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PRIOR PENDING ACTION - EX PARTE COMPASS D/B/A BBVA COMPASS AND AMY HOVIS

In Ex parte Compass d/b/a BBVA Compass and Amy Hovis, [Ms. 1100870, Aug. 5, 2011] __ So. 3d __(Ala. 2011), the Alabama Supreme Court held that under Ala. Code ¤ 6-5-440, the plaintiff's pending appeal in federal court abates his subsequently filed state-court action against the same defendants when both actions arise out of the same set of facts. In October 2010, Plaintiff filed a complaint against Defendants in federal district court alleging breach of contract, breach of fiduciary duty, violations of the Truth in Lending Act, violations of the Real Estate Settlement procedures Act, fraud, deceit, and violations of the Fair Debt Collections Practices Act. In December 2010, the federal district court dismissed the plaintiff's federal claims with prejudice and declined to exercise supplemental jurisdiction over the remaining state law claims. On February 11, 2011, Plaintiff filed a Notice of Appeal with the United States Court of Appeals for the Eleventh Circuit. He appealed the dismissal of his federal law claims as well as the district court's refusal to exercise jurisdiction over the state law claims. On the same day, Plaintiff filed a complaint in Madison County Circuit Court against the same defendants alleging breach of contract, breach of fiduciary duty, fraudulent concealment, accounting for bonds, deprivation of possession of personal property in violation of Ala. Code ¤ 6-5-260, conversion, money had and received, unjust enrichment, and civil conspiracy. The causes of action in the state court complaint arose from the same set of facts as the federal causes of action on appeal. The Court recognized that Terrell v. City of Bessemer, 406 So. 2d 337 (Ala. 1981) outlined an exception to the abatement rule that "applies to allow a second action on the same cause when the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground or, having jurisdiction, would clearly have declined to exercise jurisdiction as a matter of discretion" (emphasis in original). However, the Court held that this exception did not apply to the present case because "it remains unclear whether the federal district court will entertain [the plaintiff's] state-law claims, which will be reinstated if [the plaintiff] succeeds on appeal."

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