267 motionforsummaryjudgement e&a kmart combine

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

KMART CORPORATION, PLAINTIFF

VS. CIV. ACT. NO. 1:11CV103-GHD-DAS

THE KROGER CO., et al DEFENDANTS

E&A SOUTHEAST LIMITED PARTNERSHIP’S MOTION

FOR SUMMARY JUDGMENT

COMES NOW Defendant E&A Southeast Limited Partnership (“E&A”), by and through

its undersigned counsel, and files this, its Motion for Summary Judgment, and in support thereof,

would show unto the Court the following:

1. As set forth previously by this Court in its Memorandum Order Granting Kroger’s

Motion to Dismiss, “[i]n May 2010, flash floods hit portions of Arkansas, Kentucky, Tennessee

and northern Mississippi, resulting in extensive property damage and several fatalities.” See

Memorandum Order Granting Kroger’s Motion to Dismiss, attached hereto as Exhibit 1, page 1-

2.

2. On May 2, 2011, Kmart Corporation (“Plaintiff”) filed its Complaint against The

City of Corinth, FEMA, The Kroger Company, Kansas City Southern Railway Company, Fulton

Improvements, LLC, and E&A, seeking recovery for damages allegedly incurred as a result of

May 2010 flooding of Kmart store 4883 located in Corinth, Mississippi. See Complaint,

attached hereto as Collective Exhibit 2.

Case: 1:11-cv-00103-GHD-DAS Doc #: 267 Filed: 10/08/13 1 of 7 PageID #: 3287

3. Kmart Store 4883 and the Kroger store are located in the same shopping center.

E&A owned this shopping center from September 8, 1998 until December 14, 2007. See

Exhibit 2, at page 7, ¶ 29.

4. Kmart alleges that although its Corinth store is located in a floodplain, about one-

half of the adjacent Kroger store is in the floodplain and floodway. See Exhibit 2.

5. Kmart alleges that the Kroger store was improperly constructed in the regulatory

floodway and was then allowed to remain in the regulatory floodway after FEMA approved the

action by issuing a Letter of Map Revision (“LOMR”) in 2005, thirteen years after the Kroger

store’s construction. See Exhibit 2

6. In regards to Defendant E&A, Plaintiff alleges the following: (1) that the Kroger

store was improperly located in a floodway that existed at the time the store was constructed and

during E&A’s ownership of the property; (2) that E&A improperly aided and supported the

issuance of a LOMAR [sic] for the Kroger store from FEMA in 2005, which allowed the Kroger

store to remain in the floodway; (3) that E&A was aware of the LOMAR [sic] and knowingly

and improperly allowed its building to remain in the floodway; (4) that the Kroger store’s

presence in the floodway caused a displacement of water and a rise in the water level resulting in

the flood damage incurred at the neighboring Kmart store; and (5) that Kroger’s location within

the floodway also altered the water flow from standing water to a rushing, forceful water flow

that resulted in flood damage to the Kmart store.1 See Complaint, Ex. 2, ¶¶ 29-35.

7. Defendant E&A did not own the shopping center at the time it was built, nor did

E&A own the property at the time of the flooding event. See Complaint, Ex. 2, at page 7, ¶ 29.

1 Plaintiff initially sought damages arising out of a flooding event on April 27, 2011, but Plaintiff subsequently

withdrew its allegations stemming from the 2011 flood.


8. Kmart has no cause of action against E&A for alleged participation in the

issuance of the LOMR. The cause of action is preempted under the NFIA. See Memorandum

Order Granting Kroger’s Motion to Dismiss, Ex. 1, at page 7.

9. Kmart’s allegations challenging the issuance of the LOMR fall squarely within

the ambit of the NFIA. See, e.g., Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 987-89

(8th

Cir. 20110); Coal. for a Sustainable Delta v. FEMA, 812 F. Supp. 2d 1089, 1102 (E.D. Cal.

2011). Id.

10. Similar to the Court’s finding in granting the City of Corinth’s motion to dismiss,

the record is devoid of any evidence that E&A improperly sought a LOMR that allowed the

Kroger store to remain in the floodway. “Thus, this claim is also dismissible on its merits as a

conclusory allegation unsupported by the record.” See Memorandum Opinion Granting City of

Corinth’s Motion to Dismiss, attached hereto as Collective Exhibit 6, page 22.

11. Any and all other claims alleged by Plaintiff against Defendant E&A are barred

by the three year statute of limitations pursuant to Miss. Code Ann. § 15-1-49 (1995).

12. No exception is availing to the Plaintiff to toll the statute of limitations.

13. Plaintiff cannot show that the Kroger store was actually constructed within the

floodway. Deposition of Plaintiff’s Expert John Krewson, attached hereto as Collective Exhibit

9, at 241:19-25; 242:1-2.

14. Plaintiff cannot show that the Kroger store’s presence in the floodway caused a

displacement of water and a rise in the water level, resulting in the flood damage incurred at the

neighboring Store 4883 on May 10, 2010.

15. The proximate cause of the May 2010 flooding was an “Act of God” and was thus

unforeseeable.


16. The flood that occurred in Corinth in May 2010 surpassed one hundred year flood

ranges. See Monohan report, Ex. 13 at 1.

17. In support of its Motion, E&A relies upon the pleadings filed in this action, its

supporting memorandum, and the following exhibits:

a. Exhibit 1: Memorandum Order Granting Kroger’s Motion to Dismiss

b. Exhibit 2: Complaint

c. Exhibit 3: Deposition of E&A

d. Exhibit 4: Letter of Map Revision – Floodway (“LOMR”)

e. Exhibit 5: Kmart Lease Agreement

f. Exhibit 6: Memorandum Opinion Granting City of Corinth’s MTD

g. Exhibit 7: Deposition of Kmart – Dale Menendez

h. Exhibit 8: Elevation Certificate

i. Exhibit 9: Deposition of John Krewson

j. Exhibit 10: Report of Eley

k. Exhibit 11: Certificates of Occupancy

l. Exhibit 12: Community Acknowledgement Form

m. Exhibit 13: Monohan Report

n. Exhibit 14: REMA revalidation letter

o. Exhibit 15: Order Denying Motion

p. Exhibit 16: Kmart Documents

WHEREFORE, Defendant E&A respectfully requests that this Court enter summary

judgment in favor of E&A and against Plaintiffs, as well as any Cross-Plaintiffs and Third-Party

Plaintiffs in the above referenced case.


Date: October 8, 2013

Respectfully submitted,

E&A SOUTHEAST LIMITED PARTNERSHIP

BY:

/s/ Mary Clift Abdalla MARY CLIFT ABDALLA (Miss. Bar No. 102734)

WALTER GARNER WATKINS, III (Miss. Bar No. 100314)

WALTER GARNER WATKINS, JR. (Miss. Bar No. 6988)

Forman Perry Watkins Krutz & Tardy LLP

200 South Lamar Street, Suite 100

Jackson, MS 39201

Telephone: (601) 973-5967

CERTIFICATE OF SERVICE

I, the undersigned Mary Clift Abdalla, one of the attorneys for E & A, hereby certify that

I have this day served electronically using the ECF system, a true and correct copy of the

foregoing document to the following:

Ryan O. Lumainis

James M. Garner

John T. Balhoff, II

SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC

909 Poydras Street, 28th Floor

New Orleans, LA 70112

Email: [email protected]

Edley H. Jones III

David A. Norris

Stephen F. Schelver

McGLINCHEY STAFFORD, PLLC

City Center South, Suite 1100

200 South Lamar Street (Zip - 39201)

Post Office Drawer 22949

Jackson, Mississippi 39225-2949


Telephone: (769) 524-2300

Facsimile: (769) 524-2333

Email: [email protected]; [email protected]

[email protected]

Gerald Haggart Jacks

JACKS, ADAMS & NORQUIST, P.A.

P. O. Box 1209

Cleveland, MS 38732-1209


Jamie Ferguson Jacks

JACKS, ADAMS & NORQUIST, P.A.

P. O. Box 1209

Cleveland, MS 38732-1209


Charles E. Ross

WISE, CARTER, CHILD & CARAWAY

P. O. Box 651

Jackson, MS 39205-0651


Terry Dwayne Little

DANIEL, COKER, HORTON & BELL - Oxford

P.O. Box 1396

Oxford, MS 38655


Wilton V. Byars , III

DANIEL, COKER, HORTON & BELL

P.O. Box 1396

Oxford, MS 38655


Linda F. Cooper

WISE CARTER CHILD & CARAWAY, P.A.

P.O. Box 651

Jackson, MS 39205-0651

THIS, the 8th day of October 2013.

/s/ Mary Clift Abdalla

Mary Clift Abdalla


mailto:[email protected]



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