Case: 1:11-cv-00103-GHD-DAS Doc #: 364 Filed: 01/27/14 1 of 3 PageID #: 7133
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 RESPONSE TO THE KROGER CO.’S MOTION IN LIMINE Plaintiff, Kmart Corporation, submits this Response to Kroger’s Motion in Limine. This Court should not consider Kroger’s motion because it was not timely filed. Pursuant to the Case Management Order, the deadline to file motions in limine was January 20, 2014, but Kroger filed its motion on January 21, 2014. Thus, the motion is untimely and should not be considered by this Court. Moreover, this Court should deny Kroger’s motion to the extent it seeks to exclude the testimony of Kmart’s expert, John R. Krewson, because, as more fully set forth in Kmart’s Response to Kroger’s Motion to Exclude Mr. Krewson’s Opinion and in Kmart’s Motion to Amend or Alter Judgment, Mr. Krewson’s testimony is relevant, reliable and helpful to the trier of fact. Additionally, Kroger’s motion should be denied to the extent it seeks to exclude evidence of previous flood events and regarding the “flood-prone” nature of the subject area because this evidence is relevant to Kmart’s negligence claim against Kroger. Kroger can be found negligent if it knew or should have known that its property was in a floodway or a flood-prone area, yet took inadequate measures to protect Kmart against the risk of flooding. Indeed, this Court has already recognized that Kmart has a viable negligence claim against Kroger for Kroger’s failure to maintain
Case: 1:11-cv-00103-GHD-DAS Doc #: 364 Filed: 01/27/14 2 of 3 PageID #: 7134
its store so that it remained flood-neutral to Kmart. Testimony and evidence regarding prior flood events and the general propensity of the subject area to flood is relevant because it shows that Kroger was aware of the vulnerability of the area to flood, but took no steps to prevent its store from causing flood damage to its neighbor, Kmart. Kroger’s motion should also be denied to the extent it seeks to exclude evidence regarding the Kroger store’s prior designation of being located within a floodway and the removal of that designation through a Letter of Map Revision issued by the Federal Emergency Management Agency. Kmart should be permitted to introduce this evidence because it is relevant to show that Kroger was aware that its store was located within a floodway prior to the issuance of the LOMR in 2005, but failed to ensure that its property would not contribute to flooding at Kmart’s store. Accordingly, and for the reasons more fully set forth in the Memorandum in Support of Response to Kroger’s Motion in Limine, Kmart respectfully requests that this Court deny Kroger’s Motion in Limine. This the 27th day of January, 2014.
Respectfully submitted, /s/ Ryan O. Luminais ____________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION 2
Case: 1:11-cv-00103-GHD-DAS Doc #: 364 Filed: 01/27/14 3 of 3 PageID #: 7135
CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 27th day of January, 2014.
/s/ Ryan O. Luminais ______________________________________ RYAN O. LUMINAIS
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