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IN THE UNITED STATES DISTRICT COURT FOR THE       DISTRICT OF MISSISSIPPI,       DIVISION       PLAINTIFF V. CIVIL ACTION NO.:             and       DEFENDANTS REBUTTAL TO DEFENDANTS' RESPONSES TO PLAINTIFF'S MOTION TO REMAND Plaintiff,       , by and through undersigned counsel, hereby files this his/her rebuttal to the Defendants' response to Plaintiff's Motion to Remand, and in support hereof shows this Court as follows: 1. The City of       , Mississippi, mistakenly asserts that it is not required to join in the Defendant's,       ’s, Notice of Removal, an assertion it makes without citing to any authority whatsoever; however, 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. The City of       , Mississippi, entered its appearance in state court through the filing of a Notice of Service of Discovery and through the service upon Plaintiff of Discovery, both of which predate the date of Defendant,       ’s, Notice of Removal. Attached hereto as composite Exhibit "       " is a true and accurate copy of the City of       , Mississippi's Notice of Service of Discovery served upon Plaintiff. Said entry of appearance constitutes a waiver by the City of       , Mississippi, of any right to remove this case to federal court. 3. The City of       , Mississippi, makes much of its assertion that it is immune pursuant to Mississippi statutes. Interestingly it asks this federal court to make determinations of state law to support its contention that it is immune from suit in this circumstance and therefore an improperly joined defendant. Obviously, the City of       , Mississippi, cannot have it both ways. The City's response to Plaintiff's Motion to Remand begs the question: Why did the City fail to join in the other defendant's notice of removal, if it believes it is immune from suit? 4. Assuming for the sake of argument that this court is called upon to make determinations of the City of       , Mississippi's immunity under state law, Plaintiff would show that it has substantial arguable bases for establishing liability upon the City, including but not limited to the following: a. The City of       , Mississippi, has been sued for its own, separate tortuous conduct which was of a continuing nature through       ,       . Said conduct constituted the       , rather than       which both defendants stress to this Court. Apparently it has been lost on both defendants that the City of       , Mississippi, has been sued for its own acts of negligence which have combined and concurred with Defendant,       ’s acts of negligence to proximately cause and contribute to Plaintiff's injuries and damages. b. The City of       , Mississippi, in its Response to Plaintiff's Motion to Remand weakly asserts that no liability attaches to it based on the allegations of the complaint, without citing authority in support thereof. The case, Jernigan v. Ashland Oil, Inc. , 989 F.2d 812 (5th Cir. 1993); cert. den. , 510 U.S. 868; 114 S.Ct. 192; 126 L.Ed.2d 150 (1993), holds that, in determining whether the joinder of parties to an action was improper, the burden rests upon the removing party to establish that the plaintiff has no possibility of recovery against the in-state defendant. The City of       , Mississippi has presented no supporting case law, nor has it presented any facts to this Court which constitutes evidence necessary to meet their obligation under Jernigan . On the contrary, there is no such evidence nor facts which would support the City's conclusory allegations, as there exists a valid claim for negligence against the City under the facts presented in Plaintiff's complaint; namely, that the City's own, independent acts of negligence combined and conspired with the negligence of       to proximately cause Plaintiff's injuries and damages. Further, the City of       Mississippi, is not immune from suit wherein the allegations arise from the City's non-discretionary activity of       (which is an proprietary function of the City's government). 5. The arguments cited in paragraph 1 above apply equally to the response of Defendant,       ’s Response to Plaintiff's Motion to Remand. 6. In its response to Plaintiff's Motion to Remand,       , asserts that the City of       , Mississippi, is immune from suit pursuant to Miss. Code Ann. § 11-46-9(p) (1972), as amended, and therefore is not a proper party to this litigation. Once again, said conclusory allegation is subject to debate and interpretation.       ’s reliance upon § 11-46-9(p), is misplaced in that it fails to recognize that the City of       engaged in       which has absolutely nothing to do with "       ." See, Plaintiff's Complaint at paragraphs 6, 7. 7.       also asserts that the one year statute of limitation set forth in Miss. Code Ann. § 11-46-11(3) (1972), as amended, has expired as to Plaintiff's claims against the City of       , Mississippi; however, in its Notice of Removal,       the City's receipt of Plaintiff's notification of his/her claim to Mayor       dated             ,       .       correctly points out that Plaintiff served said notice in accordance with § 11-46-11(2). Said notification corresponds to the clearly asserted claim contained in Plaintiff's Complaint that the City of       caused chemicals to be sprayed on and around Plaintiff's residence, as recently as             ,       . Obviously, Plaintiff has asserted a timely cause of action for said spraying and as contemplated by the strictures of § 11-46-11(1),(2) and (3). Further, said notification mirrors the notification provided by counsel for Plaintiff to Mayor       dated             ,       , a true and accurate copy of which is attached hereto as Exhibit "       ." Attached hereto as Exhibit "       " is Plaintiff's affidavit which provides facts upon which Plaintiff shall establish that the City of       failed to follow the instructions of its own Councilmen with respect to the discontinuance of spraying at or near Plaintiff's residence, said action constituting a continuous, tortuous and proximate cause of Plaintiff's injuries and damages for which recovery may issue. WHEREFORE, PREMISES CONSIDERED, this Court should remand this case to the Circuit Court of Hinds 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, _______________________________________       Attorney for       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       ,       . ________________________________