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Kmart Corporation v. The Kroger Co.

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

January 23, 2014



GLEN H. DAVIDSON, Senior District Judge.

Presently before the Court is Defendant E & A Southeast Limited Partnership's motion for summary judgment [267]. 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. and E & A Southeast Limited Partnership ("E & A") to recover for the flood damage sustained by the Corinth Kmart store allegedly caused by actions and omissions of Defendants.[1] 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 removed the Kroger store from the regulatory flood way after finding it was inadvertently included in the flood way.

On July 25, 2013, Kmart filed a motion for leave to file a proposed amended report of its retained expert, John R. Krewson, to recalculate the estimated water level to correct prior inaccuracies in Krewson's initial report, and in so doing, to change Kmart's theory of the case. On September 27, 2013, the Court entered an Order [243] stating that it would consider a limited amendment of only mathematical errors to the Krewson report. Kmart filed another motion for leave [271] to file a newly proposed amended Krewson report and attached the same for the Court's consideration. After careful consideration of the newly proposed amended report, the Court denied Kmart's request to amend the Krewson report. Accordingly, when this memorandum opinion references the Krewson report, the opinion refers to Krewson's initial report, unless otherwise indicated.

On October 8, 2013, E & A filed the present motion for summary judgment [267]. Kmart has filed a response, and E & A has filed a reply. The matter is now ripe for review. As the present motion concerns Kmart's claims against E & A, the Court will focus its attention on those claims.

B. Summary Judgment Standard

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 oaf 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 (internal quotation marks omitted). Accord 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 nonmovant. 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)).

C. Analysis and Discussion

In its motion for summary judgment [267], E & A argues that Kmart's claims against it should be dismissed on the following grounds: (1) "[a]ny allegation stemming from the issuance of the LOMR falls squarely within the ambit of the NFIA"; (2) "[t]he statute of limitations has run on all claims against [E & A]"; (3) the Kroger store is not located within a floodway; (4) Kmart cannot show that the presence of the Kroger store caused any damage to Kmart during the subject flood; and (5) the proximate cause of the subject flood was an Act of God and was thus unforeseeable. E & A Mem. Br. Supp. MSJ [268] at 4-16.

At the outset, the Court addresses E & A's argument that Kmart's claims are barred by the applicable statute of limitations. The parties agree that Kmart's claims against E & A are subject to the three-year statute of limitation under Mississippi Code ยง 15-1-49. That statute provides in pertinent part that the action "shall be commenced within three (3) ...

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