Kmart Corp. v. Kroger Co.

• Decision Date: 09 August 2013
• Docket Number: Civil Action No. 1:11–CV–00103–GHD–DAS.
• Citation: 963 F.Supp.2d 605
• Court: U.S. District Court — Northern District of Mississippi
• Parties: KMART CORPORATION, Plaintiff v. The KROGER CO.; E & A Southeast Limited Partnership; Fulton Improvements, LLC; Kansas City Railway Company; and City of Corinth, Defendants.

963 F.Supp.2d 605

KMART CORPORATION, Plaintiff

v.The KROGER CO.; E & A Southeast Limited Partnership; Fulton Improvements, LLC; Kansas City Railway Company; and City of Corinth, Defendants.

Civil Action No. 1:11–CV–00103–GHD–DAS.

United States District Court,

N.D. Mississippi,

Aberdeen Division.

Aug. 9, 2013.

Ryan O. Luminais, Sher Garner Cahill Richter Klein & Hilbert, LLC, New Orleans, LA, for Plaintiff.

David Aaron Norris, Edley H. Jones, III, Stephen Friedrich Schelver, McGlinchey Stafford, Mary Clift Abdalla, Walter G. Watkins, Jr., Walter Garner Watkins, III, Forman, Perry, Watkins, Krutz & Tardy, PLLC, Charles E. Ross, Linda F. Cooper, Wise, Carter, Child & Caraway, Jackson, MS, Gerald Haggart Jacks, Jamie Ferguson Jacks, Jacks, Adams & Norquist, P.A., Cleveland, MS, for Defendants.

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

GLEN H. DAVIDSON, Senior 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 Kmart 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 “[t]he 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 § 11–46–9(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 “MTCA”), 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 NF1A 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 FEMA Trailer Formaldehyde Prods. Liab. 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'n, 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. Graybar 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. Halliburton, 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). SeeFed.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...