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Kmart Corporation v. The Kroger Co.

United States District Court, Fifth Circuit

August 9, 2013

KMART CORPORATION, Plaintiff,
v.
THE KROGER CO.; E & A SOUTHEAST LIMITED PARTNERSHIP; FULTON IMPROVEMENTS, LLC; KANSAS CITY RAIL WAY COMPANY; and CITY OF CORINTH Defendants.

MEMORANDUM OPINION GRANTING CITY OF CORINTH'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

GLEN H. DAVIDSON, District Judge.

Presently before the Court is an amended motion to dismiss or, in the alternative, motion for summary judgment [85] filed by Defendant, City of Corinth.[1] Upon due consideration, the Court finds the motion should be granted.

A. Factual and Procedural Background

The Corinth, Mississippi Kroger store and Kmart store are neighboring tenants in the Fulton Crossing Shopping Center. In May of 2010, heavy rain pelted the Corinth area, causing nearby Elam Creek to flood. The Corinth Kmart store sustained extensive flood damage and was closed for repairs from the time of the May 2010 flood until February 2011, when the store reopened for business. The Corinth Kmart store then incurred further additional costs to prevent subsequent damage from another anticipated flood event.

Kmart Corporation ("Kmart") brings this action against Defendants The Kroger Co.; E & A Southeast Limited Partnership; Fulton Improvements, LLC; Kansas City Southern Railway Company; and the City of Corinth (the "City") to recover for the flood damage sustained by the Corinth Kinart store.[2] Kmart alleges, inter alia, that the neighboring building occupied by the Corinth Kroger store was initially constructed halfway in the floodplain and halfway in the floodway, and that in 2005, thirteen years after the Kroger store building was constructed, the Federal Emergency Management Agency ("FEMA") issued a Letter of Map Revision ("LOMR") that allowed the Kroger store to remain in the floodway after finding it was inadvertently included in the floodway. As the motion before the Court solely challenges Kmart's claims against the City, the Court will focus its attention on those claims.

Kmart alleges that the City (1) "improperly aided and supported" the issuance of the LOMR that allowed the Corinth Kroger store to remain in the floodway, Kmart's Compl. [1] ¶¶ 15, 41; and (2) contributed to the flood damage by operating a ten-acre landfill for dirt in the floodplain adjacent to the Kmart store that contributed to water displacement and a heightened water level in the vicinity of the Kmart store specifically, reducing the size of the floodplain and the area available for water displacement-and that "the displaced, rushing, and forceful water resulted in extensive flood damages to [the Corinth Kmart store], " id. ¶¶ 17, 43-44.

On August 2, 2010, Kmart sent a Notice of Claim to the City outlining the alleged damages incurred by its Corinth store, pursuant to Mississippi Code § 11-46-11. See Kmart's Notice of Claim [1] at 17-20. In a letter dated October 19, 2010, the City denied liability for Kmart's claims and further stated that the City was exempt from liability under Mississippi Code § 11-36-9(1a, b, d, & h). See City's Denial Letter [1] at 21. Kmart subsequently brought this action on May 2, 2011. On August 5, 2011, the City answered Kmart's complaint and included in its affirmative defenses the defense of immunity based on the discretionary function exemption of the Mississippi Tort Claims Act (the "MICA"), Mississippi Code § 11-46-9(1)(d). City's Answer [19] at 2.

On October 26, 2012, the City filed the present motion to dismiss or, in the alternative, motion for summary judgment [85], wherein it presents the following arguments in support of dismissal: (1) the state-law claims against the City are barred under the National Flood Insurance Act (the "NFIA"), 42 U.S.C. § 4001 et seq., as the NFIA does not create a state-law cause of action; (2) the state-law claims against the City are preempted by the NFIA, because state tort remedies would conflict with the "sole relief' provided by 42 U.S.C. § 4014, and this conflict would serve as an obstacle to the implementation of the NFIA; (3) Kmart failed to exhaust the administrative remedies set forth in 42 U.S.C. § 4014, as is required of a claim brought under the NFIA; (4) the Mississippi Code forecloses the state-law claims because (a) the state-law claims against the City are barred by the MTCA's one-year statute of limitations; (b) the City is immune from suit under Mississippi Code Section 11-46-9(1)(a) because the claims "aris[e] out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature"; (c) the City is immune from suit under Mississippi Code Section 11-46-9(1)(b) because the City exercised ordinary care; (d) the City is immune from suit under Mississippi Code Section 11-46-9(1)(d)'s discretionary function exception; and (e) the City is immune from suit on any claim arising out of its approval of the LOMR, if any, to the extent it was authorized to do so and acted in a way that was not malicious, arbitrary, or capricious, pursuant to Mississippi Code Section 11-46-9(1)(h); and (5) Kmart has failed to state a viable claim against the City. Because the Court finds the City immune under the MTCA's discretionary function exemption, the Court need not address the City's arguments for dismissal under the NFIA or under the other exemptions of the MTCA.

B. Rule 12(b)(1) Standard

A court must address a Rule 12(b)(1) jurisdictional challenge before addressing a challenge on the merits, as doing so "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). "Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims." In re PEVA Trailer Formaldehyde Prods. Lab. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998)). A claim is "properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate" the claim. Home Builders Ass Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (internal citation omitted).

"[A] factual attack under Rule 12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist." Arena v. Grayhar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980) (citations omitted)). In such a consideration, the court must take the well-pled factual allegations of the complaint as true and view them in the light most favorable to the plaintiff.... [U]nder Rule 12(b)(1), the court may find a plausible set of facts by considering any of the following: (1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Lane v. Hallihurton, 529 F.3d 548, 557 (5th Cir. 2008) (citations and internal quotation marks omitted). A court should grant the motion only if it seems certain that the plaintiff cannot prove any set of facts in support of his claim - that would entitle him to relief. Ramming, 281 F.3d at 161 (citing Home Builders Ass'n, 143 F.3d at 1010).

C. Rule 56 Summary Judgment Standard

"If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." FED. R. Civ. P. 12(d). Because in considering the present motion the Court has reviewed the parties' attached matters outside the pleadings which this Court shall not exclude, the motion shall be considered a motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See FED. R. CIV. P. 56(a); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, " Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.

The party moving for summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine dispute of material fact. Id. at 323, 106 S.Ct. 2548. Under Rule 56(a), the burden then shifts to the nonmovant to "go beyond the pleadings and by... affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001); Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995).

Where, as here, the parties dispute the facts, the Court must view the facts and draw reasonable inferences in the light most favorable to the plaintiff. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal citations omitted). "However, a nonmovant may not overcome the summary judgment standard with conclusional allegations, unsupported assertions, or presentation of only a scintilla of evidence." McClure v. Boles, 490 F.Appx. 666, 667 (5th Cir. 2012) (per curiam) (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).

D. Analysis and Discussion

After careful consideration, the Court finds that the City is entitled to immunity on Kmart's claims that the City (1) improperly aided and supported the issuance of the LOMR that allowed the Corinth Kroger store to remain in the floodway and (2) contributed to the flood damage by operating a ten-acre landfill for dirt adjacent to the Kmart store that contributed to water displacement and a heightened water level in the vicinity of the Kmart store. The City is entitled to immunity under the discretionary function exemption of the MICA, as Kmart's claims against the City involve an element of choice or judgment, and the choices or judgments involve social, economic, or political policy.

The MTCA provides the exclusive civil remedy against a governmental entity or its employee for acts or omissions which give rise to a claim or suit. Miss. CODE ANN. § 11-46-7(1). The MTCA waives sovereign immunity for tort claims for money damages against governmental entities and their employees. Dancy v. E. Miss. State Hosp., 944 So.2d 10, 15 (Miss. 2006). However, there are twenty-five specific exemptions from the general waiver of sovereign immunity. See Miss. CODE ANN. § 11-46-9(1). If any one of these exemptions applies, "the government is completely immune from the claims arising from the act or omission complained of." McAllister v. Desoto County, Miss, 470 F.Appx. 313, 321 (5th Cir. 2012) (quoting Knight v. Miss. Transp. Comm'n, 10 So.3d 962, 971 (Miss. Ct. App. 2009) (citations and internal quotation marks omitted)); see City of Jackson v. Doe, 68 So.3d 1285, 1289 (Miss. 2011) ("Because the City qualifies for immunity under subsection (d), the conditions for immunity under subsection (v) are irrelevant."); Estate of C'arr v. City of Ruleville, 5 So.3d 455, 458 (Miss. Ct. App. 2008) (finding that "[b]ecause the trial court [correctly determined that the City was entitled to the discretionary function immunity, " the court need not address "whether the City was immune under the police protection provision"). "The basis for the immunity given to government officials is in the inherent need to promote efficient and timely decision-making without fear of liability. This... works to encourage free participation and hinder fear that goes with risk-taking situations and the exercise of sound judgment." Urban Developers LLC v. City of Jackson, Miss., 468 F.3d 281, 306 (5th Cir. 2006) (quoting Miss. Dept of Transp. v. Cargile, 847 So.2d 258, 268 (Miss. 2003)).

One such exemption, the discretionary function exemption, is provided in Mississippi Code § 11-16-9(1)(d): "A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim... biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused." The Mississippi Supreme Court has stated that "[a] duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee." Miss, Transp. Comm'n v. Montgomery, 80 So.3d 789, 795 (Miss. 2012). Poor judgment in the exercise of discretionary authority is insufficient to pierce sovereign immunity. Sykes v. Grantham, 567 So.2d 200, 212 (Miss. 1990). A duty is ministerial, and thus not covered by the immunity provisions of the MTCA, "if it is positively imposed by law and required to be performed at a specific time and place, removing an officer's or entity's choice or judgment." Montgomery, 80 So.3d at 795.

"Whether [a particular] duty... is ministerial or discretionary hinges on which statute controls the [activity]." Miss. Dept of Transp. v. Nosef ex. rel. Cowart. 110 So.3d 317, 319 (Miss. 2013). Narrow, precise, and specific instructions in the applicable statute are more likely to render the activity a ministerial function for which the governmental entity is not immune. See id, at 320-21; Barr v. Hancock County, 950 So.2d 254, 258 (Miss. Ct. App. 2007). General instructions requiring choice or judgment, as well as the absence of an applicable statute, are more likely to render the activity a discretionary function for which the governmental entity is immune.

To determine whether a duty is discretionary, the Court must employ the two-part public-function test developed by the Mississippi Supreme Court:[3] (1) Determine whether the act involved "an element of choice or judgment."mzd (2) if so, determine "whether the choice involved social, economic. or political policy." Montgomery, 80 So.3d at 795 (holding that the public-function test is the determinative test of whether a governmental entity has perfoimed a discretionary act and overruling earlier cases that had applied the public-function test with an ordinary-care standard in determining whether the governmental entity performed a discretionary act); see also Jones v. MDOT, 744 So.2d 256, 260 (Miss. 1999) (citing United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (in establishing the test)).

The discretionary function exemption has been held to apply in a variety of situations. See, e.g., Dozier v. Hinds County, 354 F.Supp.2d 707, 714-15 (S.D.Miss. 2005) (county's decision on where and how to place road construction signs was discretionary function); Fortenberry v. City of Jackson, 71 So.3d 1196, 1200 (Miss. 2011) (city's operation and maintenance of its sewage system was discretionary function); City of Greenwood v. Provine, 108 So. 284, 286 (Miss. 1926), accord L & F Homes and Dev., LLC v. City of Gulfport, Miss., Civil Action No. 1:10cv387HSO-JMR, 2012 WL 2994073, at *5 (S.D.Miss. July 20, 2012) (considerable discretion is afforded to municipalities in rendering decisions on the provision of new water services); Little v. Miss. Dep't of Transp, ___ So.3d ___, 2012 WL 4785205, at *3 (Miss. Ct. App. 2012) (MDOT's "maintenance of the highway's right-of-way is a discretionary function"); Farris v. Miss. Tramp. Comm'n, 63 So.3d 1241, 1245 (Miss. Ct. App. 2011) (MDOT's failure to remove trees from the highway's right-of-way fell within the discretionary-function exemption).

In the case sub judice, the Court finds that the City's alleged actions (1) in aiding and support the issuance of the subject LOMR and (2) placing fill in the floodplain adjacent to the Kmart store involved an element of choice or judgment and that the choices involved social, economic, and/or political policy. Thus, the Court finds that the City is immune from suit on both claims against it under the discretionary function exemption.

1. The City's alleged action in aiding and supporting the issuance of the subject LOMR is a discretionary function, and thus, the City is immune from suit under the MTCA on this claim.

a. The City's alleged action in aiding and supporting the issuance of the subject LOMR involved an element of choice or judgment.

Kmart alleges that the City improperly aided and supported the issuance of the LOMR that allowed Kroger to remain in the floodway, with no scientific basis for doing so. Kmart's Mem. Br. Supp. Resp. Opp'n to City's Mot. [101] at 14-17. Kmart contends that the City had ministerial duties in this respect based on certain provisions of the NFIA, namely: (1) "a community shall notify the Administrator of the changes [in a community's base flood elevations affecting flooding conditions] by submitting technical or scientific data, " 44 C.F.R. § 65.3; and (2) a community "has a right to request changes to any of the information shown on an effective map that does not impact flood plain or flood plain delineations, " but that in order to achieve a change, the community shall submit "appropriate supporting documentation, " 44 C.F.R. § 65.4. Kmart maintains that although FEMA was found immune from suit for its flood mapping determinations, including those made in issuing the subject LOMR, the City is not immune from suit on the claim that the City improperly sought out a LOMR without scientific support. Kmart attempts to draw a distinction between the issuance of the LOMR itself and "the City's actions in seeking to change the flood elevation determination of FEMA, " and contends that Kmart is "challenging the very process used by the City to apply for the LOMR, as Kmart cannot find any existence of a scientific basis for the LOMR being presented to FEMA in the first place." See Kmart's Mem. Br. Supp. Resp. Opp'n to City's Mot. [1011 at 16-17 (emphasis in original). Thus, Kmart contends that the City is not entitled to immunity under the discretionary function exemption for its alleged actions in aiding and supporting the issuance of the subject LOMR.

The City contends that its decision to aid and support the issuance of the subject LOMR was a discretionary function which entitles it to sovereign immunity under the MTCA. The City argues that the above-referenced directives in the NFIA do not affirmatively require or prohibit the City's decision to assist in the LOMR request, but instead concern actions the community must take if it decides to request that FEMA make changes to Flood Insurance Rate Maps ("FIRMs"). The City further argues that the discretionary function exemption of the MTCA closely mirrors that of the Federal Tort Claims Act (the "FTCA"): just as Kmart's claims against FEMA were dismissed because the claims concerned flood mapping, a discretionary function exempted from liability under 28 U.S.C. § 2680(a) of the FICA, the City is also immune from suit on Krnart's claim against that the City improperly aided and supported the issuance of the subject LOMR. The City maintains that Kmart is suing the City for its decision to assist in the pursuit of the LOMR by providing a Community Acknowledgment Form, not for any actions or inactions concerning the above-referenced directives. The City further maintains that no evidence exists that the City ...


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