363 memoinsupportresponsetooppositiontomotioninlimine kroger

Case: 1:11-cv-00103-GHD-DAS Doc #: 363 Filed: 01/27/14 1 of 10 PageID #: 7123

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI KMART CORPORATION VS.

PLAINTIFF CIVIL ACTION NO. 1:11-CV-103-GHD-DAS

THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP, FULTON IMPROVEMENTS, LLC, KANSAS CITY SOUTHERN RAILWAY COMPANY, CITY OF CORINTH, THE UNITED STATES OF AMERICA, JOHN DOE, and ABC CORPORATION

DEFENDANTS

MEMORANDUM OF AUTHORITIES IN SUPPORT OF RESPONSE IN OPPOSITION TO MOTION IN LIMINE TO EXCLUDE EVIDENCE COMES NOW, The Kroger Co. (“Kroger”), by and through its counsel of record, and files this its Memorandum of Authorities in Support of Response in Opposition to Motion in Limine to Exclude Evidence, and in support thereof would state unto the Court the following, towit: I.

INTRODUCTION. Kmart Corporation (“Kmart”) argues in its Motion in Limine to Exclude to Exclude

Evidence (“Kmart’s Motion”), Doc. No. 352, that what it describes as an “unsigned letter dated September 25, 2010” (the “September 25 Letter”) is due to be excluded “as being not properly authenticated and as constituting inadmissible hearsay.” [Doc. No. 352 at 1] Kmart bases this argument on testimony it obtained from the deposition of the corporate representative of Fulton Improvements, LLC (“Fulton”). [See Doc. No. 353 at 2-4] The September 25 Letter indicates that it is from Melissa Green, whom the letter identifies as a regional human resources director for Kmart Retail, to an unknown employee of Kmart’s store number 4883 located in Corinth,

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Mississippi. [Exhibit A, exhibit 24 thereto] The September 25 Letter advises that no decision has been made on whether or not this particular store will reopen to the public and that, as an apparent consequence, this employee’s employment with Kmart will terminate in September 2010, adding that should the store be reopened the employee would be able to apply for a position at the store. [Exhibit A, exhibit 24 thereto] As to its arguments regarding proper authentication, Kmart appears to be relying solely on the provisions of FED.R.EVID. 901(b)(1), which concern the authentication by “[t]estimony that an item is what it is claimed to be.” [See Doc. No. 353 at 2-4] However, as demonstrated herein, the September 25 Letter may be properly authenticated pursuant to FED.R.EVID. 901(b)(4), which concern authentication by the appearance, content, and substance of a document taken together along with the relevant circumstances. Moreover, Kmart’s contention that the September 25 Letter constitutes hearsay is simply not credible, as the document is clearly non-hearsay as an admission pursuant to FED.R.EVID. 801(d)(2).

For these reason’s Kmart’s Motion is due to be denied.

II.

THE SEPTEMBER 25 LETTER MAY BE AUTHENTICATED PURSUANT TO FED.R.EVID. 901(b)(4).

Federal Rule of Evidence 901 (a) requires, as a preliminary matter, that all evidence be

properly authenticated as a condition precedent to admission. See U.S. v. Isiwele, 635 F.3d 196, 198 (5th Cir. 2011). The requirement of showing authenticity falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b).1 See id. Under Rule 104(b), the trial court must admit the evidence if sufficient proof has been introduced so that a reasonable juror or could find in favor of authenticity or 1

FED.R.EVID. 104(b) provides: “When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.”

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identification. See id. The Fifth Circuit does not require conclusive proof of authenticity before allowing the admission of disputed evidence. See U.S. v. Jackson, 636 F.3d 687, 693 (5th Cir. 2011). “The ultimate responsibility for determining whether evidence is what its proponent says it is rests with the jury.” U.S. v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009).

“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” FED.R.EVID. 901(a). This standard is not a “burdensome one.” See Jackson, 636 F.3d at 693. Rule 901 does not limit the type of evidence allowed to authenticate a document. See id. Rule 901(b) provides a non-exhaustive list of examples of evidence which satisfy the requirement. See FED.R.EVID. 901(b).

FED.R.EVID. 901(b)(4) provides as follows:

“The appearance, contents, substance,

internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”

FED.R.EVID.

901(b)(4) recognizes that an item of evidence may be

authenticated by distinctive characteristics in its appearance, contents, substance, and internal patterns, when viewed in light of other circumstances bearing on its background. See 31 C. WRIGHT & K. GRAHAM, Federal Practice & Procedure: Evidence § 7109 (1st ed.). A proponent may authenticate document with circumstantial evidence, including the document’s own distinctive characteristics and the circumstances surrounding its discovery. See In re McLain, 516 F.3d 301, 308 (5th Cir. 2008).

It is helpful to think of the foundation for authentication under Rule 901(b)(4) as having two components, one internal and the other external. See 31 C. WRIGHT & K. GRAHAM, Federal Practice & Procedure: Evidence § 7109 (1st ed.). “The first component consists of the item’s internal characteristics, which must be sufficiently distinctive and numerous to be indicative of 3

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the item’s origins, at least when considered in connection with the second component.” Id. “The second component consists of circumstances external to the item itself that provide a context for drawing inferences about authenticity from the item’s internal characteristics.” Id. Even if doubts as to the authenticity remain after considering the internal characteristics of an item of evidence and the external circumstances pertinent to its identity, these doubts usually affect only the weight, not admissibility, of that evidence. See id.

“There are unlimited possible combinations of distinctive characteristics and related external circumstances that may be sufficient to authenticate an item of evidence under Rule 901(b)(4).” Id. Where a writing appears on letterhead paper, or other distinctive stationery used by a particular person or entity, the writing’s origin may be established by this type of physical characteristic taken in combination with other factors. See id. For example, in New Orleans Saints v. Griesedieck, 612 F. Supp. 59, 62 (D.C.La. 1985), the court found authentication requirements to be satisfied for an interoffice memorandum which appeared on corporate letterhead.

Moreover, the contents of writings also can be indicative of origin when they include reference to facts or matters not of common knowledge. See 31 C. Wright & K. Graham, Federal Practice & Procedure: Evidence § 7109 (1st ed.). “[E]ven where the writing’s content leaves doubt as to authenticity, as where the matters in the writing were widely known, the contents taken together with corroborating external circumstances might be sufficient to authenticate.” Id. For example, in U.S. v. Kandiel, 865 F.2d 967, 973-74 (8th Cir. 1989), certain tape recordings were authenticated without any showing of origin, method, or time of recording since contents of the tapes made references to people, places, and activities that were corroborative of other testimony in the record. As demonstrated by the following corroborative 4

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facts in the record, the September 25 Letter can easily be authenticated under FED.R.EVID. 901(b)(4).

Kmart’s corporate representative testified that the September 25 Letter was on “Sears Holdings” letterhead.

[Exhibit B at 46, exhibit 7 thereto]

Sears Holdings is the parent

corporation of Kmart. [Exhibit B at 7] Fulton’s corporate representative testified that she first saw the September 25 Letter sometime around October 14, 2010, which is a date consistent with the partial facsimile header that appears at the top of that letter. [Exhibit A at 167, exhibit 24 thereto] Fulton’s corporate representative further testified that the handwritten telephone number on the bottom of the September 25 Letter is the facsimile number for DLC Management Corporation (“DLC”), which manages the property made the subject of this action for Fulton.2 [Exhibit A at 14, 168, exhibit 24 thereto] The testimony of Fulton’s representative shows that it was her understanding that Fulton’s management company received the September 25 Letter via facsimile from an unknown employee of Kmart, although Fulton’s representative admitted that there was no way it could prove that the letter was sent by Kmart to one of its employees.

[Exhibit A at 168-69] The address and name of the employee, also identified in the September 25 Letter as an “Associate from Store 4883,” is redacted, and Fulton’s representative testified that it was already redacted when the September 25 Letter was received. [Exhibit A at 169] The September 25 Letter indicates that its author is a person named “Melissa Green,” whom the letter identifies as a regional human resources director for Kmart Retail. [Exhibit A, exhibit 24 thereto]

Shortly after his receipt of Kmart’s Motion, counsel for the Kroger

performed a search of the Internet on the Google search engine using the following parameters: “melissa green regional hr director kmart retail.” [Exhibit C] Upon selecting the first result in the 2

Fulton’s corporate representative was actually an employee of DLC. [Fulton’s deposition at 8]

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search list, counsel was taken to the LinkedIn page for Melissa Green, who was identified as a Regional Human Resources Director at Sears Holding Corporation. [Exhibit D] The text of the September 25 Letter advises that no decision has been made on “whether or not Kmart store 4883, Corinth, MS will re-open to the public.”3 [Exhibit A, exhibit 24 thereto] It also states that “[t]here are crews working in the building on repairs in the store, however, they continue to discover needed repairs.” [Id.] This statement is consistent with testimony from Kmart’s corporate representative which indicates that repairs were still ongoing in September 2010. [Exhibit B at 31-32] The text of the September 25 Letter is further consistent with the testimony from Kmart’s corporate representative that no decision had yet been made as to whether the store would re-open as of September 25, 2010. [Exhibit B at 47] An email exchange between DLC and prior counsel for Kmart sheds further light on the September 25 Letter. On October 5, 2010, an employee of DLC sent an email4 to Scott Singley5 which stated as follows: “It has been brought to our attention that the employees of Kmart at Fulton Crossing have received a notice stating that the store is not going to be re-opened. Could you let us know whether this information is accurate?” [Exhibit A, exhibit 25 thereto at 2] In response to the email of October 5, 2010, Mr. Singley replied simply: “There is no truth to that rumor. Thanks.” [Exhibit A, exhibit 25 thereto at 2] As a follow-up to that email exchange, prompted by DLC’s receipt of the September 25 Letter, the employee of DLC sent another email to Mr. Singley on October 18, 2010. [Exhibit A at 169-71, exhibit 25 thereto at 1] This email advised of DLC’s receipt of the September 25 Letter, stated that the letter terminates the 3

Other correspondence from Kmart and its parent corporation, and Kmart’s lease, refer to this location as store 4883 as well. [See e.g. Exhibit A, exhibit 16 thereto; Exhibit B, exhibit 2 thereto at KM-00001 and KM-00028] 4 This email pre-dates the receipt of the September 25 Letter by DLC. [Exhibit A at 167] 5 Counsel for Kmart admitted that Mr. Singley was an attorney with the Brunini law firm in Jackson, Mississippi.

[Exhibit A at 169] The Brunini firm represented Kmart in connection with Kmart's abatement of rental payments immediately following the flood that occurred on May 2, 2010. [Exhibit A, exhibit 18 thereto]

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employment of a Kmart employee, noted that the letter states that Kmart has not made a decision as to whether or not it will reopen its store in Corinth, Mississippi, and asks whether Kmart has made a definitive decision on whether it would reopen the store. [Exhibit A, exhibit 25 thereto] The internal characteristics of the September 25 Letter are sufficiently distinctive and numerous to be indicative of its origins, i.e. from a human resource’s director from Kmart.

Moreover, the corroborative evidence in the record, which are independent from the September 25 Letter, clearly provide a sufficient context for drawing the inference that the letter is authentic. Even if there are doubts as to the authenticity remaining after considering the internal characteristics of the September 25 Letter evidence and the external circumstances pertinent to it, these doubts should affect only the weight, not admissibility, of that letter. See 31 C. WRIGHT & K. GRAHAM, Federal Practice & Procedure: Evidence § 7109 (1st ed.).

III.

THE SEPTEMBER 25 LETTER IS NOT HEARSAY. Kmart contends that the September 25 letter “should be excluded on the grounds that it

contains inadmissible hearsay not subject to any exclusions or exceptions.” [Doc. No. 353 at 4] Clearly, however, the September 25 Letter falls within the definition set forth in Rule 801(d)(2) of the Federal Rules of Evidence which provides that it is non-hearsay. The September 25 letter is an obvious admission by Kmart which is defined as non-hearsay under the Federal Rules of Evidence.

Accordingly, Kmart’s Motion should be denied.

IV.

CONCLUSION. For the reasons set forth herein, Kmart’s Motion seeking to exclude the September 25

Letter should be denied.

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THIS, the 27th day of January 2014.

Respectfully submitted, THE KROGER CO.

By: s/ David A. Norris Of Counsel

Edley H. Jones III (MSB No. 3201) David A. Norris (MSB No. 100616) McGLINCHEY STAFFORD, PLLC City Center South, Suite 1100 200 South Lamar Street (Zip - 39201) Post Office Drawer 22949 Jackson, Mississippi 39225-2949 Telephone: (769) 524-2314 Facsimile: (769) 524-2333 dnorris@mcglinchey.com; ejones@mcglinchey.com

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CERTIFICATE OF SERVICE I, the undersigned David A. Norris, McGlinchey Stafford PLLC, hereby certify that on this day, I electronically filed the foregoing with the Clerk of the Court using the ECF system, which sent notification of such filing to the following: Ryan O. Luminais James M. Garner John T. Balhoff, II SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC 909 Poydras Street, 28th Floor New Orleans, LA 70112 Email: rluminais@shergarner.com Mary Clift Abdalla FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC 200 S. Lamar Street, Suite 100 Jackson, MS 39201 Email: abdallamc@fpwk.com Walter G. Watkins , Jr. FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: wwatkins@fpwk.com Walter Garner Watkins , III FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: trey@fpwk.com Gerald Haggart Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: gjacks@jlpalaw.com Jamie Ferguson Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: jjacks@jlpalaw.com 9

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Charles E. Ross WISE, CARTER, CHILD & CARAWAY P. O. Box 651 Jackson, MS 39205-0651 Email: cer@wisecarter.com Terry Dwayne Little DANIEL, COKER, HORTON & BELL - Oxford P.O. Box 1396 Oxford, MS 38655 Email: tlittle@danielcoker.com

Wilton V. Byars , III DANIEL, COKER, HORTON & BELL P.O. Box 1396 Oxford, MS 38655 Email: wbyars@danielcoker.com John Evans Gough , Jr. U.S. ATTORNEY'S OFFICE - Oxford 900 Jefferson Avenue Oxford, MS 38655-3608 Email: john.gough@usdoj.gov Linda F. Cooper WISE CARTER CHILD & CARAWAY, P.A. P.O. Box 651 Jackson, MS 39205-0651 and I hereby certify that I have mailed by United States Postal Service the document to the following non-ECF participants: None THIS, the 27th day of January 2014.

s/ David A. Norris David A. Norris 277520.2

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