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Chesshir v. Taylor

United States District Court, W.D. Arkansas, Texarkana Division

March 20, 2015

MICHAEL CHESSHIR; and JENNIFER CHESSHIR, Plaintiffs,
v.
BRADLEY TAYLOR; MOLLY TAYLOR; JANELLE WHITE; BRADLEY TAYLOR d/b/a TAYLOR & TAYLOR DEVELOPMENT, LLC;MOLLY TAYLOR d/b/a TAYLOR & TAYLOR DEVELOPMENT, LLC; JANELLE WHITE d/b/a TAYLOR & TAYLOR DEVELOPMENT, LLC; and TAYLOR & TAYLOR DEVELOPMENT, LLC, Defendants.

ORDER

SUSAN O. HICKEY, District Judge.

Before the Court is the Motion to Remand filed on behalf of Plaintiffs Michael Chesshir and Jennifer Chesshir ("the Chesshirs"). (ECF No. 12). Defendants have filed a Response. (ECF No. 15). The Chesshirs have replied to Defendants' response (ECF No. 16) and have supplemented their reply (ECF No. 18). The Court finds this matter ripe for its consideration.

The Chesshirs argue that the case should be remanded because this Court: (1) lacks general personal jurisdiction because the Defendants have continuous and systematic contacts with the state of Arkansas; (2) lacks specific personal jurisdiction over the case because Arkansas state court has proper jurisdiction; and (3) lacks subject matter jurisdiction because the parties are not completely diverse. Defendants respond that jurisdiction is proper because: (1) the Chesshirs have waived any personal jurisdiction argument; (2) the Court has personal jurisdiction over the Chesshirs; and (3) the nondiverse defendant, Janelle White, has been improperly joined.

I. Background

On or about December 11, 2012, Taylor & Taylor and the Chesshirs entered into a construction contract regarding property owned by the Chesshirs at 3711 Jack Cullen Drive in Texarkana, Arkansas. The Chesshirs allege that they have remitted funds to Defendants in exchange for construction in a good workmanlike manner, and that Defendants have failed to complete the construction project as agreed by the terms of the contract.

On July 17, 2014, the Chesshirs filed suit in Miller County, Arkansas Circuit Court alleging the following causes of action against Defendants: (1) Violation of Arkansas Code Annotated § 18-44-108; (2) Fraud/Breach of Contract; (3) Conversion/Breach of Contract; and (4) Negligence. On August 20, 2014, Defendants filed a Notice of Removal in this Court. (ECF No. 1). On October 14, 2014, Plaintiffs filed the instant Motion to Remand.

II. Discussion

A. Waiver of Personal Jurisdiction

Defendants assert that the Plaintiffs have waived their right to raise their personal jurisdiction arguments. "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal." 28 U.S.C. § 1447(c). Defendants filed their Notice of Removal on August 20, 2014. Plaintiffs did not file their Motion to Remand until October 14, 2014 - fifty-five days after Defendants filed their Notice of Removal. Plaintiffs give the Court no reason why their Motion was filed late. Therefore, all defects other than subject matter jurisdiction arguments have been waived by Plaintiffs.[1]

B. Personal Jurisdiction

Even if the parties had not waived personal jurisdiction arguments, those arguments fail. Initially, the Court notes that Plaintiffs have raised personal jurisdiction arguments as a basis for remand. Because state and federal courts have concurrent jurisdiction over certain persons, the arguments are usually made in terms of a motion to dismiss.

Plaintiffs argue the Court lacks both general and specific personal jurisdiction over the parties. A state may exercise general jurisdiction if a defendant has carried on in the forum state a continuous and systematic, even if limited, part of its general business; in such circumstances the alleged injury need not have any connection with the forum state. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779 (1984). Specific jurisdiction on the other hand is appropriate only if the injury giving rise to the lawsuit occurred within or had some connection to the forum state, meaning that the defendant purposely directed its activities at the forum state and the claim arose out of or relates to those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).

The Court finds that it has general personal jurisdiction over the parties. The Court has general personal jurisdiction over Plaintiffs because they are residents of the state of Arkansas. See Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 592-593 (8th Cir. 2011). The Court has general personal jurisdiction over Defendants because of their minimum contacts with the state and because Defendants have consented to personal jurisdiction. Sondergard v. Miles, Inc., 985 F.2d 1389, 1394-95 (8th Cir. 1993); Knowlton v. Allied Van Lines, 900 F.2d. 1196, 1199 (8th Cir. 1990).

Plaintiffs next argue that the case should be remanded to Arkansas state court because this Court lacks specific personal jurisdiction over the Plaintiffs. Particularly, the Plaintiffs argue that the factors from Land-O-Nod v. Bassett Furniture Industries, ...


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