Lovston v. Skechers USA Inc

Filing 10

ORDER remanding this case to the Circuit Court of Lonoke County, Arkansas, for want of jurisdiction. The Court stays the remand until August 5, 2011 and invites the parties' arguments on this planned disposition in the meantime. The 6 Motion to Dismiss is denied as moot. Signed by Judge D. P. Marshall Jr. on 7/19/11. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

TERENA LOVSTON, an Arkansas
resident on behalf of herself and all
other Arkansas residents similarly
situated

v.

PLAINTIFF

Case No. 4:11-cv-460-DPM

SKECHERS USA, INC.

DEFENDANT

ORDER
This case echos Murphy v. Reebok International, Ltd., 2011 WL 1559234
(E.D. Ark. 22 April 2011): a removed putative class action about toning shoes
with damage-cap stipulations from Plaintiff and her lawyers. Lovston's early
motion for class certification came over with the complaint. Arguing from the
first-filed rule and the then-pending request for an interlocutory appeal in a
companion case, Skechers has moved to dismiss, transfer, or stay. Lovston
has not responded to that motion or moved to remand.
The companion case, Tomlinson v. Skechers USA, Inc., No. 5:11-cv-5042
(W.D. Ark.), raised the identical jurisdictional issue; and waiting for the Court
of Appeals' decision on the merits of that issue would have made good sense.

But the Eighth Circuit recently denied Skechers' petition for leave to appeal.
Though Skechers' petition for rehearing en banc remains pending, the
mandate has issued and that door looks shut. Skechers intends to petition for
certiorari, which is always a long shot and will take many months in any

event.
The request to dismiss or transfer is imminently reasonable given the
other pending federal cases that were filed long before this one. The power
to dismiss or transfer on this basis, however, assumes subject matter
jurisdiction. And for the reasons elaborated in Murphy, this Court concludes
it has no jurisdiction given the binding stipulations. (The Court does take this

opportunity to correct a mistaken statement of law it made in Murphy: under
the Class Action Fairness Act, no one-year limitation on removal petitions
exists. Compare 28 U.5.C.A. § 1453(b) (West 2006), with Murphy, 2011 WL
1559234, at *3.)
This case is therefore remanded to the Circuit Court of Lonoke County,
Arkansas, for want of jurisdiction. Skechers' motion to dismiss, transfer, or
stay, Document No.6, is denied as moot. The class-certification issue remains
unresolved.

Because the <;=ourt is acting without a motion on the

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jurisdictional issue, the remand is stayed until 5 August 2011. The Court
invites the parties' arguments on this planned disposition in the meantime.
So Ordered.

D.P. Marshall Jr.

United States District Judge

Wuly 2011

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