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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 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; TAYLOR & TAYLOR DEVELOPMENT, LLC; BRADLEY TAYLOR; MOLLY TAYLOR; and JANELLE WHITE, 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. 19). Defendants Taylor & Taylor Development, LLC ("Taylor & Taylor"), Bradley Taylor, Molly Taylor, and Janelle White have filed a response. (ECF No. 33). LaJoie Ventures, L.P. d/b/a Heritage Hardwood Floors has also filed a response. (ECF No. 29). LaJoie Ventures was dismissed as a party to this lawsuit by an agreed motion of the parties. (ECF No. 34). Thus, the Court has not considered LaJoie Ventures's response for the purposes of this Order. For the reasons stated herein, Plaintiffs' Motion for Remand should be DENIED.

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 to by the terms of the contract. Defendants assert that the Complaint is based on a contractual relationship between the Chesshirs and Heritage, which was consummated after Taylor & Taylor ceased work on the Chesshirs' residence.

On September 30, 2014, the Chesshirs filed suit in Miller County, Arkansas Circuit Court alleging five causes of action against Defendants: (1) failure to comply to form of lien, (2) failure to comply with applicable requirements of lien, (3) slander of title against LaJoie Ventures, (4) failure to defend owner from lien claimants, and (5) slander of title against Taylor & Taylor, Bradley Taylor, Molly Taylor, and Janelle White. On October 27, 2014, Defendants filed a Notice of Removal in this Court. (ECF No. 1). On November 4, 2014, Plaintiffs filed the instant Motion to Remand.

II. Discussion

The Chesshirs's arguments supporting remand are as follows: (1) Defendants did not timely remove the case; (2) this Court lacks personal jurisdiction over the parties; and (3) this Court lacks subject matter jurisdiction over the lawsuit.

A. Timeliness of Responsive Pleading

The Chesshirs argue that Ark. Code Ann. § 18-44-118(f)(3)(B) and the Arkansas Supreme Court's holding in Allstate Ins. Co. v. Bourland, 758 S.W.2d 700 (Ark. 1988) instruct that the causes of action should be remanded since Defendants did not remove their action within five (5) days of the filing of the Notice to Discharge the Lien. Defendants respond that the lien was discharged before the Chesshirs filed their lawsuit, and thus the filing of the Notice to Discharge was moot as the Chesshirs had not suffered an injury which could be redressed by the state court. Further, even if the filing was not moot, the Arkansas statute does not alter Defendants' time to remove the case to federal court to respond to the remaining allegations in the Complaint.

Defendants' Notice of Removal was timely. Congress, in 28 U.S.C. § 1146(b), affords defendants 30 days to file their notice of removal after receipt of a copy of the initial pleading. The Bourland decision from the Arkansas Supreme Court is inapposite. In that case, the Court held that the filing of an answer in federal court when removal was not effected properly in state court did not protect the defendant from a default judgment in state court. Those are not the issues before this court. Instead, here, Defendants appropriately and timely filed their removal documents in state court. They did not respond within five days to the Notice to Discharge the Lien. However, that does not effect the timing for proper removal in this court.

B. Personal Jurisdiction

Plaintiffs argue the Court lacks both general and specific personal jurisdiction over the parties. 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.

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. ...


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