United States District Court, N.D. Mississippi, Aberdeen Division
KALESHIA MCINTOSH, ex rel. S.A.O., a minor PLAINTIFF
SHAUNA R. ASHLEY and CITY OF OKOLONA DEFENDANTS
SHARION AYCOCK, UNITED STATES DISTRICT COURT JUDGE
McIntosh initiated this suit on behalf of S.A.O., a minor, in
the Circuit Court of Chickasaw County, Mississippi, on
January 26, 2018, against Shauna Ashley and City of Okolona.
The City of Okolona, a defendant, removed the case on March
29, 2018, pursuant to 28 U.S.C. §§ 1331, 1367(a),
and 1441. See Notice of Removal . Presently
before the Court is McIntosh's Motion to Remand 
asking the Court to remand the case back to the Circuit
and Procedural Background
April 9, 2017, Shauna Ashley, an employee of the Okolona Fire
Department, collided into the Plaintiff's car while
driving a city-owned fire truck. This accident caused damage
to the structure of the car as well as bodily injury to
S.A.O., the minor. According to the Plaintiff, while driving
East on West Main Street, Ashley proceeded to reverse the
fire truck without visibility of oncoming traffic or
pedestrians. At the time of the accident, Ashley was not
responding to an emergency.
Plaintiff claims that while driving the fire truck, Ashley
had not completed the requisite training needed before
operating a 2004 International Pierce fire truck. The
Plaintiff filed a Complaint  alleging that Ashley's
negligence is the proximate cause of her injuries. In
addition, the Plaintiff argues that Ashley is liable for
negligence per se, a violation of 42 U.S.C. § 1983, and
a violation of the Fourteenth Amendment of the United States
Constitution. The Plaintiff also files a claim against the
Okolona Fire Department for negligent entrustment, negligence
per se, violation of 42 U.S.C. § 1983, and a violation
of the Fourteenth Amendment of the United States
Constitution. The Plaintiff now request remand and the
Judiciary Act of 1789 provides that “any civil action
brought in a State court of which the districts of the United
States have original jurisdiction, may be removed by the
defendant, to the district court of the United States for the
district and division embracing the place where such action
is pending.” 28 U.S.C. § 1441(a). Federal courts
are courts of limited jurisdiction. Epps v.
Bexar-Medina-Atascosa Counties Water Improvement Dist. No.
1, 665 F.2d 594, 595 (5th Cir. 1982). Diversity
jurisdiction exists “where the matter in controversy
exceeds the sum or value of $75, 000.00, exclusive of
interest and cost, and is between . . . citizens of different
states.” 28 U.S.C. § 1332(a); Addo v. Globe
Life and Accidents Ins. Co., 230 F.3d 759, 761 (5th Cir.
2000). After removal of a case, a plaintiff may move for
remand, and “[i]f it appears that the district court
lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c).
motion to remand has been filed, the burden is on the
removing party to establish that federal jurisdiction exists.
De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th
Cir. 1995). The Fifth Circuit has held that the removal
statutes are to be construed “strictly against removal
and for remand.” Eastus v. Blue Bell Creameries,
L.P., 97 F.3d 100, 106 (5th Cir. 1996); Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100, 108-9, 61 S.Ct.
868, 85 L.Ed. 1214 (1941).
to Section 1331 of the United States Code, “district
courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C.A. § 1331. In her
complaint, the Plaintiff alleges a violation of Section 1983
and the Fourteenth Amendment of the United States
Constitution in addition to state law claims of negligence,
negligent entrustment, and negligence per se.
Plaintiff argues that because the Section 1983 claim is not
“separate and independent”, removal is not
proper. Caselaw and precedent proves otherwise. Section 1983
creates a right of action for cases arising under the laws of
the United States, for which this Court has original
jurisdiction. Pace v. Hunt, 847 F.Supp. 508, 509
(S.D.Miss. March 23, 1994). In addition, both State and
Federal courts share concurrent jurisdiction over Section
1983 actions. The Fifth Circuit in Flores v. Edinburg
Consol. Independent School Dist., made clear that
“it is unquestioned that a § 1983 claim can be
advanced in a state court suit, as state courts exercise
concurrent jurisdiction with federal courts over such
claims.” 741 F.2d 773 (5th Cir. 1984) (citing
Kutzik v. Young, 730 F.2d 149, 152 (4th Cir. 1984)).
removal, “unless there is an express declaration by
Congress to the contrary, all types of civil actions, in
which there is concurrent original jurisdiction in both
federal and state courts, are removable.” Baldwin
v. Sears, Roebuck and Co., 667 F.2d 458, 460 (5th Cir.
1982). Because Section 1983 is within the original concurrent
jurisdiction of the Court, jurisdiction is proper.
addition to the federal claims asserted, the Plaintiff sues
the Defendant for three state law claims: negligence,
negligent entrustment, and negligent per se.
“Supplemental Jurisdiction exists whenever there is a
claim arising under the Constitution, the laws of the United
States, and Treaties made . . . and the relationship between
the claim and the state claim permits the conclusion that the
entire action before the court comprises but one
constitutional case.” United Mine Workers of
America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130,
1138, 16 L.Ed.2d 218 (1966); citing Levering &
Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77
L.Ed. 1062 (1933). As such, the state and federal claims must
derive from a common nucleus of operative fact. Id.
The single set of facts alleged by the Plaintiff in her
Complaint  gives rise to both the state law claims and the
federal claims. Therefore, the Court may choose to exert its
supplement jurisdiction over the state law claims asserted in
the Complaint . Although the Court may, in its discretion,
refuse to exercise supplemental jurisdiction in the event the
claims raise a novel or complex issue of state law, the Court
finds it imperative to adjudicate this issue considering the
federal claims cited by the Plaintiff's Complaint . 28
U.S.C. § 1367(c)(1) and (2) (2018).
Plaintiff argues that the Court should remand the case
because removal is defeated by a procedural defect-the
failure of co-defendant, Shauna Ashley, to join and consent
to removal. Section 1446 prescribes that a defendant may
remove a case thirty days after receipt of service and
summons. 28 U.S.C. § 1441 (b)(2)(B). In addition, a
co-defendant must join and consent to said removal within
thirty days following receipt of service of process.
Id. Here, the Notice of Removal  was filed on
March 29, 2018. Shauna Ashley, the co-defendant, was served
with process ten days later, on April 8, 2018. Ashley filed
joinder and consent  to the Notice of ...