Kmart Corporation v. The Kroger Co. et al
Filing
385
MEMORANDUM OPINION re 384 Order on Motion to Alter Judgment. Signed by Senior Judge Glen H. Davidson on 6/9/2014. (dlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
PLAINTIFF
KMART CORPORATION
CIVIL ACTION NO.1 :11-cv-00l03-GHD-DAS
v.
DEFENDANT
FULTON IMPROVEMENTS, LLC
MEMORANDUM OPINION DENYING
PLAINTIFF'S MOTION TO AMEND OR ALTER JUDGMENT
Presently before the Court is Plaintiff Kmart Corporation's motion to amend or alter [373]
the Court's judgment granting summary judgment to Defendant Fulton Improvements, LLC, see
Ct.'s Order [354] & Mem. Op. [355] Granting Fulton's MSJ. PlaintiffKmart Corporation files
this motion pursuant to Rule 59 ofthe Federal Rules of Civil Procedure. Upon due consideration,
the Court finds that the motion to amend or alter judgment [373] is not well taken and should be
denied.
In May of 2010, flash floods hit portions of Arkansas, Kentucky, Tennessee, and north
Mississippi, reSUlting in extensive property damage and several fatalities. This case concerns the
flood damage sustained by a Kmart store located at 118 Highway 72 in Corinth, Mississippi. On
May 2, 2011, Plaintiff Kmart Corporation ("Kmart") commenced this suit against the Federal
Emergency Management Agency ("FEMA"), the City of Corinth, Fulton Improvements, LLC
("Fulton"), Kansas City Southern Railway Company, E & A Southeast Limited Partnership, and
The Kroger Co. The Court dismissed FEMA and the City of Corinth from the case on immunity
grounds.
The Court dismissed Fulton, Kansas City Southern Railway Company, E & A
Southeast Limited Partnership, and The Kroger Co. on summary judgment. In the present motion
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to alter or amend judgment [373J, Kmart challenges the Court's grant of summary judgment to
Fulton only.
In its complaint, Kmart asserted negligence and breach-of-contract claims against Fulton,
the Kmart store's landlord at the time of the flood damage. Kmart alleged that Fulton was
responsible for the flood damage per the terms of the lease agreement between the Kmart store and
Fulton, and that Fulton had failed to take flood-protection measures to protect the Kmart store
from the flood damage it sustained. On October 2, 2013, Fulton filed a motion for summary
judgment [248J wherein it argued that Kmart's negligence and breach-of-contract claims failed as
a matter of law and should be dismissed. Upon careful review of the motion papers, attached
documentation, and authorities, the Court granted Fulton's motion for summary judgment, finding
that under Mississippi law, Fulton's failure to take the particular flood-protection measures Kmart
now suggests it should have, does not amount to breach, because Kmart failed to raise a fact issue
that Fulton had notice that such measures were necessary. Kmart challenges this ruling, arguing
that the Court incorrectly found that notice was required in order for there to be breach. As the
Court stated in its memorandum opinion [355J granting Fulton's motion for summary judgment, in
Mississippi, the landlord must have actual or constructive knowledge of a maintenance issue or
defect, as well as a reasonable opportunity to make repairs. Turnipseed v. McGee, 109 So. 3d
551, 554 (Miss. 1959); see also Dulin v. Sowell, 919 So. 2d 1010, 10l2-1013 (Miss. Ct. App.
2005). A covenant to repair in a lease agreement does not absolve the notice requirement. See
Woljfv. Mauceli, 114 So. 3d 845 (Miss. 1959). For all these reasons, Kmart's argument in this
respect is not well taken.
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Kmart further argues that it raised a fact issue as to whether Fulton knew or should have
known of the need for flood protection around the Kmart store. However, the Court stands by its
holding and reasoning expressed in the memorandum opinion [355] that Kmart failed to raise a
fact issue to sustain its case past summary judgment. It appears to this Court that Kmart is now
attempting to point to instances in the record that it contends would raise a fact issue with respect
to notice. "Rule 59(e) cannot be used to rehash the evidence 'or make arguments that could have
been offered or raised before the entry ofjudgment.'" Winding v. Geo Grp., Inc., 405 F. App'x
938,939 (5th CiT. 2010) (per curiam) (quoting Templet v. HydroChem Inc., 367 F.3d 473, 478-79
(5th Cir. 2004ยป. Kmart's arguments in its motion to alter judgment do not "demonstrate any
grounds for relief under Rule 59(e), such as manifest error of law or fact or the discovery of new
evidence." Id.; see Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989). Therefore,
Kmart's motion for alter must be denied.
For all the foregoing reasons, Kmart's motion to amend or alter judgment [373] is
DENIED.
A separate order in accordance with this opinion will issue this day.
.J1?
SENIOR JUDGE
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