North Pacific Group v. Curt Bean Lumber Company, Inc.

Filing 66

ORDER granting in part and denying in part 27 Motion to Dismiss for Lack of Jurisdiction and granting in part and denying in part 34 Motion to Dismiss for Lack of Jurisdiction. All claims and counterclaims between Bean Lumber and Scott Thomason, Corey Thomason, and Mid-Ark Lumber are DISMISSED WITHOUT PREJUDICE; denying as moot 39 Motion to Stay; denying as moot 63 Motion to Extend; denying as moot 65 Motion to Continue; Scott Thomason, Mid-Ark Lumber, Inc. and Corey Thomason terminated as third party defendants. Signed by Honorable Robert T. Dawson on May 13, 2009. (dmc)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

NORTH PACIFIC GROUP v. CURT BEAN LUMBER CO. v. SCOTT THOMASON, COREY THOMASON, MID-ARK LUMBER v. NORTH PACIFIC GROUP ORDER Before the Court are the Curt Case No. 6:08-CV-6037

PLAINTIFF

DEFENDANT/ThirdParty PLAINTIFF

Third-Party DEFENDANTS/CROSSCLAIMANTS CROSS-DEFENDANT

Motions Bean

to

Dismiss Company's

Defendant/Third-Party

Plaintiff

Lumber

claims for Lack of Subject Matter Jurisdiction (Docs. 27,34) filed by Third-Party Defendants Scott Thomason, Corey Thomason, and Mid-Ark Lumber, Inc. The Third-Party Defendants also seek

to stay the current action while the possibility of criminal action against them remains viable (Doc. 39). Defendant/Third-

Party Plaintiff Curt Bean Lumber Company (Bean Lumber) seeks to amend the scheduling order (Doc. 63) and/or continue the trial date (Doc. 65). For the reasons discussed below, the Motions to

Dismiss (Docs. 27, 34) are GRANTED IN PART AND DENIED IN PART, and the pending Motions to Stay (Doc. 39), to Amend the

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Scheduling Order (Doc. 63) and to continue the trial date (Doc. 65) are DENIED AS MOOT. A. Background North Pacific filed its original complaint on April 8, 2008 seeking payment of $748,517.22 plus interest and attorney's fees for shipments of wood products between June 13, 2007 and August 16, 2007. Bean Lumber claimed it was not obligated to pay North

Pacific because its claims are barred by "set-off, recoupment, estoppel, unclean hands and in pari delicto." On December 15, 2008, Bean Lumber filed claims against Scott Thomason, alleging Corey a Thomason, pattern Mid-Ark of Lumber, of and North

Pacific

broad

breaches

fiduciary

duties; fraud and deceit; conversion; civil conspiracy; and deceptive trade practices. Mid-Ark, the Thomasons, and North

Pacific have filed their own cross-claims and counterclaims relating to the conduct alleged in Bean Lumber's claims. The parties do not contest that Bean Lumber and North Pacific are citizens of different states, and it is clear that the Court has diversity jurisdiction over North Pacific's

original complaint.

It is also uncontested that Bean Lumber's

claims do not allege a federal question and that Bean Lumber, Corey Thomason, Scott Thomason, and Mid-Ark Lumber are all citizens of Arkansas for purposes of diversity of citizenship. Thus only the claims between Bean Lumber and the Third-Party

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Defendants are non-diverse. B. Discussion 1. Motions to Dismiss Although the Third-Party Defendants seek dismissal of Bean Lumber's counterclaim against North Pacific, they provide no basis for casting doubt on the Court's jurisdiction. Bean

Lumber's counterclaim against North Pacific involves parties that are citizens of different states and satisfies the amount in controversy. Dismissal of Bean Lumber's Counterclaim against North Pacific is therefore DENIED. Since the Third-Party Plaintiff Bean Lumber, and the ThirdParty Defendants are non-diverse, the Court must determine whether it has supplemental jurisdiction over the Third-Party Claims. Courts have supplemental jurisdiction "over all other

claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a). Claims within the action are

part of the same case or controversy if they "derive from a common nucleus of operative fact." 429 F.3d 740, 746 (8th Cir. 2005). In Bean Lumber's Response (Doc. 43), it admits that the invoices that form the subject matter of North Pacific's Myers v. Richland County,

original complaint are dated subsequent to the invoices that are the subject of Bean Lumber's counterclaims and cross claims. Page 3 of 5

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The subject matter of North Pacific's original complaint is therefore distinct from the subject matter of all other claims in this case and there is no common nucleus of operative fact. The Court lacks subject matter jurisdiction over Bean Lumber's Third-Party claims and the Third-Party Defendants' counterclaims against Bean Lumber. Lumber, the Thomasons Accordingly, all claims between Bean and Mid-Ark are DISMISSED WITHOUT

PREJUDICE.

With the dismissal of the claims between the Third-

Party Plaintiff Bean Lumber and the Third-Party Defendants, the Motion to Stay is DENIED AS MOOT. 2. Motion to Amend the Scheduling Order and Motion to Continue the Trial Date Bean Lumber premised its motions to amend the scheduling order and continue the trial date on discovery difficulties with the Third-Party Defendants. With the dismissal of the Third-

Party Defendants, Bean Lumber's motions are DENIED AS MOOT. C. Conclusion Third-Party Defendants' Motions to Dismiss (Docs. 27, 34) are GRANTED IN PART AND DENIED IN PART. All claims and counter-

claims between Bean Lumber and Scott Thomason, Corey Thomason, and Mid-Ark Lumber are DISMISSED WITHOUT PREJUDICE. Third-Party Defendants' Motion to Stay is DENIED AS MOOT. Bean Lumber's

Motions to Amend the Scheduling Order and for Continuance of Trial Date (Docs. 63, 65) are DENIED AS MOOT. This matter

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remains set for a jury trial beginning August 10, 2009. IT IS SO ORDERED this 13th day of May, 2009. /s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge

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