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)

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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 -2­ 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 -3­

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