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Jackson v. City of Leland

United States District Court, N.D. Mississippi, Greenville Division

April 30, 2019

KWAITEL JACKSON PLAINTIFF
v.
CITY OF LELAND, LELAND POLICE DEPARTMENT, MAYOR KENNY THOMAS, CHIEF BILLY BARBER, and OFFICER CORY WEATHERSPOON DEFENDANTS

          ORDER AND MEMORANDUM OPINION

          SHARION AYCOCK, UNITED STATES DISTRICT COURT JUDGE.

         Kwaitel Jackson originally filed his Complaint [2] in the Circuit Court of Washington County, Mississippi on April 23, 2018. In his Complaint [2], Jackson alleges that Officer Corey Weatherspoon unlawfully assaulted him, and asserts claims for negligence, negligent hiring and retention, negligent supervision and training, gross negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Defendants removed the case to this Court on August 31, 2018 premising jurisdiction on a federal question, primarily a claim for relief under 42 U.S.C. §1983 for violations under the Fourth and Fourteenth Amendments to the United States Constitution. See Notice of Removal [1].

         After removal, the Defendants moved for dismissal and qualified immunity on all of Jackson's claims. Officer Weatherspoon filed a Motion for Judgment on the Pleadings and for Qualified Immunity [6]. The Municipal Defendants, Mayor Thomas, Police Chief Barber, the City of Leland, and the Leland Police Department, filed a Motion to Dismiss [8] Jackson's state law claims, and a separate Motion to Dismiss [10] Jackson's Federal claims against them.

         In response, Jackson filed a Motion to Remand [19] the case back to the Circuit Court. The Defendants' filed a Response [23] in opposition to remand, to which Jackson failed to reply. With all the deadlines now passed, these issues are ripe for review. See L. U. Civ. R. 7(b).

         The Court will take up the remand issue first. See McCasland v. City of Castroville, Tex., 478 Fed.Appx. 860 (5th Cir. 2012) (per curiam) (citing Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011); Morgan v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994)).

         Factual and Procedural Background

         In his Complaint [2], Plaintiff Jackson alleges the following facts:

On or about August 2016, Plaintiff Kwaitel Jackson was patronizing McCray's Grocer, aka Fox Store, in Leland Mississippi when he was bombarded by Officer Corey Weatherspoon. Officer Weatherspoon unlawfully assaulted Jackson by striking him to the eye and body with brass knuckles and slamming him to the concrete floor. At the time of this unprovoked, unlawful assault, Plaintiff Jackson was not breaking any laws and there was no warrant for his arrest.

         Jackson then goes on to describe his damages, and as noted above, asserts the following six claims: negligence, negligent hiring and retention, negligent supervision and training, gross negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.

         Plaintiff Jackson argues that the Court should remand this case back to the Circuit Court because the Defendants did not remove the case within the 30-day time limit required by the removal statute, 28 U.S.C. §1446(b)(1). The relevant part of the statute states:

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. §1446(b)(1). It is undisputed in this case the Defendants did not remove the case within 30 days of service.

         The Defendants argue that there was no basis for federal jurisdiction present on the face of the Complaint [2], and that Jackson did not reference the Constitution, any constitutional violations, or any federal question. According to the Defendants, they were not aware of any constitutional claims, or any basis for federal jurisdiction, until Jackson served them with his Supplemental Response [1-3] to the Motion to Dismiss they filed in the Circuit Court. Jackson filed his Supplemental Response [1-3] in the Circuit Court on August 29, 2018. The Defendants removed the case to this Court two days later, on August 31, 2018, and rely on 28 U.S.C. §1446(b)(3) to support their argument that removal was timely. The relevant part of that code section states:

. . . if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ...

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