. 12, 2013) (“In 

certain circumstances, state officials may be subject to suit, despite the Eleventh 

Amendment, under the ‘fiction’ of Ex parte Young. That fiction allows an individual 

to obtain a federal injunction against a state officer to force the officer to comply 

with federal law.” (citations omitted)).6

 6 Although not pressed by Plaintiffs here, any argument that the Governor’s 

initial decision to participate in Hard “waived” his immunity from the defense of this 

lawsuit would likely not be successful. Because “[t]he inquiry into whether a state has 

waived its immunity[ ] is stringent.” Shedrick v. District Bd. of Trustees of Miami-Dade 

Coll., 941 F. Supp. 2d 1348, 1359 (S.D. Fla. 2013) (Rosenbaum, J.) (citing Barnes v. Zaccari, 

669 F.3d 1295, 1308 (11th Cir. 2012) (in turn citing College Sav. Bank v. Fla. Prepaid 

Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999); Edelman v. Jordan, 415 U.S. 

651, 673 (1974))). “A waiver must specifically permit suits against the state in federal 

court. Generally, waiver is found only when the state voluntarily invokes the jurisdiction of 

a federal court or the state makes a clear declaration that it intends to submit itself to 

federal jurisdiction.” Id. (citations and internal quotation marks omitted). At issue in 

Shedrick was whether the community college, an arm of the State of Florida for purposes of 

immunity under the Eleventh Amendment, “waived immunity by failing to plead it as an 

affirmative defense in its answer.” Id. Florida, like Alabama, has expressly retained its 

immunity from suit in federal court. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978); 

Lancaster v. Monroe Cnty., Ala., 116 F.3d 1419, 1429 (11th Cir. 1997); Carr v. City of 

Florence, Ala., 916 F.2d 1521, 1524 (11th Cir. 1990). And, in Shedrick, Judge Rosenbaum 

concluded that plaintiff’s waiver argument was unavailing for reasons that could apply, 

even more convincingly, to any waiver argument made in this matter. See 941 F. Supp. 2d 

at 1359.

First, any “failure to plead Eleventh Amendment immunity[—here, initially, in 

litigation parallel to this litigation—]cannot plausibly be held to be a clear declaration of, or 

to even raise an overwhelming implication of, waiver, particularly in light of [a state’s] 

express retention of Eleventh Amendment immunity.” Id. (citing Edelman, 415 U.S. at 673 

(“[W]e will find waiver only where stated ‘by the most express language or by such 

overwhelming implications from the text as (will) leave no room for any other reasonable 

construction.’”)); see also Ross v. Colorado Dep’t of Transp., Civil No. 11–cv–02603–REB–

KMT, 2012 WL 5975086, at *6 n.10 (D. Colo. Nov. 14, 2012) (Eleventh Amendment 

immunity “cannot be waived by merely appearing in and litigating in a case ‘absent some 

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The relatively straightforward framework to determine whether officialcapacity claims against the Governor of Alabama should be dismissed in a lawsuit 

challenging the constitutionality of state law has been recently addressed by the 

Middle District:

Governor Bentley claims that he is entitled to dismissal from suit 

based on grounds of sovereign and Eleventh Amendment immunity. 

To join Governor Bentley to this suit, Plaintiffs must show that he is 

“responsible for the challenged action” of enforcing or implementing 

the [act at issue]. Luckey v. Harris, 860 F.2d 1012, 1015 (11th Cir.

1988). Governor Bentley must, “by virtue of his office, have some 

connection with” the enforcement of the allegedly unconstitutional 

[act]. Id. (quoting Young, 209 U.S. at 157 (quotation marks and 

alterations omitted)). “Whether this connection arises out of general 

law, or is specially created by the act itself, is not material so long as it 

exists.” Id. at 1016 (quoting Young, 209 U.S. at 157). But Governor 

Bentley’s connection to the [act] cannot be “too attenuated to establish 

that he is responsible for” its implementation. See Women’s Emergency 

Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003).

In Women’s Emergency Network, the Eleventh Circuit rejected the 

plaintiffs’ argument that the Governor of Florida was a proper 

defendant because he was ultimately responsible for the Department of 

Highway Safety and Motor Vehicles, the state agency charged by the 

challenged statute with issuing specialty license plates. Id. at 949.

 

extraordinarily effective waiver.’” (quoting Richins v. Industrial Constr., Inc., 502 F.2d 

1051, 1056 (10th Cir. 1974)); id. (the routine defense of a matter in federal court “is not a 

case in which the state ‘becomes the actor and files a claim against the fund, [and thus] 

waives any immunity it otherwise might have had respecting the adjudication of the 

claims’” (quoting Gardner v. New Jersey, 329 U.S. 565, 574 (1947))); McGinty v. New York, 

251 F.3d 84, 93 (2d Cir. 2001) (Eleventh Amendment immunity not waived were “[n]o 

intervention occurred, no claims were asserted by the state defendants, and no resolution of 

issues other than those presented by plaintiffs’ complaints had to be resolved” 

(distinguishing Clark v. Barnard, 108 U.S. 436 (1883))).

Eleventh Amendment immunity, which “deprives federal courts of any jurisdiction 

to entertain such claims,” moreover, “may be raised at any point in a proceeding.” 

Shedrick, 941 F. Supp. 2d at 1359 (quoting Pennhurst, 465 U.S. at 99 n.8) (citing Doe v. 

Moore, 410 F.3d 1337, 1349 (11th Cir. 2005) (“Eleventh Amendment jurisdictional 

questions can be raised for the first time on appeal.”)) (emphasis added); accord McGinty, 

251 F.3d at 94 (collecting cases).

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The court explained that “[w]here the enforcement of a statute is the 

responsibility of parties other than the governor[,] . . . the governor’s

general executive power is insufficient to confer jurisdiction.” Id. at 

949-50.

C.M. ex rel. Marshall v. Bentley, --- F. Supp. 2d ----, 2014 WL 1378432, at *13-14 

(M.D. Ala. Apr. 8, 2014) (finding the Governor’s statutory responsibility to prepare

“the State’s general and education budgets each year” to be “too attenuated a 

connection to make him a proper defendant” in a lawsuit claiming the Alabama 

Accountability Act of 2013 (“the AAA”) violated the Fourteenth Amendmentguaranteed equal protection rights of certain students’ (those located in an area of 

the State with few or no nearby nonfailing school options and no financial resources 

with which to access nonfailing schools). “To conclude otherwise would authorize a 

plaintiff to challenge any state statute involving the appropriation of state funds 

merely by naming the governor as a defendant.” (citing Women’s Emergency 

Network, 323 F.3d at 949 (in turn citing Harris v. Bush, 106 F. Supp. 2d 1272, 1276-

77 (N.D. Fla. 2000) (“[G]eneral authority, standing alone, is insufficient to make 

[the Governor of the State] the proper party whenever a plaintiff seeks to challenge 

the constitutionality of a law.” (collecting cases))))) (alteration to original).7

 7 See Harris v. McDonnell, --- F. Supp. 2d ----, 2013 WL 6835145, at *6 (W.D. 

Va. Dec. 23, 2013) (“[T]he court concludes that the Virginia Governor’s general supervisory 

authority over the Commonwealth’s executive branch does not constitute a special relation 

to the challenged same-sex marriage ban. The Virginia Governor has insufficient proximity 

to and responsibility for Virginia’s marriage laws, and plaintiffs have not shown any 

involvement by the Governor in the enforcement of these laws.”); Bishop v. Oklahoma, 333 

Fed. App’x 361, 365 (10th Cir. June 5, 2009) (“[T]he Oklahoma officials’ generalized duty to 

enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional 

amendment they have no specific duty to enforce. . . . The Couples claim they desire to be 

married but are prevented from doing so, or they are married but the marriage is not 

recognized in Oklahoma. These claims are simply not connected to the duties of the 

Attorney General or the Governor. Marriage licenses are issued, fees collected, and the 

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III. Analysis

As Governor Bentley argues, he neither has “enforcement responsibilities 

with respect to Alabama’s marital and domestic laws” (Doc. 17 at 4 (citing ALA.

CODE § 30-1-1 et seq.) nor “enforcement responsibilities with respect to the adoption 

statute that forms this basis of this lawsuit” (id. (citing ALA. CODE § 26-10A-27)). 

Indeed, Plaintiffs mention the Governor only once in their complaint. (See Doc. 1, ¶ 

7.) As that singular substantive reference—that “ . . . Robert Bentley is the 

Governor of the State of Alabama, and is vested with the powers of the office of the 

highest executive branch state official. Governor Bentley maintains, exercises and 

enforces his authority, among other ways, in connection with the Sanctity Laws.” 

(id.)—makes clear, the sole basis for naming the Governor a defendant here is his 

 

licenses recorded by the district court clerks.” (citations omitted)); but see Kitchen v. 

Herbert, --- F.3d ----, 2014 WL 2868044, at *5 (10th Cir. June 25, 2014) (distinguishing 

Bishop on facts specific to how marriage licenses are issued in Utah, where the Governor 

and Attorney General have statutory authority over county clerks who issue marriage 

licenses); see also Peter B. v. Sanford, Civil Action No. 6:10–767–RBH–BHH, 2010 WL 

5684397, at *3 (D.S.C. Dec. 6, 2010) (“Ex parte Young requires a ‘special relation’ between 

the state official sued and the challenged statute, and ‘[g]eneral authority to enforce the 

laws of the state is not sufficient to make government officials the proper parties to 

litigation challenging the law.’” (quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 

316, 331 (4th Cir. 2001) (in turn quoting Children’s Healthcare is a Legal Duty, Inc. v. 

Deters, 92 F.3d 1412, 1416 (6th Cir. 1996)))); Nichols v. Brown, 859 F. Supp. 2d 1118, 1131-

32 (C.D. Cal. 2012) (“It is well established that ‘a generalized duty to enforce state law or 

general supervisory power over the persons responsible for enforcing the challenged 

provision will not subject an official to suit.’” (quoting Snoeck v. Brussa, 153 F.3d 984, 986 

(9th Cir. 1998) (other citations omitted))); compare id., with American Fed. of State, Cnty. & 

Mun. Emps. (AFSCME) Council 79 v. Scott, 278 F.R.D. 664, 670-71 (S.D. Fla. 2011) 

(distinguishing Women’s Emergency Network, and holding Governor of Florida properly 

named in his official capacity, where “the Governor issued the challenged [executive 

order]”), and Dyke v. Dudek, No. 4:11cv116/RS–WCS, 2011 WL 4370608, at *1-2 (N.D. Fla. 

Sept. 19, 2011) (“Because [the executive order] is no longer in effect, the Governor’s 

responsibility over the agencies in question amounts to general executive power which is 

not sufficient to permit jurisdiction over him. The Governor’s other actions including 

investigating and reviewing rules are part of his normal functions of administration. The 

Governor is entitled to Eleventh Amendment immunity.”).

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“general authority” over the executive branch, which, “standing alone[ ] is 

insufficient to make [him a] proper party” to a lawsuit challenging the 

constitutionality of the Marriage Sanctity Laws. Harris, 106 F. Supp. 2d at 1276. 

Plaintiffs have failed to allege, specifically, the Governor Bentley is “‘responsible for 

the challenged action’ of enforcing or implementing the [Marriage Sanctity Laws].” 

C.M. ex rel. Marshall, 2014 WL 1378432, at *13 (quoting Luckey, 860 F.2d at 1015). 

And the only “connection” they do allege, his general executive power, is “too 

attenuated to establish that he is responsible for” implementation of the challenged 

laws. Women’s Emergency Network, 323 F.3d at 949. Thus, pursuant to the 

traditional analysis associated with this issue, Plaintiffs’ official-capacity claim 

against Governor Bentley is due to be dismissed.8

But Plaintiffs have not chosen to defend their choice to keep Governor

Bentley, in his official capacity, in this litigation by arguing he has a special 

relationship with, and/or a specific duty to enforce, the Marriage Sanctity Laws (the 

traditional analysis). Plaintiffs instead argue, pursuant to Rule 19, that (1) 

“Governor Bentley’s presence in this case is required . . . because complete relief 

cannot be provided to [them] without his presence”; and (2) “Governor Bentley’s 

absence would leave the Plaintiffs at a substantial risk of inconsistent and multiple 

 8 Cf. Peter B., 2010 WL 5684397, at *3 n.3 (“In order to survive a motion to 

dismiss on an Ex parte Young claim, it is typically sufficient that the plaintiff has alleged 

facts that, if proven, would violate federal law and that the requested relief is prospective. 

The Court, however, may look to the ‘special relation’ requirement to dismiss a claim where 

‘the relationship between the state official sought to be enjoined and the enforcement of the 

state statute is significantly attenuated.’” (quoting South Carolina Wildlife Fed’n v. 

Limehouse, 549 F.3d 324, 333 (4th Cir. 2008)) (other citations omitted)).

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outcomes in this litigation.” (Doc. 27 at 2.) As stated, Plaintiffs’ fear is “were 

Governor Bentley allowed out of this case as a party Defendant, he could file an 

appeal in this action and/or file other litigation to impede the Plaintiffs’ efforts to 

secure the relief sought.” (Id. at 2-3.) The basis for this concern, Plaintiffs state, is 

(1) the power of the Governor of Alabama, derived from the State Constitution and 

provided in numerous statutes, to bring suit in the name of the State and intervene 

in litigation involving the State and its agencies; and (2) that the Attorney General 

of Alabama cannot “interfere with or [ ] direct and control litigation being pursued 

by officers who are acting pursuant to directions from the governor . . . .” (See id. at 

3-4 (chiefly relying on Riley v. Cornerstone Cmty. Outreach, Inc., 57 So. 3d 704 (Ala. 

2010)).9) Thus, Plaintiffs conclude,

 9 There, Justice Murdoch, writing for the Supreme Court, first reached “two 

preliminary conclusions.”

First, if our constitution’s grant of “supreme executive authority” to the 

governor and its charge that the governor “take care that the laws be 

faithfully executed” mean anything in relation to a matter for which another 

constitutional officer is also given responsibility, they at least mean as 

follows: when the governor determines that, whether due to inaction or 

inadequate action by the other official, it is necessary for him to act lest the 

law go unenforced, he may act.

Second, the aforesaid authority to act derives from the constitution itself, not 

from any statutory grant of authority by the legislature. That is, it is 

authority that exists even in the absence of a specific grant of authority by 

the legislature.

Id. at 722 (footnote omitted). The second preliminary conclusion notwithstanding, the 

Supreme Court next noted, “Numerous statutory provisions and decisions of this Court 

[also] authorize the governor to bring suit in the name of the State.” Id. at 723; compare id.

at 726 (“Moreover, all statutes concerning the rights and powers of the governor must be 

read in the context provided by §§ 113 and 120 of the constitution. Under the constitution, 

it is the governor who is the ‘chief magistrate’ with ‘the supreme executive power’ to ‘take 

care that the laws be faithfully executed.’ The legislature has expressly provided that the 

governor can direct a district attorney or a supernumerary district attorney to represent the 

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Governor Bentley is a necessary and proper party to this lawsuit 

because complete relief cannot be provided to the Plaintiffs without his 

presence. Were Governor Bentley to not like the outcome before this 

Court, there is nothing stopping him from filing an appeal in this 

matter and using any judicial means that he deems appropriate. This 

could certainly lead to multiple outcomes for the Plaintiffs.

(Id. at 4.)

Plaintiffs invoke Rule 19(a)—19(a)(1)(A) (complete relief) and 19(a)(1)(B)(ii) 

(substantial risk of multiple or otherwise inconsistent obligations10)—to argue that 

a party currently joined should not be dismissed. In the usual course, however, 

Rule 19(a) is not invoked to show that a party should not be dismissed, but is 

merely the first step in determining whether an action should be dismissed, 

pursuant to Rule 12(b)(7), for failure to join a party under Rule 19. See Challenge 

Homes, Inc. v. Greater Naples Care Ctr., Inc., 669 F.2d 667, 669 (11th Cir. 1982) 

 

interests of the State in the trial court and in this Court, as applicable.” (citation omitted)), 

with id. at 736 (“[W]e conclude that the statutes discussing the powers and duties of the 

attorney general do not authorize the attorney general to interfere with or to direct and 

control litigation being pursued by officers who are acting pursuant to directions from the 

governor . . . .”).

10 Plaintiffs do not actually argue that the Governor’s absence will subject them 

to multiple or otherwise inconsistent obligations, but that his absence could lead to “a 

substantial risk of inconsistent and multiple outcomes.” (Doc. 27 at 2, 4 (emphasis 

added)). But neither multiple litigation nor inconsistent outcomes, as a result of multiple 

litigation, is what Rule 19(a)(1)(B)(ii) guards against. See, e.g., Wheeler Peak, LLC v. 

L.C.I.2, Inc., No. CIV 07–1117 JB/WDS, 2009 WL 2982817, at *12 (D.N.M. Aug. 15, 2009) 

(“The definition of inconsistent obligations is [ ] fairly uniform, among both courts and 

commentators. Rule 19(a)(1)(B)(ii) does not attempt to stop different courts from rendering 

inconsistent judgments, but rather is aimed at ensuring that parties are not subject to 

conflicting commands from different courts. . . .”); New Hampshire Ins. Co. v. Cincinnati 

Ins. Co., Civil Action No. 14–0099–CG–N, 2014 WL 3428911, at *6 (S.D. Ala. July 15, 2014) 

(“Inconsistent obligations only come into play when it is shown that two or more parties in 

two or more suits (including potential suits) seek the same property or seek a judicial 

determination as to the same issue. In other words, an absent party with interests that 

compete or overlap with interests being adjudicated by a court is what gives rise to an 

inconsistent obligation as contemplated in Rule 19(a)(1)(B)(ii).” (citations omitted)).

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(“[T]he court must [first] ascertain under the standards of Rule 19(a) whether the 

person in question is one who should be joined if feasible. If the person should be 

joined but cannot be (because, for example, joinder would divest the court of 

jurisdiction) then the court must inquire whether, applying the factors enumerated 

in Rule 19(b), the litigation may continue.”); accord Focus on the Family v. Pinellas 

Suncoat Transit Auth., 344 F.3d 1263, 1279-80 (11th Cir. 2003). But even if the 

Court accepts Plaintiffs’ position that Governor Bentley is a party required to be 

joined if feasible under Rule 19(a) (and apply such logic to mean that, since he is 

already a party, the official-capacity claim should not be dismissed), Plaintiffs’ 

argument falls apart because Rule 19 cannot abrogate the Governor’s right to 

Eleventh Amendment immunity. See, e.g., Diaz, 2013 WL 5603944, at *4 

(“Eleventh Amendment immunity . . . goes directly to constitutional limitations on 

the Article III power of the court.”).

Indeed, in cases in which Rule 19 and Eleventh Amendment immunity have 

intersected, courts have held that sovereign immunity has significant, if not 

controlling, weight. The sovereign immunity of the required, but (in those cases)

absent party did not, however, factor into whether that party should be joined

under Rule 19(a)—because immunity made joinder not feasible11—but instead was 

 11 See Cyanotech Corp. v. U.S. Nutraceuticals, LLC, Civil No. 12–00352 JMS–

RLP, 2013 WL 504862, at *8 (D. Haw. Feb. 7, 2013) (“[A]t this first step, the court easily 

concludes that the University is a party who should be joined. . . . The second step 

addresses whether joinder is ‘feasible.’ Here, because the court has already dismissed 

the University under Eleventh Amendment principles, joinder of the University 

necessarily is not feasible. The University has not consented to suit in this jurisdiction, 

and the court cannot order its joinder given its Eleventh Amendment immunity.” (citations 

omitted; emphasis added)).

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a factor in determining whether “the action should proceed among the existing 

parties or should be dismissed.” FED. R. CIV. P. 19(b). See Seneca Nation of Indians 

v. New York, 383 F.3d 45, 48-49 (2d Cir. 2004) (affirming the Magistrate Judge’s

determination that “the State was indispensable under Rule 19(b)” and, as such, 

dismissal was required for, among other reasons, “that [while] the Senecas would be 

left without ‘an adequate remedy if the Thruway easement claim is dismissed for 

nonjoinder,’ . . . that ‘[ ] factor is outweighed by the “paramount importance” to be 

accorded to the State’s immunity from suit.’ We find no abuse of discretion in this 

analysis, particularly in light of the significance sovereign immunity plays in 

weighing the Rule 19(b) factors.” (citations omitted)); see also Diaz, 2013 WL 

5603944, at *4, *7-8 (concerning the University of Alabama, a required, but absent 

party with sovereign immunity, and discussing the United States Supreme Court’s

decision in Republic of Philippines v. Pimentel, 553 U.S. 851 (2008): “The Court’s 

discussion of the weight sovereign immunity should be given under the Rule 19(b) 

standard is instructive. . . . The Court stressed that the claims of the Philippines 

and the Commission were not frivolous and that proceeding with the interpleader in 

their absence clearly risked injury to their interests in the interpleaded assets. 

Where sovereign immunity is the bar to joining such required parties, ‘dismissal of 

the action must be ordered.’”).

Given Governor Bentley’s immunity from suit here, as explained above, the 

undersigned concludes his joinder (now that it is clear he is due to be dismissed) is 

not feasible, pursuant to Rule 19(b). This finding clearly ends any consideration of

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Plaintiffs’ speculative opposition to Governor Bentley’s dismissal from this action—

which appears to be that, at some point in the future, the interests of the Governor 

and Attorney General Strange, now clearly aligned in defense of the Marriage 

Sanctity Laws, will somehow diverge, necessitating that the Governor intervene in 

this case to defend the Sanctity Laws.12

IV. Conclusion

For the reasons explained above, it is RECOMMENDED that Commissioner 

Buckner’s motion to dismiss (Doc. 14) and Governor Bentley and Attorney General 

Strange’s motion to dismiss (Doc. 17) be GRANTED; and that Judge Davis’s motion 

to dismiss (Doc. 10) be DENIED as MOOT. Accordingly, it is RECOMMENDED

that this case proceed solely against Attorney General Strange in his official 

capacity.

V. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or 

anything in it must, within fourteen (14) days of the date of service of this 

document, file specific written objections with the Clerk of this Court. See 28 U.S.C. 

§ 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an 

objection must identify the specific finding or recommendation to which objection is 

 12 Plaintiffs merely speculate that the Attorney General could choose, at some 

point in the future, not to defend the challenged laws. Contra cf. Federal Nat’l Mortg. Ass’n 

v. Lefkowitz, 383 F. Supp. 1294, 1297-98 & n.3 (S.D.N.Y. 1974) (denying the Governor’s 

motion to dismiss at least in part because “the Attorney General[’s] challeng[e to] court’s 

jurisdiction . . . might well be prejudicial to the plaintiff).

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made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific.

DONE this the 30th day of July, 2014.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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