Fill and Sign the Mississippi Reconsider 497315031 Form

IN THE UNITED STATES DISTRICT COURT FOR THE       DISTRICT OF MISSISSIPPI,       DIVISION       PLAINTIFF V. CIVIL ACTION NO.:             and       DEFENDANTS MOTION TO RECONSIDER ORDER DENYING REMAND Plaintiff,       , by and through undersigned counsel, hereby files this his/her Motion to Reconsider Order Denying Remand, and in support hereof shows this Court as follows: 1. This Court did not address the issue raised by Plaintiff in his/her Motion to Remand and his/her Rebuttal of whether The City of       should have joined in the Notice of Removal. The City of       is required to join in the Notice of Removal. It did not. The failure of the City of       to join in the Notice of Removal renders the Removal ineffective. The case, Spillers v. Tillman , 959 F.Supp. 364 (S.D. Miss. 1997), clearly establishes that all defendants must join in the notice of removal within the thirty day period provided under 28 U.S.C. § 1446, regardless of the basis for said federal jurisdiction. Spillers also provides that the filing of an Answer in federal court does not satisfy the requirement that all defendants actually join in the removal. The City of       , Mississippi, failed to join in       ’s Notice of Removal; accordingly, the Notice of Removal is defective and does not comply with the requirements of 28 U.S.C. § 1446. This case should be remanded to state court as requested in Plaintiff's Motion to Remand. 2. This Court unilaterally determined that the City of       is immune from suit based upon Miss. Code Ann. § 11-46-9(p) which allegedly provides immunity to public entities for activities related to the construction and maintenance of drainage canals. A careful reading of Plaintiff's complaint shows that Plaintiff has asserted a cause of action against The City of       based upon its combined and concurring negligence in repeatedly       along       and in       for       along the       , after having been instructed on more then one occasion to refrain from doing so. Further, Plaintiff's claim includes an allegation, factual in nature, whereby The City of       caused or allowed a City-owned vehicle, equipped with a       , to be parked directly adjacent to Plaintiff's property while       for       onto and across Plaintiff's property and indirectly into his/her residence. Obviously these claims have nothing to do with the ditch which runs along the rear of Plaintiff's property, meaning Miss. Code Ann. § 11-46-9(p) does not apply. The City of       is not immune from suit in this circumstance and was, therefore, not fraudulently joined in this action by Plaintiff. There being a viable cause of action against the City of       , there is not complete diversity and this Court may not exercise jurisdiction over this matter. This matter should be remanded to the Circuit Court for the       Judicial District of       County, Mississippi. WHEREFORE, PREMISES CONSIDERED, this Court should reconsider its Order Denying Remand and remand this case to the Circuit Court for the       Judicial District of       County, assessing the costs of the proceedings in this Court to Defendants jointly and severally, including a reasonable attorney's fee. Plaintiff moves this Court to retain jurisdiction of this matter solely for the purpose of determining costs and a reasonable attorney's fee to be levied, jointly and severally, against Defendants. Respectfully Submitted,       BY: ______________________________________       Of counsel:                         Telephone:       MSB #       CERTIFICATE OF SERVICE This is to certify that,       , I have this day served a true and correct copy of the foregoing via U.S. Mail, postage pre-paid and properly addressed to:       This the       day of       ,       . ________________________________