Case: 1:11-cv-00103-GHD-DAS Doc #: 295 Filed: 10/30/13 1 of 2 PageID #: 4829
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al. Defendants
MEMORANDUM IN SUPPORT OF RESPONSE TO FULTON IMPROVEMENTS, LLC’S MOTION FOR SUMMARY JUDGMENT May It Please the Court: Plaintiff, Kmart Corporation, submits this Response to Fulton Improvements, LLC’s Motion for Summary Judgment. Fulton’s motion should be denied because material issues of fact exist regarding the effect of the Kroger store’s presence on Kmart’s flooding; regarding Fulton’s knowledge of Kroger’s presence in a flood-prone area; regarding issues of alleged estoppel; regarding causation; and regarding whether the flood event at issue is an Act of God as defined by jurisprudence. Issues of contractual interpretation also preclude summary judgment in favor of Fulton. In support of its Motion, Kmart submits the following: •
Exhibit “1" - Excerpts to Deposition of Donna Earnhardt, corporate representative of Fulton Improvements, LLC;
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Exhibit “2" - Excerpts to Deposition of Robert B. Eley;
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Exhibit “3" - Excerpts to Deposition of John R. Krewson;
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Exhibit “4" - Excerpts to Deposition of James N. Monohan;