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Kmart Corporation v. The Kroger Co.

United States District Court, Fifth Circuit

January 28, 2014

THE KROGER CO., Defendant.


GLEN H. DAVIDSON, Senior District Judge.

Presently before the Court is Defendant The Kroger Co.'s motion for summary judgment [269]. 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 Defendant The Kroger Co. ("Kroger") to recover for the flood damage sustained by the Corinth Kmart store allegedly caused by Kroger's actions and omissions.[1] Kmart alleges that the neighboring building occupied by the Corinth Kroger store was initially constructed halfway in the floodplain and halfway in the floodway. Kmart's Compel. [1] ¶ 15. Kmart further alleges that "[t]he Kroger store should have been leveled, but in 2005, the Kroger store was permitted to remain in the floodway" by a Letter of Map Revision ("LOMR") issued by the Federal Emergency Management Agency ("FEMA") and secured with the involvement of Kroger, among others. Id. Kmart avers that "Kroger's presence in the floodway caused a displacement of water and a rise in the water level, resulting in the flood damage" sustained by Kmart. Id. ¶ 16.

After answering the complaint, Kroger filed a motion for judgment on the pleadings [66] on September 26, 2012. The Court subsequently entered an Order [207] and memorandum opinion [208] granting the motion insofar as it pertained to Kmart's specific allegations that the LOMR was "improperly granted" and "improperly allowed the Kroger store to remain in the floodway, " finding that those allegations could only be tenable against FEMA, which issued the LOMR but had been dismissed from the suit on immunity grounds. Thus, the Court found that Kmart was not entitled to offer evidence to prove those allegations. However, the Court denied the motion insofar as it pertained to Kmart's common-law negligence claim, finding that those allegations survived the early challenge under Rule 12(c) of the Federal Rules of Civil Procedure and that Kmart was entitled to offer evidence to prove its allegations of negligence.[2]

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 10, 2013, Kroger filed the present motion for summary judgment [269]. Kmart has filed a response, and Kroger has filed a reply. The matter is now ripe for review. The present motion for summary judgment concerns Kmart's negligence claim against Kroger, the sole remaining claim in the case sub judice.

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 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 (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.App'x 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 [269], Kroger argues that Kmart's negligence claim against it should be dismissed on the following grounds: (1) Kmart can prove no act or omission of Kroger that will support a negligence claim; (2) Kmart cannot prove that Kroger had notice that its Corinth store was previously located in a floodway; (3) Kmart cannot show "but-for" causation as to Kroger; (4) Kmart's negligence claim against Kroger fails, because the terms of Kroger's lease prevented Kroger from "leveling" the building leased by it; (5) Kmart has no competent evidence that the Kroger store caused flood damage to Kmart; and (6) Kroger cannot be held liable for the location of the building, ...

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