Case: 1:11-cv-00103-GHD-DAS Doc #: 329 Filed: 11/14/13 1 of 4 PageID #: 6220
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION VS.
PLAINTIFF CIVIL ACTION NO. 1:11-CV-103-GHD-DAS
THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP; FULTON IMPROVEMENTS LLC; THE KANSAS CITY SOUTHERN RAILWAY COMPANY; CITY OF CORINTH; THE UNITED STATES OF AMERICA; JOHN DOE; AND ABC CORPORATION
DEFENDANTS
______________________________________________________________________________ UNOPPOSED MOTION FOR ENLARGEMENT OF PAGES ______________________________________________________________________________ COMES NOW, Defendant The Kansas City Southern Railway (“KCSR”), by and through counsel, and files this its Unopposed Motion for Enlargement of Pages relative to its reply in further support of its Motion for Summary Judgment [Doc 253], and in support thereof would state unto the Court as follows: 1. Pursuant to the Federal Rules of Civil Procedure and Uniform Local Rule7(b)(5), Movant KCSR’s original and rebuttal memorandum briefs in support of its Motion for Summary Judgment may not exceed a total of thirty-five (35) pages. 2. KCSR’s original memorandum brief in support of its Motion for Summary Judgment was thirty-one (31) pages. Therefore, under the Rules, KCSR has four pages remaining for its rebuttal memorandum brief. 3. Pursuant to Fed. R. Civ. P. 56(c)(2), where a party, here Plaintiff, in opposition to a
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Case: 1:11-cv-00103-GHD-DAS Doc #: 329 Filed: 11/14/13 2 of 4 PageID #: 6221
motion for summary judgment, relies on material not admissible in evidence, the opposing party, here KCSR, “may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” The Fifth Circuit Court of Appeals has stated that under this now applicable version of the Rule (revised in 2010), it is no longer necessary for a party to file a separate motion to strike a party’s reliance on inadmissible materials; instead the party may object to such material in its reply brief. See Cutting Underwater Technologies USA, Inc., v. ENI U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012). 4. In its reply brief, KCSR intends to move to strike Plaintiff’s reliance on certain materials not admissible in evidence. In the interest of efficiency and judicial economy, KCSR seeks an enlargement of pages so that it may raise such objections in the context of its reply brief, rather than filing a separate motion to strike. 5. Therefore, KCSR seeks an enlargement of eight (8) pages, which will allow it a total of twelve (12) pages for its rebuttal memorandum. 6. Counsel for Kmart Corporation has advised that they are agreeable to this Enlargement of pages.
7. Movant is unaware of any prejudice that would result from the granting of this Motion. WHEREFORE PREMISES CONSIDERED, KCSR requests that this Court enter an Order enlarging from thirty-five (35) to forty (43) the total number of pages it has to complete briefing on its Motion for Summary Judgment.
THIS the 14th day of November, 2013. 2
Case: 1:11-cv-00103-GHD-DAS Doc #: 329 Filed: 11/14/13 3 of 4 PageID #: 6222
Respectfully submitted, THE KANSAS CITY SOUTHERN RAILWAY COMPANY
BY:__/s / Linda F. Cooper CHARLES E. ROSS (MSB #5683) W. McDONALD NICHOLS (MSB #3847) LINDA F. COOPER (MSB #102901) Attorneys for Defendant KCSR
OF COUNSEL WISE CARTER CHILD & CARAWAY, P.A. 600 Heritage Building 401 East Capitol Street Post Office Box 651 Jackson, Mississippi 39205-0651 Telephone: (601) 968-5500 Facsimile: (601) 968-5593
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Case: 1:11-cv-00103-GHD-DAS Doc #: 329 Filed: 11/14/13 4 of 4 PageID #: 6223
CERTIFICATE OF SERVICE I, Linda F. Cooper, one of the attorneys for Defendant, The Kansas City Southern Railway Company, do hereby certify a copy of the above and foregoing has been served on all known counsel of record with the Clerk of the Court using the CM/ECF system which will automatically send email notification to all known counsel of record. This, the 14th day of November, 2013.
/s/ Linda F. Cooper LINDA F. COOPER
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