Case: 15-13836    Date Filed: 04/20/2016   Page: 1 of 9


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13836
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:13-cv-00922-WKW-SRW



PAUL HARD,

                                             Plaintiff - Appellee,


                                 versus


ATTORNEY GENERAL, STATE OF ALABAMA,

                                             Defendant,

PAT FANCHER,

                                             Intervenor - Defendant -

                                             Appellant,

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________
                            (April 20, 2016)
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Before JORDAN, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Pat Fancher appeals the dismissal of this case and the distribution of

proceeds from a wrongful death settlement from her son’s estate to his spouse,

Paul Hard. She argues that, because the State of Alabama declined to recognize

her son’s marriage to Hard at the time of her son’s death, she is entitled to the

remaining portions of the wrongful death settlement under Alabama law of

intestate succession. Upon review of the record and consideration of the parties’

briefs, we affirm.

                                          I.

      Paul Hard and David Fancher were married in Massachusetts on May 20,

2011. The couple returned home to Alabama after their wedding. At that time,

Alabama refused to recognize same-sex marriages under the state’s Sanctity of

Marriage Amendment. Ala. Const. Art. I, § 36.03.

      On August 1, 2011, David Fancher was traveling on the interstate when his

vehicle collided with a United Parcel Service (“UPS”) tractor trailer. He died that

day. Fancher’s death certificate indicated that he was “Never Married,” and the

space for the name of the “Surviving Spouse” was left blank.

      In 2012, David Fancher’s estate filed a wrongful death lawsuit against UPS.

Although David Fancher had named Hard as the sole beneficiary of his will,
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Alabama law dictates that estates disburse wrongful death proceeds according to

the laws of intestate succession regardless of whom the deceased named as

beneficiaries. Ala. Code. § 6-5-410(c). If there are no children, but there is at least

one surviving parent, a surviving spouse receives the first $100,000 plus one half

of the balance of the wrongful death proceeds. See id. § 43-8-41(2). If there is

also no surviving spouse, the estate passes to the parents. See id. § 43-8-42(2).

      In December 2013, Hard filed this lawsuit against various Alabama state

officials and the administrator of David Fancher’s estate seeking, among other

relief: (1) a declaration that Alabama’s laws prohibiting the recognition of lawful

same-sex marriages was unconstitutional and an injunction requiring Alabama

officials to recognize marriages of same-sex couples entered in other jurisdictions;

(2) an injunction requiring Alabama to correct David Fancher’s death certificate to

reflect his marriage to Hard; and (3) an injunction ordering David Fancher’s estate

to distribute the spousal share of any wrongful death settlement to Hard. Pat

Fancher sought to intervene in the case, arguing that, as David Fancher’s mother,

she was entitled to the full proceeds from the wrongful death settlement because

Hard was not David Fancher’s surviving spouse. The district court granted her

unopposed motion to intervene.

      In February 2014, the administrator of David Fancher’s estate agreed to set

aside the spousal share of any proceeds from the wrongful death suit until the


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district court determined whether Hard was David Fancher’s surviving spouse.

Several months later, the estate settled with UPS. The estate’s administrator paid

about half of the wrongful death proceeds, after attorneys’ fees, to Pat Fancher

because neither party disputed that as David Fancher’s mother she was due those

proceeds under Alabama law. The administrator held in a private trust the

settlement’s spousal share, totaling over half a million dollars, pending the

outcome of this lawsuit.

       A district court in the Southern District of Alabama declared Alabama’s

same-sex marriage ban unconstitutional on January 23, 2015. Searcy v. Strange,

81 F. Supp. 3d 1285 (S.D. Ala. 2015). On February 9, 2015, the Alabama State

Registrar of Vital Statistics issued an amended death certificate recognizing David

Fancher’s marriage to Hard. Shortly thereafter, the district court permitted the

administrator of the estate to intervene in this case for the limited purpose of

paying the disputed settlement proceeds from the private trust into the court’s

registry.

       In March 2015, the district court stayed this case pending the United States

Supreme Court’s resolution of Obergefell v. Hodges, which considered the

constitutionality of state bans on same-sex marriage. Three months later, the

Supreme Court held that same-sex marriage is a fundamental right under the

United States Constitution. Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015).


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          After Obergefell, Hard moved to lift the stay of the case and to disburse to

him the spousal share of the settlement proceeds. Shortly thereafter, the Alabama

Attorney General moved to dismiss the case on the ground that the claims against

him were moot. The Attorney General explained that Hard already had received

the relief he sought against the Attorney General because (1) the Attorney General

already was subject to (and complying with) an injunction that prohibited him from

enforcing Alabama’s same-sex marriage ban; (2) the Supreme Court’s decision in

Obergefell held that the Fourteenth Amendment required states to issue marriage

licenses to same-sex couples; and (3) the State of Alabama had issued an amended

death certificate reflecting David Fancher’s marriage to Hard. In essence, the

Attorney General argued, the district court could no longer enter any effective

relief.

          On July 15, 2015, the district court granted Hard’s motion to lift the stay and

to disburse the funds. At the same time, the district court granted the Attorney

General’s motion to dismiss the case for mootness and denied the pending motions

for summary judgment without reaching the merits.

          The next day, Pat Fancher filed a Motion to Set Aside Order of Dismissal in

which she argued that unless Obergefell applies retroactively, the amended death

certificate was invalid. She contended that because Alabama law did not recognize

David Fancher’s marriage at the time of his death, she was entitled to the entirety


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of the wrongful death settlement. The district court denied the motion and ordered

the Clerk of Court to distribute the spousal share of the settlement proceeds to

Hard. The district court then entered a final judgment. Pat Fancher appeals the

final judgment and the orders dismissing the case, denying the motion to set aside

the dismissal, and directing the disbursement of funds.

                                          II.

      We review de novo a dismissal for mootness. See Nyaga v. Ashcroft, 323
F.3d 906, 912 (11th Cir. 2003). We review a district court’s denial of a motion for

reconsideration for an abuse of discretion. Richardson v. Johnson, 598 F.3d 734,

740 (11th Cir. 2010). And we review the district court’s decision to release funds

held in the court’s registry for an abuse of discretion. See Zelaya/Capital Int’l

Judgment, LLC v. Zelaya, 769 F.3d 1296, 1300 (11th Cir. 2014) (reviewing for

abuse of discretion the decision to allow a party to deposit disputed funds into the

court’s registry); Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 753 (11th

Cir. 2002) (reviewing for abuse of discretion the denial of the release of funds

pursuant to a preliminary injunction).

                                         III.

      Pat Fancher argues that the district court erred in dismissing the case

because under Alabama law Hard was not legally married to her son at the time of

his death. Specifically she contends that Obergefell is not retroactive and cannot


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make a same-sex marriage that was illegal in 2011 legal for the purposes of a

wrongful death settlement in 2014.

       We need not address this argument. The district court dismissed the case on

mootness grounds, yet Pat Fancher failed to raise any argument challenging this

decision in her opening brief on appeal.1 She did not “devote even a small part of

[her] opening brief to arguing the merits of the district court’s” decision to dismiss

the case on mootness grounds. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681 (11th Cir. 2014). In fact, the word “mootness” appears nowhere in her

opening brief. Repeatedly, we have “refused to consider issues raised for the first

time in an appellant’s reply brief.” United States v. Levy, 379 F.3d 1241, 1244

(11th Cir. 2004). Because Pat Fancher abandoned on appeal any argument that the

district court erred in dismissing the case on mootness grounds, we affirm the

dismissal.

       Even assuming Pat Fancher did not abandon her challenge to the district

court’s mootness determination, however, the district court committed no error in

dismissing the case as moot. That is because Hard had received the relief he

sought. See Reich v. Occupational Safety & Health Review Comm’n, 102 F.3d
1200, 1201 (11th Cir. 1997) (“A case becomes moot when the issues presented are

no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
       1
          We also note that she raised no challenge to the district court’s mootness decision in the
district court, despite filing a Motion to Set Aside Order of Dismissal.

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(internal quotation marks omitted)). Hard sought three forms of relief in his

complaint. First, he sought a declaratory judgment that Alabama’s same-same sex

marriage ban was unconstitutional and an injunction requiring Alabama state

officials to recognize marriages of same-sex couples. He received that relief after

the Southern District of Alabama issued Searcy and the Supreme Court issued

Obergefell. Second, Hard sought an injunction requiring the State of Alabama to

modify David Fancher’s death certificate to reflect his marriage to Hard. Hard

received that relief when the Alabama State Registrar of Vital Statistics issued an

amended version of David Fancher’s death certificate. Third, Hard sought to

receive the spousal share of the wrongful death proceeds according to Alabama

law. He received that relief when the district court ordered that the proceeds be

distributed to him. Thus, the district court was left with no live controversy on

which to rule.2

       Pat Fancher also challenges the district court’s order directing the Clerk of

Court to disburse to Hard the spousal share of the wrongful death settlement. We

conclude there was no abuse of discretion because the district court properly

applied Alabama law of intestate succession pertaining to surviving spouses.

Simply put, once the State of Alabama recognized Hard as the surviving spouse

       2
          Similarly, there was no abuse of discretion when the district court denied Pat Fancher’s
Motion to Set Aside Order of Dismissal. Functionally a motion for reconsideration, the motion
failed to explain why the case was not moot despite Hard’s receipt of the relief he sought.
Accordingly, we affirm the denial of that motion.

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and the district court dismissed the case as moot, the court committed no abuse of

discretion by disbursing the funds accordingly.

         We affirm the district court’s final judgment and orders dismissing the case,

denying the motion to set aside the dismissal, and directing the disbursement of

funds.

         AFFIRMED.




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