AlaFile E-Notice

38-CV-2012-900266.00 Judge: J. MICHAEL CONAWAY To: HORNSBY ERNEST HAROLD ehornsby@fphw-law.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA THE STATE OF ALABAMA V. CENTER STAGE ALABAMA, INC. 38-CV-2012-900266.00 The following matter was FILED on 9/6/2012 3:49:19 PM C001 THE STATE OF ALABAMA MOTION TO DISMISS AND LIMITED APPEARANCE [Filer: NIX JESS RANDALL] Notice Date: 9/6/2012 3:49:19 PM

CARLA H. WOODALL CIRCUIT COURT CLERK HOUSTON COUNTY, ALABAMA 114 NORTH OATES STREET DOTHAN, AL 36302 334-677-4859

ELECTRONICALLY FILED 9/6/2012 3:49 PM CV-2012-900266.00 CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA CARLA H. WOODALL, CLERK

IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA

STATE OF ALABAMA by and through Attorney General Luther Strange Petitioner, vs. $283,657.68 U.S. Currency, et al Defendants

) ) ) ) ) ) ) ) ) ) )

Case Number CV-2012-900266

STATE OF ALABAMAS RESPONSE IN OPPOSITION TO MOTIONS TO DISMISS FILED BY HEDA AND BARON AMERICA, LLC This case represents just the latest chapter in the continuing effort of casino gambling to gain an illegal presence in Alabama by claiming that slot machines and other forms of gambling suddenly become legal as long as you call it bingo. Those behind the Center Stage casino ask this Court to sanction that ruse by dismissing the States action to forfeit contraband based on nothing more than the mere assertion that every form of gambling at Center Stage had a bingo label and was therefore lawful. But this effort to exalt form over substance violates the Alabama Supreme Courts clear mandate that [i]t is the policy of the constitution and laws of Alabama to prohibit the vicious system of lottery schemes and the evil practice of gaming, in all their protean shapes. Barber v. Jefferson County Racing Assn, Inc., 960 So. 2d 599, 614 (Ala. 2006) (emphasis in original, citations and textual marking omitted). A label is not dispositive because what matters is the substance of the transaction, rather than its form. Id. at 611. At trial, the State will certainly present more than sufficient evidence to support its claims. Until then, this Court cannot decide whether the gambling at Center Stage was lawful based on nothing more than assertions, and a dismissal at the pleading stage is therefore improper.

Factual Background In late July of 2012, the State of Alabama obtained and executed a search warrant to seize gambling machines, servers, money used as bets or stakes, and related items from Center Stage, a casino-style gambling hall offering various forms of electronic gambling. On due application, the neutral magistrate found that the State had probable cause to believe that the gambling at issue was not in conformity with Amendment 569, and violated Alabamas broad prohibitions against gambling and slot machines. The Court therefore issued the search warrant, and that warrant was executed on July 25, 2012. On August 2, 2012, the return and inventory were properly filed with the Court. On July 26, 2012, the State filed this action seeking forfeiture of the machines, servers and related equipment seized, along with the seized cash that had been used as bets or stakes in the gambling at issue. In its Complaint, the State pled that the seized property, currency, and gambling records were illegal contraband under Alabama criminal law. With respect to the currency, the State pled that it was in violation of the law of the State of Alabama, and was used as bets or stakes in gambling activity in violation of a law of the State of Alabama concerning gambling, in violation of and contrary to Section 13A-12-20, et seq., including Section 13A-1230, Code of Alabama, (1975). Complaint at 11. With respect to the seized property, the State pled that it constituted gambling devices and slot machines in violation of the law of the State of Alabama, and contrary to Section 13A-12-20, et. seq., including Section 13A-12-30, Code of Alabama, (1975). Complaint at 23.

ARGUMENT I. THE STATE HAS STATED A CLAIM UPON WHICH RELIEF MAY BE GRANTED "When the trial court is called upon to consider a Rule 12(b)(6) motion, it must examine the allegations in the complaint, ... and construe it so as to resolve all doubts concerning [its] sufficiency in favor of the [claimant]. A.W. v. Wood, 57 So. 3d 751, 760-61 (Ala. 2010), quoting Hightower & Co. v. United States Fid. & Guar. Co., 527 So. 2d 698, 70203 (Ala. 1988). In so doing, the court does not consider whether the claimant will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala. 1985), citing First Natl Bank v. Gilbert Imported Hardwoods, Inc., 398 So. 2d 258 (Ala. 1981), and Karagan v. City of Mobile, 420 So. 2d 57 (Ala. 1982). There is no evidence presently before the Court and for good reason: the time for presentation of evidence is at summary judgment or trial. Ultimately, the evidence in this case will show, among other things, that Amendment 569 requires 100% of the net proceeds from bingo games to go to charity, but there were outside for-profit investors in Center Stage who expected to earn a return on their investment through bingo proceeds. The Amendment also prohibits a bingo operator from paying any compensation or salary to any individual or entity for any services performed relating to operating or conducting any bingo game, but the evidence will show that employees were being paid with bingo proceeds. Likewise, although Amendment 569 limits bingo to being played for one five-hour session one day a week, the evidence will show that the Center Stage casino offered games seven days a week for 16 hours a day Monday through Saturday and seven hours on Sunday. Numerous other inconsistencies between this operation and the governing law will likewise be shown at trial.

But again, this is not the trial stage, and the State was not required to plead all of those facts in its forfeiture petition. Instead, it was required to provide notice that it was seeking forfeiture of this equipment pursuant to Ala. Code 13A-12-20, et seq., and it has done so. This fully complies with the pleading obligations of Ala. R. Civ. P. 8. While all of HEDAs 12(b)(6) arguments are meritless, many of them are also procedurally improper because they rely on matters outside the States forfeiture petition. A motion to dismiss pursuant to Rule 12(b)(6) contemplates only the determination of whether the plaintiff's complaint states a claim upon which relief can be granted, and matters outside the pleadings never should be considered in deciding whether to grant such a motion. Brindley v. Cullman Reg'l Med. Ctr., 709 So. 2d 1261, 1263-64 (Ala. Civ. App. 1998), citingHales v. First Nat'l Bank of Mobile, 380 So. 2d 797 (Ala. 1980). Despite this prohibition, HEDA asks this Court to consider the Houston County local rules related to bingo (attached as Exhibit A to HEDAs Motion), HEDAs bingo permit that it obtained pursuant to those local rules (attached as Exhibit B to HEDAs Motion), and correspondence between HEDAs attorney and the State. Motion to Dismiss at 6-7, 10. HEDA also argues that some of the seized property belonged to entities not involved in the gambling activities. All of these facts are matters outside the pleadings that it would be improper for this Court to consider in a Rule 12(b) motion. Even if HEDAs 12(b)(6) arguments were not procedurally improper, they have no merit, for at least the following reasons. A. HEDAs due process rights have not been violated. Failing to recognize that the contraband and not HEDA is the defendant in this in rem proceeding, HEDA claims that its due process rights were violated because HEDA is being denied the requirement of adequate notice of the factual basis and elements of the alleged

offense, that was allegedly committed. Motion to Dismiss at 6. However, this is an action against the seized property and not a criminal prosecution, and neither is it an in personam civil action against any entity. Further, civil forfeiture actions are governed by the notice pleading requirements of Rule 8 and the States Complaint satisfies those requirements. As set forth in the Complaint, the State has alleged that the seized property and currency that are the defendant property in this case were used in illegal gambling operations, making them subject to seizure as contraband under Alabama criminal law. No cause of action criminal or civil has been pled against HEDA, and cases discussing due process rights of criminal defendants are irrelevant here. On a related note, throughout its Motion HEDA complains that the State has not filed criminal charges against anyone resulting from the seizure of the property at Center Stage. The State notes that its investigation into the matter is on-going, and that the statute of limitations for bringing any such charges will not run for many months. The State will make decisions regarding whether and when to charge people with criminal charges as its investigation develops. For now, it is sufficient to note that not a single Alabama case or statute has ever required criminal charges as a prerequisite to a forfeiture action under Ala. Code13A-12-20, et seq. B. The Houston County local rules regulating bingo do not require dismissal of this action. HEDA seeks dispositive protection for its illegal activity in the rules adopted by the Houston County Commission for the regulation of bingo. Motion to Dismiss at 6-7. Whether HEDA is even in compliance with those rules involves factual disputes outside the pleadings and is an issue for summary judgment or trial. It certainly cannot be decided on a motion to dismiss at the pleading stage. Moreover, unfortunately for HEDA, those rules are void because they are contrary to and inconsistent with the Alabama Constitution, Alabama Constitutional Amendment
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569, the enabling legislation passed in connection with Constitutional Amendment 569, and Alabama public policy. 1. The local rules can only authorize the playing of the game traditionally known as bingo, but the games being played on the seized machines are not bingo. Alabama has a strong public policy against gambling that begins with its Constitution. Section 65 states that the legislature has no power to authorize lotteries or gift enterprises for any purposes and requires the legislature to pass laws to prohibit the sale of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery. The elements of a prohibited lottery are a prize, awarded by chance, and for consideration. City of Piedmont v. Evans, 642 So. 2d 435, 436 (Ala. 1994), citing Pepsi Cola Bottling Co. of Luverne, Inc. v. CocaCola Bottling Co., Andalusia, 534 So. 2d 295 (Ala. 1988). Bingo for prizes is a lottery. Id. As a result, a constitutional amendment is required to authorize bingo games. Bingo is only authorized in Houston County if it is conducted in strict compliance with Constitutional Amendment 569. That amendment states that the operation of bingo games for prizes or money by certain nonprofit organizations and certain private clubs for charitable, educational, or other lawful purposes shall be legal in Houston County. Consistent with the Amendment, the enabling legislation passed by the State legislature to implement the amendment defines bingo as [t]he game, commonly known as bingo, where numbers or symbols on a card are matched with numbers or symbols selected at random. Act No. 95-420 at 1(a).1 Thus, [t]he only lottery legalized by the passage and ratification of Amendment No. [569] was and is the lottery of bingo. City of Piedmont v. Evans, 642 So. 2d 435, 436 (Ala. 1994) (construing similar language in Calhoun Countys bingo amendment); see also Barber v. Cornerstone Community Outreach, Inc., 42 So. 3d 65, 78-80 (construing similar language in

For the Courts convenience, copy of the enabling legislation is attached hereto as Exhibit A.

Lowndes Countys bingo amendment). Local authorities have no power under Alabama law to expand the definition of bingo beyond the traditional game. Id. As alleged in its Complaint and as the State will prove at trial, the games played on the seized machines were not the game traditionally known as bingo. As a result, the gambling interests cannot rely upon the local rules to give these games safe harbor. A preliminary Rule 12(b)(6) motion, however, is not the appropriate vehicle for resolving this merits issue. 2. To the extent the local rules authorize games beyond the game traditionally known as bingo, they are void because they are contrary to and inconsistent with the Alabama Constitution, Alabama Constitutional Amendment 569, the enabling legislation passed in connection with Constitutional Amendment 569, and Alabama public policy. Even though the local rules cannot by law authorize any game beyond the game commonly known as bingo, they attempt to do just that. They declare that all forms of the game known as bingo, including but not limited to, media forms of bingo, are subject to licensure and regulation in Houston County. Houston County, Alabama Resolution 10-10 at 3.2 The local rules are thus effectively trying to authorize a game that is not, in fact, bingo for the purposes of the Alabama Constitution. Indeed, the local rules admit that Amendment 569 does not authorize the games the rulemakers arguably attempted to authorize because the Amendment does not contemplate the impact of the technological evolution in computer technology upon the game of bingo and current media forms of bingo that have emerged from said technological advances. Resolution 10-10 at 3. Worse yet, the local rules purport to exempt machines purporting to play bingo from the Alabama Codes statewide prohibition on slot machines. Resolution 10-10 at 6. HEDAs reliance upon the rules reveals that their purported authorization of media bingo is nothing more than an attempted end-run around the States

The State has not attached a copy of the local rules as an exhibit because HEDA attached a copy to its motion. The States citations are to the local rules as paginated in HEDAs exhibit.
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anti-gambling laws that is squarely prohibited by established precedent and the Alabama Constitution. The Commission lacks the authority to exempt Houston County from the statewide criminal code and thereby create a zone of lawlessness in Houston County. Nor does it have the authority to expand the narrow scope of Amendment 569 beyond the traditional game of bingo, because an ordinance cannot prevail in conflict with state law except by provision of the state law itself. The public policy of the state, if any, respecting the subject matter of the ordinance must be considered, since an ordinance inconsistent with the states policy as written in its statutes is void. Barrett v. State, 705 So. 2d 529, 532 (Ala. 1996), quoting McQuillan, Municipal Corporations, 20.41 (3d ed. Rev. 1988). Nothing in Amendment 569 authorizes the Commission to expand the definition of bingo, and the State has a strong public policy against gambling. See Barber, 960 So. 2d at 614, quoting Opinion of the Justices No. 83, 31 So. 2d 753, 754 (Ala. 1947), quoting Johnson v. State, 3 So. 790, 791 (Ala. 1887) (It is the policy of the constitution and laws of Alabama [to prohibit] the vicious system of lottery schemes and the evil practice of gaming, in all their protean shapes.). The Commission lacks the authority to pass an ordinance that broadens the scope of the narrow exception to the prohibition of lotteries in the Alabama Constitution. Barrett v. State, 705 So. 2d 529, 532 (Ala. 1996). As the Alabama Supreme Court has consistently held, Alabamas local bingo amendments authorize only the game commonly or traditionally known as bingo, and local authorities cannot authorize anything else. Cornerstone, 42 So. 3d at 86. For confirmation that the local rules attempt to expand Amendment 569s authorization beyond the traditional game known as bingo, one need only look at the provision in them that declares the equipment used to play this newly legalized game of media bingo is exempt from

the criminal laws of the State of Alabama. According to the rules, Bingo Equipment and Supplies include dispensers, readers, electronic player stations, player terminals, central computer servers containing random number generators and other processing capabilities for remote player terminals, electronic consoles capable of providing game results in different display modes, telephones and telephone circuits, telephones, cables and other telecommunication circuits, and satellites and related transmitting and receiving equipment. Resolution 10-10 at 6. The rules then direct that such equipment shall not be deemed to be for any purpose a gambling device or slot machine within the meaning of the Code of Alabama 1975, Sections 13A-12-20(5) and (10) or any other provision of law, whether now in effect or hereafter enacted. Resolution 10-10 at 6. Nothing in Amendment 569 or any other provision of law gives the Houston County Commission the power to deprive either law enforcement or this Court from enforcing the criminal laws of this State. [A] municipalitys legislative authority is subordinate to the

Constitution of Alabama 1901 and the provisions of the Alabama Code meaning municipalities may only adopt ordinances not inconsistent with the laws of the state. Foster v. State, 705 So. 2d 534, 538 (Ala. 1997), quoting Ala. Code 11-45-1. The County Commission had no more authority to exempt such equipment from the criminal laws of this State than to exempt cocaine or marijuana from the States drug laws. 3. Even if the local rules were valid, on information and belief, the Court cannot decide at the pleading stage whether HEDAs operations are even in compliance with those rules. Even if one assumed the local rules could have some field of operation, the rules would still not provide a basis to dismiss this forfeiture action. Whether HEDA is operating in

compliance with those rules involves facts which are not only disputed, but are not even before the Court at this stage. Even under the illegal local rules, a bingo permit does not authorize any and every game that may be labeled as bingo. Holding a permit does not prove that the gambling at issue was the gambling authorized by that permit. Nor does it prove whether the permit was lawfully obtained. Resolving whether HEDA is in fact qualified to hold its permit and was acting within the scope of that permit involves matters well outside the Complaint and outside the scope of a 12(b) motion. C. Even if the State seized some property that was not used in illegal gambling, that is no reason to dismiss this lawsuit. HEDA argues that the State seized property that was not used in what HEDA calls charity bingo operations. Motion to Dismiss at 6-7. HEDA does not identify what property falls in this category, and the State has alleged in its Complaint that all of the property it seized was used in illegal gambling operations, and that all of the cash seized was used as bets or stakes in illegal gambling activity. Such factual disputes cannot be resolved on the pleadings on a motion to dismiss. The States averments must be taken as true on a Rule 12(b)(6) motion. D. The States Complaint satisfied the notice pleading requirements of Rule 8, and there are no heightened pleading requirements applicable to civil forfeiture petitions. Under Rule 8(a)(1), the States Complaint was required to contain a short and plain statement of the claim showing that the pleader is entitled to relief. The Complaint meets this standard. HEDAs argument that the Complaint fails to provide notice of even the most basic allegations as to how the Property has violated any law, or which of the eleven code sections was violated seeks to impose a higher standard than the notice pleading standard. Motion to Dismiss at 7. The States Complaint puts any party interested in the property on notice that it

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was seized because it was used in illegal gambling activity under Alabama law, which is all that Rule 8 requires. Discovery is the proper avenue for obtaining further information about the States case. HEDA states that a more rigorous pleading standard similar to that found in Rule 9(b) should be required, and argues for a similar extension of heightened pleading standards like that contained in Rule 9(b). Id. Such an extension is unsupported by any case law in this State and would fundamentally change how civil forfeiture actions have been conducted in this State for decades. This Court should decline HEDAs invitation to overturn such settled precedent. E. The State supported the search warrant with an affidavit establishing probable cause. On the day that it seized the property, the State furnished a copy of the search warrant and inventory list of all seized property to HEDAs counsel. Within a few days after the raid, it provided the Court that issued the warrant with a return describing the property that had been seized. By performing these two acts, the State fully satisfied its obligations under Alabama Rule of Criminal Procedure 3.11. HEDA has not identified any authority requiring the State to furnish it with the search warrant affidavit. See Motion to Dismiss at 10. HEDA misstates the relief that it would be due even if there were some issue with the warrant or affidavit. HEDA argues that if the seized evidence were due to be suppressed in a criminal action then this civil forfeiture petition would also be due to be dismissed. This is incorrect under Alabama Rule of Criminal Procedure 3.13. That rule provides that the only way a person is entitled to have seized property returned is if he or she is entitled to lawful possession of such property. In other words, even if HEDA could prove that the property was seized in violation of the Fourth Amendment and therefore could not be used as evidence in a

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criminal action, HEDA would still have to prove that it was entitled to lawful possession of the property before the State would be required to return it. As the committee comment to Rule 3.13 provides, [o]f course, if the property seized is contraband, it can be lawfully held even if the property is subject to the exclusionary rules and does not have to be returned. Ala. R. Crim. P. 3.13 Commentary (emphasis added). The United States Supreme Court has also endorsed this rule, holding that per se contraband does not need to be returned even though it was improperly seized and could not be used as evidence in a criminal proceeding because of the exclusionary rule. See Trupiano v. United States, 334 U.S. 699, 710 (1948); accord United States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir. 1991) (A motion for return of property ... may be denied if the defendant is not entitled to lawful possession of the seized property, the property is contraband or subject to forfeiture or the government's need for the property as evidence continues.). HEDA has not and cannot prove that it is lawfully entitled to possession of the seized property. Accordingly, the State is not required to return it. F. Rule 64 does not require a pre-seizure hearing when the State seizes illegal contraband pursuant to its police power. Rule 64 applies to seizures that occur [a]t the commencement of and during the course of an action. But there was no civil action in existence when this contraband was seized meaning that, by its plain language, Rule 64 does not apply. Further, a review of the Committee Comments reveals that Rule 64 was designed to cover a situation where a creditor attempted to seize the property of a debtor prior to the entry of judgment. See Committee Comments on 1973 Adoption (This revision of ARCP 64 responds to the need to strike a reasonable balance between the creditors right to enforce his remedy and the debtors right to procedural due process.). The most-discussed case in the 1973 Comments, Fuentes v. Shevin, 407 U.S. 67
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(1972), involved the Supreme Court holding that Florida and Pennsylvania statutes which allowed private party creditors to seize property from debtors without a hearing violated due process. The Comments indicate that Rule 64 was revised following Fuentes and two related cases so as to keep this aspect of Alabama law current with the latest pronouncements of the United States Supreme Court. The current controlling pronouncement[ ] of the United States Supreme Court is not Fuentes, but rather Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 (1974), in which the Court allowed seizure without an advance hearing because seizure served the significant governmental purpose[ ] of allowing Puerto Rico to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings. Indeed, the Eleventh Circuit has recently held, in connection with Alabamas enforcement of its gambling laws in Houston County, that Calero-Toledo is the controlling case and that we have no trouble concluding that the due process clause does not afford an entity without an ownership interest a hearing in the face of threatened seizure. Lord Abbett Mun. Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1208 (11th Cir. 2012). The State is not a private party. It is also not a creditor of the entities holding an interest in the seized property. The State seized the property at issue while executing a search warrant issued under Alabama criminal law, and did so pursuant to its police power. Consistent with applicable criminal law and decades of precedent, the State developed probable cause that the seized property was illegal, obtained a search warrant, and then seized the property pursuant to that search warrant. As a result, it was not required to follow the procedures set forth in Rule 64 governing prejudgment attachment in a civil case. HEDA has cited no authority, and the State is aware of none, where Rule 64 has been held to apply to contraband found and seized by the State

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during the execution of a search warrant, and only then made the subject of a later-filed civil forfeiture action. II. HEDAs Arguments Under Rule 12(b)(2), (4), and (5) are premature, rest on a mistaken legal premise, and, in any event, are moot. HEDA also requests a dismissal pursuant to Rule 12(b)(2), (4), and (5) for lack of personal jurisdiction, insufficient process, and insufficient service of process. Motion to Dismiss at 3-5. The central premise of HEDAs arguments is that the State was required to serve HEDA with a copy of the summons and complaint pursuant to Rule 4. To be clear, the State sent a copy of the Complaint via certified mail to all the entities that it believed might have an interest in the seized property. See certified mail receipts, attached hereto as Exhibit B. As shown in Exhibit B and as evidenced by its motion, HEDA received a copy of the Complaint.3 HEDAs arguments pursuant to each of these provisions are premature, rest on a mistaken legal premise, and, in any event, are moot. A. Rule 4 allows 120 days for service of process, but only 42 days have passed since the State filed its complaint. Rule 4(b) states that a plaintiff has 120 days after the filing of its complaint to serve defendants. Even after the passage of that time period, the action cannot be dismissed as to any unserved defendants without at least fourteen days notice to the plaintiff. The State filed its Complaint in the present case on July 26, 2012, a mere twenty-nine days before HEDA filed its Motion to Dismiss. As of the date of this filing, only forty-two days have elapsed since the date of initial filing. As a result, under Rule 4, the State would still have nearly 80 days to perfect such service before the initial 120 day period expired. HEDAs Motion is therefore highly premature at best.

The State did not send a copy of the Complaint to Baron because it was unaware of Barons interest in the seized property.
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B. HEDAs arguments rest on a mistaken legal premise because Rule 4 only requires service of process on a defendant and HEDA is not a defendant. Rule 4 requires that a plaintiff serve a copy of the summons and complaint upon all defendants to an action. In a civil forfeiture action, however, the seized property is the only defendant. A civil forfeiture action is not an action in personam against the owner or claimant of the property; rather, it is an action in rem against the property itself. Agee v. State ex rel. Galanos, 627 So. 2d 960, 962 (Ala. Civ. App. 1993), citing United States v. One Parcel of Property, 964 F.2d 814 (8th Cir. 1992). Consistent with the in rem nature of this action, the State has not sought any relief from HEDA or any other entity. Further, HEDA does not contend that it is a defendant. Instead, HEDA describes itself as a real party in interest with respect to the Property and argues that its participation in the case is essential to finality of any judgment entered in this case. Motion to Dismiss at 4. HEDA is wrong on both counts. HEDA may claim an ownership interest in the seized property that entitles it to intervene in the action, but it is not a real party in interest such that its participation is required for the State to obtain a judgment that the seized property is illegal. The States seizure of the illegal gambling devices and proceeds here is no different than its seizure of illegal drug proceeds. Just like the drug dealers participation in a forfeiture action is not required for the State to obtain a binding decision that the seized drug proceeds are forfeit, the State can obtain a judgment against illegal gambling devices and proceeds even if entities with ownership interests do not participate in a forfeiture action. The cases cited in HEDAs motion do not change this result, as none of them involved civil forfeiture actions. As previously noted, the State sent copies of the Complaint to every entity that it believed might have an interest in the seized property. Those entities, plus any others of which the State is not aware, now have the chance to intervene in this action to protect their interest in the seized
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property. Their presence is not required, however, for this action to proceed. Nor is the State required to serve them under Rule 4 as if they were defendants. C. In any event, HEDAs arguments will soon be moot because the State has now initiated the process to serve it under Rule 4. While the State maintains that service under Rule 4 is not required upon any entity in a civil forfeiture action, in order to move this case forward, the State has initiated the process to serve HEDA, Baron, and the entities listed on the certificate of service on the States complaint in accordance with Rule 4. This effort is timely under the rules. Accordingly, HEDAs arguments related to service of process will be moot in the near future.

Conclusion WHEREFORE, PREMISES CONSIDERED, the State prays that this Honorable Court deny the Motion to Dismiss in its entirety.

Respectfully submitted, LUTHER STRANGE (STR003) ATTORNEY GENERAL By: /s/ Jess R. Nix Jess R. Nix (NIX014) Deputy Attorney General Counsel for the State of Alabama

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OF COUNSEL: Henry T. Sonny Reagan (REA021) Jess R. Nix (NIX014) Office of the Attorney General 501 Washington Avenue Post Office Box 300152 Montgomery, AL 36130-0152 (334) 242-7300 Office (334) 242-4890 FAX sreagan@ago.state.al.us jnix@ago.state.al.us

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CERTIFICATE OF SERVICE
I hereby certify that I have this date served the above and foregoing on: Ernest H. Hornsby, Esq. Ashton Ott, Esq. FARMER, PRICE, HORNSBY & WEATHERFORD, L.L.P P.O. Drawer 2228 Dothan, AL 36302 William C. White, Esq. PARKMAN & WHITE, LLC 1925 Third Avenue North Suite 700 Birmingham, AL 35200 John Jameson Givens The Cochran Firm-Dothan P.C. Post Office Box 927 Dothan, Alabama 36302 Jeff S. Daniel Law Office of Jeff S. Daniel, P.C. P.O. Box 131323 Birmingham, Alabama 35213 D. W. Grimsley, Jr. D. W. Grimsley, Jr. P.C. 21 South Section Street Fairhope, Alabama 36532 Anthony A. Joseph Donald F. Winningham III Maynard, Cooper, and Gale, P.C. 1901 Sixth Avenue North 2400 Regions Herbert Plaza Birmingham, Alabama 35203

by electronic notice via the AlaFile system or by placing a copy of same in the United States Mail, to their regular mailing addresses, on this 6th day of September 2012.

/s/ Jess R. Nix OF COUNSEL

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ELECTRONICALLY FILED 9/6/2012 3:49 PM CV-2012-900266.00 CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA CARLA H. WOODALL, CLERK

ELECTRONICALLY FILED 9/6/2012 3:49 PM CV-2012-900266.00 CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA CARLA H. WOODALL, CLERK