Schlenker et al v. Sells et al

Filing 40

ORDER denying as moot 23 Motion for Summary Judgment; granting 26 Motion to Dismiss Case and plaintiffs' complaint is dismissed; further the jury trial scheduled for the week of 519/14 is canceled. Signed by Honorable Robert T. Dawson on April 14, 2014. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
GARLAND and MANDI SCHLENKER,
Husband and Wife, and
KATHRYN DEJARNETTE
v.

PLAINTIFFS
CASE NO. 13-6018

HOLLY SELLS, STEVEN CRAIN,
CANE CREEK CONCRETE SERVICES,
INC.; COSTA BRAVA PROPERTY
OWNERS ASSOCIATION and SKY TAPP

DEFENDANTS

ORDER
Now before the Court is the Motion to Dismiss and Alternative
Motion to Remand to State Court and Alternative Motion to Remand
Claims Against Defendants Sells, Cane Creek Concrete Services,
Inc., Steven Crain and Costa Brava Property Owners’ Association to
State

Court

and

supporting

brief

(docs.

26-27),

Plaintiffs’

Response (doc. 29), and Separate Defendant Sky Tapp’s Response
(doc. 32).
In

their

motion,

Separate

Defendants

move

to

dismiss

Plaintiffs’ Complaint due to the lack of complete diversity of
citizenship between Plaintiffs and Defendants.

For their motion,

Separate Defendants attach a copy of requests for admissions
propounded by Plaintiffs to Defendants requesting Defendants to
admit that Plaintiff Dejarnette is a resident and citizen of
Arkansas. (Doc. 27-1). According to Separate Defendants, complete
diversity does not exist for federal jurisdiction as Defendants are

also citizens of Arkansas. In his response, Separate Defendant Sky
Tapp agrees.

In

their

response, Plaintiffs

fail

to

address

Defendants’ motion to dismiss for lack of diversity jurisdiction
except for a single sentence stating that [t]his Court has original
diversity jurisdiction.
Plaintiffs

filed

(Doc. 29, ¶9).
their

Complaint

on

February

14,

2013,

alleging this Court has diversity jurisdiction as the Schlenkers
are residents and citizens of Kansas, Ms. Dejarnette is a resident
and citizen of Louisiana, and Defendants are residents and citizens
of Arkansas.

Be that as it may, when jurisdictional allegations

are challenged, the plaintiff bears the burden of establishing
diversity

jurisdiction

by

a

preponderance

of

the

evidence.

Blakemore v. Missouri Pacific R. Co., 789 F.2d 616 (8th Cir.
1986)(citation omitted).

Plaintiffs failed to do so in this case.

Accordingly, Separate Defendants’ Motion to Dismiss (doc. 26)
is GRANTED, and Plaintiffs’ Complaint (doc. 1) is DISMISSED.

The

Motion for Summary Judgment (doc. 23) filed by Separate Defendant
Costa Brava Property Owners Association is DENIED AS MOOT, and the
jury trial scheduled for the week of May 19, 2014 is CANCELED.
IT IS SO ORDERED this 14th day of April, 2014.

/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge

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