REPORT AND RECOMMENDATION

KATHERINE P. NELSON, Magistrate Judge.

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)).

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 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 official-capacity 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 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 [ ] step-parent 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-cv-00922-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.) 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").)

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 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

The relatively straightforward framework to determine whether official-capacity 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:

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 Amendment-guaranteed 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

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 "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 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,

(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) ("[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 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 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 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.