MEMORANDUM OPINION1
JOHN H. ENGLAND, III, Magistrate Judge.
These consolidated actions, both of which were removed from the Circuit Court of Jefferson County, Alabama, (see Shepler v. Hendricks, Case No. 2:18-01429-JHE ("Shepler"), doc. 1; Dominion Resources LLC v. Hendricks, et al., Case No. 2:18-01580-JHE, doc. 1 ("Dominion")), relate to a May 20, 2014 tax sale of real property by the Tax Collector of Jefferson County, Alabama ("Jefferson County"). Defendants Gaynell Hendricks ("Hendricks," who is the Tax Assessor of Jefferson County) and Jefferson County (collectively with Hendricks, the "Moving Defendants") have moved to dismiss both actions under Fed. R. Civ. P. 12(b)(6), contending each is time-barred. (Shepler, doc. 5; Dominion, doc. 15). Plaintiffs in each case oppose dismissal. (Shepler, doc. 11; Dominion, doc. 20). The Moving Defendants have filed a reply in support of their motion in Shepler.2 (See id. at doc. 12). For the reasons discussed further below, the motions, (Shepler, doc. 5; Dominion, doc. 15), are DENIED.
I. Standard of Review
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). Mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (citations and internal quotation marks omitted). "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Additionally, "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The complaint must establish "more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Twombly, 550 U.S. at 555, 127 S. Ct. at 1965 ("Factual allegations must be enough to raise a right to relief above the speculative level."). Ultimately, this inquiry is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950.
The court accepts all factual allegations as true on a motion to dismiss under Rule 12(b)(6). See, e.g., Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). However, legal conclusions unsupported by factual allegations are not entitled to that assumption of truth. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1950.
II. Background
A. Factual Allegations3
On or about May 20, 2014, the Jefferson County Tax Collector sold a number of parcels of real property due to unpaid taxes levied by Jefferson County. (Shepler, doc. 1-1 at 2 (¶ 8); Dominion, doc. 1-1 at 3 (¶ 9)). Plaintiff Tim Shepler ("Shepler") bought one of these parcels (Parcel I.D. 28-00-18-1-014-077.336, "Parcel 1") and received a tax sale certificate the same day. (Shepler, doc. 1-1 at 2 (¶¶ 8, 10)). Nonparty Austin Mann ("Mann") purchased two parcels (Parcel I.D. 28-00-18-1-014-007.331, "Parcel 2," and Parcel I.D. 28-00-18-1-014-007.347, "Parcel 2") at the sale and received tax sale certificates for them. (Dominion, doc. 1-1 at 3 (¶¶ 9-10)). Plaintiff Dominion Resources, LLC ("Dominion") bought one parcel (Parcel I.D. 28-00-19-1-002-003.342, "Parcel 4") at the sale and received a tax sale certificate for it. (Dominion, doc. 1-1 at 3-4 (¶¶ 9, 13)).
On September 6, 2017, the Judge of Probate of Jefferson County issued tax deeds to Shepler and Dominion for the parcels they had purchased. (Shepler, doc. 1-1 at ¶ 11; Dominion, doc. 1-1 at 4 (¶ 14)). On September 11, 2017, the probate judge issued tax deeds to Mann for Parcels 2 and 3. (Dominion, doc. 1-1 at 3 (¶ 11)). Mann later conveyed those parcels to Dominion by quitclaim deed. (Dominion, doc. 1-1 at 3 (¶ 12)).
On or about July 13, 2018, Shepler received a notice from the Jefferson County Tax Assessor dated June 21, 2018, indicating Parcel 1 had been mistakenly sold at the tax sale. (Shepler, doc. 1-1 at 2 (¶ 12); doc. 1-4 at 2). The notice stated "Due to the assessment error this parcel [sic] exemptions were removed. This parcel was exemption [sic] and should not have sold. The tax sale is invalid." (Id., doc. 1-4 at 2). Enclosed with the notice was an "Application for Refund by Petition of Taxes Paid by Mistake or Error" pursuant to Act 89-861. (Id. at 1-1, 2 (¶ 13); doc. 1-4 at 3). On or about July 18, 2018, Dominion received similar notices for Parcels 2, 3, and 4, accompanied by identical petitions. (Dominion, doc. 1-1 at 4 (¶¶ 15-16), 32-37).
B. Procedural History
On August 6, 2018, Shepler filed an action in the Circuit Court of Jefferson County, Alabama. (Shepler, doc. 1-1). Four days later, Dominion filed its own action in the same court. (Dominion, doc. 1-1 at 2-7). Defendant Ben Carson removed Shepler to this court on September 4, 2018, (Shepler, doc. 1-1), and removed Dominion on September 26, 2018, (Dominion, doc. 1). On April 5, 2019, the undersigned consolidated the actions. (Shepler, doc. 33).
III. Analysis
The Moving Defendants argue Plaintiffs waited too long to pursue a refund of the purchase price of the properties. (Shepler, doc. 6 at 2-3; Dominion, doc. 15 at 2-3). Specifically, the Moving Defendants contend Ala. Code § 40-10-101, which contains a two-year statute of limitations, controls the issue. (Id.). That section provides:
When land has been sold for taxes and purchased by anyone other than the state, and the purchase money has been paid into the state and county treasuries, and it shall be made to appear to the satisfaction of the Comptroller that such sale was invalid by reason of the fact that the taxes for which the land was sold were not due, the purchaser of said land, his heirs or assigns, upon the surrender of the certificate of purchase, shall be entitled to have the amount paid for the purchase of said land refunded to him, if application shall be made therefor as hereinafter provided, within two years from the date of sale and before the execution of a deed to such purchaser.
ALA. CODE § 40-10-101. Under the Moving Defendants' interpretation, Plaintiffs had two years from May 20, 2014, to seek a refund under § 40-10-101; since they did not do so before May 21, 2016, they have forfeited their opportunity for a refund. The Moving Defendants also contend the sales were nullities because they were founded on an invalid assessment. (Shepler, doc. 6 at 2-3; Dominion, doc. 15 at 2-3).4
Plaintiffs deny § 40-10-101 applies at all. Instead, they contend they are proceeding under a different section, § 40-10-71, which is the statute they cite in their complaints, (see Shepler, doc. 1-1 at 2-3 (¶¶ 15-17); Dominion, doc. 1-1 at 4 (¶¶ 18-20). That section states:
When lands are sold for taxes which are not liable therefor, the purchaser may recover from the officer by whose fault or neglect the assessment or sale was made, and the sureties on his official bond, the amount of the purchase money paid him therefor, with interest thereon from the day of the sale, together with all costs which are adjudged against him in any action concerning said land involving such tax title.
ALA. CODE § 40-10-71. Plaintiffs argue there is no time limit to seek relief under § 40-10-71, so their claims are timely notwithstanding they were brought more than two years from the date of the tax sale. (Shepler, doc. 11 at 3-4; Dominion, doc. 20 at 4).
The Moving Defendants offer no justification for why § 40-10-101 applies to this case other than to argue "[t]his exact issue has been addressed by the Alabama Attorney General in multiple opinions over the years." (Shepler, doc. 6 at 2; Dominion, doc. 15 at 2). The Moving Defendants point to a 1984 opinion in which the Alabama Attorney General stated, citing § 40-10-101, that a purchaser at an invalid tax sale must apply for a refund of the purchase price within two years. Ala. Op. Att'y Gen. No. 84-00180 (Feb. 23, 1984). They also point to a 2001 opinion in which the Alabama Attorney General states substantially the same thing. Ala. Op. Att'y Gen. No. 2002-026 (Oct. 16, 2001). However, this later opinion explicitly contrasts § 40-10-101 with "situations in which land is sold for taxes that are not liable for taxes and the assessing officer was negligent or at fault in the assessment or sale of the property," which are covered by § 40-10-71. Id. Notwithstanding the tax sale in the 2001 opinion had occurred in 1990, the Alabama Attorney General stated the assessing officer should determine whether § 40-10-71 or a different provision specific to Mobile County, Alabama, applied. Id. In a 2011 opinion, the Alabama Attorney general reaffirmed § 40-10-71 applies when the assessing officer is negligent or at fault, irrespective of the two-year limitations period in § 40-10-101. Ala. Op. Att'y Gen. No. 2011-085 (Aug. 9, 2011).
The Moving Defendants do not point to any portion of either Plaintiff's complaint invoking § 40-10-101. Nor do they dispute § 40-10-71 provides an avenue for a purchaser to obtain a refund. Instead, the Moving Defendants simply ignore the existence of § 40-10-71, and address only the fact that § 40-10-101 "does provide a cause of action for those aggrieved in the instant scenario to assert a claim on an officials [sic] bond." (Shepler, doc. 12 at 2; Dominion, doc. 15 at 3). Since Plaintiffs are not attempting to recover under § 40-10-101, this is irrelevant to their claims under § 40-10-71. Plaintiffs' claims are not barred by a limitation period in a statute under which they are not seeking relief.
To the extent the Moving Defendants' contention each tax sale was a nullity is intended to support their position the complaints are due to be dismissed, this puts the cart before the horse. Although they are correct "[a] sale founded on an invalid assessment is void and a mere nullity and a purchaser at such sale acquires no title," (Dominion, doc. 15 at 2-3) (quoting Ala. Op. Att'y Gen. No. 82-00053 (Oct. 29, 1981)),5 the Moving Defendants appear to rely solely on their own determination of the sales' invalidity. But they are "not empowered to perform the judicial function of passing upon the validity and legality of an ad valorem tax assessment." Corbitt v. Mangum, 523 So.2d 348, 350 (Ala. 1988). Instead, "the trial court is the only forum with the jurisdiction and authority to declare an assessment illegal and void . . . ." Id. The 1981 Alabama Attorney General opinion the Moving Defendants' rely upon is consistent with this, stating: "I can find no statute which would allow you to void the tax deed previously issued by the State to the purchaser at the tax sale — only the courts of the State have the authority to do this . . . Pending a court resolution of any title disputes . . . [the purchaser] remains the rightful owner." Ala. Op. Att'y Gen. No. 82-00053 (Oct. 29, 1981). The Moving Defendants offer no support for their claim that the Jefferson County Tax Assessor can bypass a judicial determination and unilaterally revoke Plaintiffs' rights to the properties. And each Plaintiff's complaint disputes their authority to do so, seeking a declaratory judgment determining whether the assessments were valid and, thus, whether the sales was improper such that they did not acquire title to the parcels.6 (See Shepler, doc. 1-1 at ¶ 18; Dominion, doc. 1-1 at 21). Until a court determines the issue, the validity of the sale is an open question. Accordingly, the Moving Defendants' motions are due to be denied.
IV. Conclusion
For the foregoing reasons, the Moving Defendants' motions to dismiss, (Shepler, doc. 6; Dominion, doc. 15), are DENIED. The parties are DIRECTED to file a joint status report by May 7. 2019 indicating whether they believe mediation would be appropriate at this point.
