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Case: 1:11-cv-00103-GHD-DAS Doc #: 330 Filed: 11/14/13 1 of 14 PageID #: 6224

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 _____________________________________________________________________________ DEFENDANT THE KANSAS CITY SOUTHERN RAILWAY COMPANY’S REPLY IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ The Kansas City Southern Railway Company (“KCSR”) hereby files this reply in further support of its Motion for Summary Judgment. As set forth fully in KCSR’s Motion for Summary Judgment [Doc 253] and Memorandum in support [Doc 254], Plaintiff has no admissible evidence that KCSR breached a duty to Plaintiff or, assuming arguendo a breach, that there was excessive debris under KCSR’s bridge at the time of the flood, or that such assumed debris was the “but-for” or proximate cause of Plaintiff’s damages. Plaintiff’s opposition does nothing to refute this lack of evidence. KCSR, however, has submitted undisputed admissible evidence that KCSR did, in the months prior to the May 2, 2010 flood, reasonably inspect the area beneath its Elam Creek bridge for excessive debris. Further, the undisputed admissible evidence shows that, even assuming arguendo the amount of debris assumed by Plaintiff’s expert was present at the time of the May 2, 2010 flood, such would have had no impact on flood levels at the Kmart store, and regardless, there is no proximate causation given the undisputed evidence that the flood was an “Act of God.” For these reasons, KCSR is entitled to summary judgment. 1


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KCSR will only address in this reply matters that warrant clarification in light of Plaintiff’s attempt to manufacture a disputed issue of material fact in order to withstand summary judgment. ARGUMENT A. Plaintiff’s continued assumption that KCSR negligently failed to maintain the area beneath its Elam Creek bridge free of excessive debris is insufficient to survive summary judgment. Plaintiff’s bald assertion that summary judgment is not appropriate because “there are issues of fact regarding whether KCSR breached a duty to Kmart when it failed to maintain the railroad underpass at Elam Creek” presupposes that KCSR did in fact fail to maintain the underpass. [Doc 293 at 8] (emphasis added). Plaintiff cites, and has, no evidence to support this assertion. To avoid summary judgment, the non-movant must point to specific admissible evidence showing the existence of an actual controversy, Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994), which Kmart has not done. Thus, Plaintiff has failed to satisfy its burden to survive summary judgment. See Firman v. Life Insurance Co. of North America, 684 F.3d 533, 538 (5th Cir. 2012) (to survive summary judgment, “unsubstantiated assertions that a fact issue exists will not suffice”). Further, the only record evidence demonstrates that KCSR did reasonably maintain the area beneath its Elam Creek bridge. As set forth in KCSR’s motion for summary judgment [Doc 253] and memorandum in support [Doc 254], the undisputed admissible evidence is that KCSR met, and exceeded, its own policies, promulgated pursuant to federal guidelines, for inspecting its bridges for debris, and acted promptly to maintain its bridges when KCSR became aware of any debris. Plaintiff proffers no evidence – or even makes any argument – that such inspection and maintenance was not reasonable. Moreover, Plaintiff’s suggestion that debris might have

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collected under the bridge in the “four months between the time of the [last official bridge] inspection and the flood event,” Doc 293 at 29, is not proof, and regardless, is irrelevant where Plaintiff does not dispute either that KCSR conducted track inspections at least once per week, which involved looking for and clearing any excessive debris, or that KCSR had received no complaints of debris at any time prior to the flood. See Doc 254 at 8-9. In short, there is no evidentiary basis on which the finder of fact could conclude that KCSR was negligent in maintaining the area beneath its bridge. Related, Plaintiff’s expert John Krewson is the only witness (fact or expert) that Plaintiff has identified to testify as to KCSR’s alleged negligence. See Plaintiff’s Responses to KCSR’s First Set of Interrogatories at 5 (Exhibit A). Krewson, who has no railroad experience, is not qualified to offer expert testimony as to the reasonableness of KCSR’s maintenance program; sets forth no opinions as to KCSR’s bridge inspection/maintenance program in his expert report; and has no personal knowledge of KCSR’s bridge maintenance procedures. As such, he is not competent as an expert or a fact witness to testify as to Plaintiff’s assertion that KCSR was negligent in its bridge inspections and maintenance. More specifically, Krewson’s CV does not indicate that he has any qualifications or experience relative to railroad inspection or maintenance programs. Exhibit B (Krewson CV). Moreover, neither Krewson’s expert report nor his deposition testimony contains any reference to or opinion regarding the reasonableness of KCSR’s bridge maintenance procedures. Exhibit C (Krewson’s September 2012 Expert Report). Therefore, as to KCSR’s bridge maintenance and inspection procedures, Krewson can only be a fact witness (at most) for Plaintiff. As such, any testimony Krewson offers regarding railroad bridge inspection and/or maintenance procedures must be sworn and based on personal knowledge. See Fed. R. Civ. P. 56(c)(4); see also

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Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 650 n. 3 (5th Cir. 1992) (admissibility of evidence at summary judgment stage “is subject to the same standards and rules that govern the admissibility of evidence at trial”). Plaintiff proffers no such sworn testimony by Krewson as to KCSR’s bridge inspections/maintenance. Furthermore, since Krewson only saw the bridge after the flood, see Krewson Report (Ex. C), he has no personal knowledge as to KCSR’s inspections or maintenance of the bridge before the flood. Thus, Krewson (Plaintiff’s only witness as to KCSR’s alleged liability) offers nothing as to Plaintiff’s allegations of KCSR’s negligent maintenance of the Elam Creek bridge. Beyond this, even if Krewson were an expert in railroad bridge maintenance (which he is not), and even if he had proffered an opinion as to KCSR’s maintenance procedures (which he did not), his sole reliance on City of Corinth employee David Huwe’s hearsay statements to form his opinions would not be permissible. According to Plaintiff, Huwe told Krewson that the “railroad had a poor record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event.” Doc 293 at 2. Beyond the fact that Plaintiff misrepresents Huwe’s statement, 1 Krewson’s adoption of hearsay statements as to what someone else said to Huwe about prior maintenance problems at the bridge (without any reference to time) are an unreliable basis for expert opinion since Krewson applied no accepted methodology to corroborate the reliability of such statements. See e.g. Factory Mutual Insurance Co. v. Alon USA L.P., 705 F.3d 518, 523 (5th Cir. 2013) (where an expert’s opinion is based on facts not admissible in evidence, the expert may not “parrot impermissible hearsay” but

1

Mr. Huwe’s deposition testimony establishes that he himself has no personal knowledge of KCSR’s bridge maintenance program or of the condition of the underpass beneath KCSR’s bridge at any particular time, on or before May 2, 2010. Huwe Dep at 158-159 (Exhibit E). Mr. Huwe’s only knowledge of any problems with alleged debris at the KCSR bridge was an informal conversation with another City employee (i.e. inadmissible hearsay) wherein the City employee referred to prior upkeep problems at the bridge, and without any specifics as to the extent of the problems or the timeframe of such problems. Id. 4


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must “form his own opinions by applying his extensive experience and a reliable methodology to the inadmissible materials.”) (emphasis added). Thus, Plaintiff’s effort to bootstrap David Huwe’s alleged (hearsay) remarks into an issue of disputed fact fails. Simply put, the fact that Kmart flooded is not evidence of negligence on the part of KCSR. Plaintiff is without any evidence to establish a breach of any duty KCSR might have to reasonably maintain its bridges free of excessive debris, so KCSR is entitled to summary judgment on that basis alone. See May v. V.F.W. Post No. 2539, 577 So. 2d 372, 375 (Miss. 1991 (only when plaintiff shows duty and breach is it possible for the court to proceed to a consideration of proximate cause); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial” and “mandates the entry of summary judgment.”). B. Plaintiff’s untimely allegation that KCSR’s violation of the City of Corinth Code of Ordinances constitutes negligence vis a vis Plaintiff should be stricken, and regardless, does not create an issue of fact. Despite acknowledging “Kmart’s allegations against KCSR are based on common law negligence,” Doc 293 at 8, Plaintiff then premises (for the first time in this litigation) KCSR’s purported negligence on a breach of its duty, pursuant to the City of Corinth Code of Ordinances, “to refrain from obstructing the drainage of the City.” Doc 293 at 9. This untimely allegation should be stricken because the City of Corinth Code of Ordinances was never identified by Plaintiff in its interrogatory responses or otherwise (e.g. in Krewson’s expert report). 2 2

Pursuant to Fed. R. Civ. P. 56(c)(2), where a party, in opposition to a motion for summary judgment, relies on material not admissible in evidence, the opposing party “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; instead the party may simply object to such material in its reply brief. Cutting Underwater Technologies USA, Inc., v. ENI U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012). Thus, here, KCSR includes in this reply its objection to Plaintiff’s reliance on inadmissible evidence in an attempt to withstand summary judgment. 5


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KCSR propounded a specific discovery interrogatory asking Plaintiff to identify “each and every federal, state, governmental, national, local, private or company statute, regulation, rule, ordinance, policy, or standard which Plaintiff claims Defendant KCSR violated or failed to comply with and which caused or contributed to the incident which is the subject of the Plaintiff’s Complaint.” See Ex. A at 5-6. In response, Plaintiff never referenced the City of Corinth Code of Ordinances. See id. And Krewson, Plaintiff’s expert and only witness on KCSR’s alleged liability, does not in any way refer to the City of Corinth ordinance in his designation/report. See Ex.C. Plaintiff cannot now assert a claim based on the City of Corinth Code of Ordinances which it never asserted until responding to KCSR’s motion for summary judgment. See Cutrera v. Bd. Of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (plaintiff’s new claim, raised for the first time in a response to a motion for summary judgment, is not properly before the court). Such is not allowed by clear case law, see id., and would be extremely prejudicial to KCSR since KCSR has not had the opportunity to conduct discovery as to the City of Corinth ordinance ( i.e. via a deposition of the City of Corinth or by exploring such in Krewson’s deposition), or to develop counter-testimony. Thus, all of Plaintiff’s allegations as to KCSR’s violations of City of Corinth ordinances should be stricken in their entirety. Beyond Plaintiff’s failure to timely raise this allegation, Plaintiff does not have standing, on behalf of the City of Corinth, to allege such a breach of duty by KCSR. Indeed, the City has not asserted any such claim against KCSR. Further, on the merits, there is no record evidence of any obstruction by KCSR of City drainage. Instead, Plaintiff ‘s attorney just throws the allegation out there, for the first time in this litigation, in an attempt to avoid summary judgment.

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Plaintiff’s post hoc attempt to manufacture a breach on KCSR’s part should be stricken, and even if considered, is without merit due to the lack of supporting evidence. C. Plaintiff has no evidence of excessive debris under KCSR’s bridge. Beyond this, Plaintiff has put forth no admissible evidence that excessive debris in fact existed at the time of the May 2, 2010 flood. Plaintiff relies solely on Krewson’s testimony to establish, at the time of the May 2, 2010 flood, the alleged existence of debris beneath the railroad bridge, the amount of such debris, and whether such debris affected the flood level at the Kmart store. As set forth fully in KCSR’s Daubert motion to exclude Krewson’s testimony [Doc 240] and memorandum in support [Doc 241], Krewson’s opinions in this regard are not helpful to the trier of fact (i.e. Krewson admitted in his deposition he could not say there was debris, or how much debris there was, at the time of the flood, see Krewson Dep at 158-160 (Ex. E)) and they are therefore inadmissible under FRE 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). 3 Further, Plaintiff’s reliance on Rhaly v. Waste Management of Mississippi, Inc., 43 So. 3d 509 (Miss. Ct. App. 2010) is inapposite.

The question in Rhaly was whether a waste

management company should have reasonably foreseen that its dumpster, placed on the banks of a ditch, could be carried into the ditch by runoff or rising water, obstruct the ditch, and thereby cause flooding of nearby properties, such that the company’s duty of reasonable care to neighboring landowners was breached. In Rhaly, the presence of an obstruction in the form of a 3

As explained in KCSR’s reply in further support of its Daubert motion [Doc 299], Plaintiff continues to rely on a photograph that Krewson did not reference in his initial report, and upon which this Court has ruled Krewson cannot now rely in forming his expert opinions as to KCSR’s liability. Thus, Plaintiff’s argument that an additional “photograph that was taken on the date of the flood event [] supports Mr. Krewson’s conclusion that the debris field was present in the KCSR underpass at the time of the flood,” Doc 293 at 15, is not even properly before the Court and should be stricken.

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dumpster was not in dispute. Here, by contrast, Plaintiff has offered no admissible evidence that an obstruction in the form of excessive debris even existed beneath KCSR’s bridge at the time of the flood. Because the record is devoid of any photographic, eyewitness, or expert evidence of excessive debris at the time of the flood, there is no basis on which the finder of fact could find negligence on the part of KCSR. D. Even assuming arguendo the existence of excessive debris beneath KCSR���s bridge at the time of the flood, Plaintiff has no admissible evidence that such debris would have had any impact on flooding at Kmart. Plaintiff’s admission that Krewson cannot offer testimony as to the actual impact of alleged debris under KCSR’s bridge on flooding at Kmart, but relies instead on “general” principles of hydrology to form his conclusion that there must have been an impact, confirms that Plaintiff cannot show but-for causation. In its response to KCSR’s motion for summary judgment, Plaintiff admits that “Mr. Krewson did not prepare a model to quantify the specific impact of the debris field under the KCSR bridge [on flooding at Kmart].” Doc 293 at 17-18. Rather, according to Plaintiff, Krewson’s causation opinions are based on “general and reliable hydrological principles.” Id. Neither Plaintiff nor Krewson offers any specifics as to which “principles” Plaintiff’s counsel alludes to. As set forth fully in KCSR’s briefing on its Daubert motion to exclude Krewson [Doc 240], Krewson’s testimony is inadmissible under FRE 702 and Daubert, but even if considered, does not satisfy Plaintiff’s burden to come forward with specific evidence showing that an act or omission by KCSR caused Plaintiff’s damages. See Firman v. Life Insurance Co. of North America, 684 F.3d 533, 538 (5th Cir. 2012) (plaintiff must set forth specific facts showing the existence of a genuine issue concerning every essential component of its case). Given that Krewson is Plaintiff’s only witness on causation, KCSR is entitled to summary judgment on this basis alone.

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Beyond this, as set forth in KCSR’s Memorandum in support of its summary judgment motion [Doc 254 at 27-28], the undisputed testimony, based on hydrologist Blake Mendrop’s modeling, demonstrates that, even assuming arguendo there was a blockage as alleged by Plaintiff, such blockage would have had no impact on the water levels at the Kmart store. KCSR is also entitled to summary judgment on this basis. E. Plaintiff’s transparent attempt to shift the burden to KCSR to prove its Act of God defense fails where the facts supporting the defense are undisputed. Plaintiff’s lack of negligence and causation evidence notwithstanding, Plaintiff asserts that “[s]ummary judgment is inappropriate as KCSR has not met its burden of proving its act of God defense because issues of fact remain regarding whether Kmart’s injuries could have been prevented by KCSR’s use of reasonable care and foresight in maintaining the railroad underpass.” Doc 293 at 23 (emphasis added). As shown in sections A and B, Plaintiff has no evidence that KCSR did not use reasonable care and foresight in the maintenance and inspection of its Elam Creek bridge; and, the undisputed record evidence is that KCSR did use reasonable care and foresight in maintaining the area beneath the bridge. Thus, there is no issue of fact as to whether KCSR “used reasonable care and foresight in maintaining the railroad underpass.” The evidence is undisputed: KCSR did. Beyond this, Plaintiff never addresses the fact that Plaintiff’s own documents and Krewson’s testimony establish that the rainfall amount in Corinth, Mississippi, on May 2, 2010, exceeded the 100-year flood event and was not reasonably foreseeable. See Doc 254 at 3-7. Thus, it is undisputed that the flood was an unforeseeable act of God, so summary judgment on that basis is also appropriate.

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Related, Plaintiff’s reliance on unauthenticated “facts” not in evidence to support its argument that the May 2, 2010 flood was not an Act of God should be stricken. 4 Plaintiff cites to an unauthenticated (and unofficial) newsletter by Milton Sandy which quotes a 2001 Northeast Mississippi Daily Journal that is not itself in the record. See Doc 293 at 24-25. First, the newsletter is unauthenticated in that Plaintiff has no sworn sponsoring witness to authenticate it. See Fed. R. Civ. P. 56(c)(4); see also Donaghey, 974 F.2d at 650 n. 3 (admissibility of evidence at summary judgment stage “is subject to the same standards and rules that govern the admissibility of evidence at trial”). Second, because the material in the newsletter is a reproduction of what the newspaper article purportedly says, such constitutes double hearsay since the newspaper article is also unauthenticated hearsay. See Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005) (newspaper articles are “classic inadmissible hearsay”). Finally, the newspaper itself is not in the record, and therefore is not properly before the Court. See FRCP 56(c)(1)(A) (party asserting a fact is genuinely disputed must support the assertion by citing to particular parts of materials in the record). Plaintiff’s apparent attempt to make the newspaper article self-authenticating fails. While a newspaper article itself (as opposed to Milton Sandy’s unofficial newsletter) may be selfauthenticating pursuant to FRE 902(6), it must be actually presented to the Court in order to be considered. See Fed. R. Evid. 902(6). 5 In its Response, Plaintiff attaches only a copy of Milton Sandy’s newsletter, which purports to reproduce the 2001 Northeast Mississippi Daily Journal

4

KCSR makes its objection to Plaintiff’s reliance on unauthenticated documents which constitute inadmissible hearsay in this reply, rather than filing a separate motion to strike those portions of Plaintiff’s response. See footnote 3, infra.

5

Rule 902(6) provides that the actual “printed materials purporting to be a newspaper or periodical” are among the “items of evidence” that are self-authenticating. That Plaintiff does not provide the actual newspaper article he cites, however, means that no such evidence is properly before the Court. 10


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article. See Doc 292-9. Such does not meet the requirement of Rule 902(6) (i.e. the newsletter is hearsay, and the newspaper itself is not provided). Moreover, even assuming the newspaper article as presented is self-authenticating (which it is not), the statements contained in the article and on which Plaintiff relies are themselves another layer (the third) of inadmissible hearsay, and thus do not constitute competent summary judgment evidence. See 5 Weinstein’s Federal Evidence § 902.02[1] (“’Self-authenticating’ documents are not necessarily admissible. Rule 902 addresses only the requirement of authentication.”). To be admissible, the documents must not be excludible under the hearsay rules. Id.

Here, Plaintiff cites statements in a purported Northeast Mississippi Daily Journal

that are triple hearsay: Corinth – Flash Flood Part II might well be the name of Thursday’s weather bashing in Corinth and Alcorn County. It was a repeat of what some called a 100-year flood recorded about six weeks ago. The chief estimated that 10 inches of rain fell within a 24-hour period. Last month, the same area was inundated by what [Corinth Police Chief Fred Johnson] called a 100-year flood. “This time, we may have had a 200-year flood,” he said, “only half-jokingly . . . .” Plaintiff’s Response, Doc 293 at 25 (emphasis added). Plaintiff’s reliance on the Corinth police chief’s speculation about the extent of flooding during particular weather events in 2001 (i.e. 9 years before the 2010 flood at issue) 6 as reported by the Northeast Mississippi Daily Journal and reproduced in Milton Sandy’s newsletter, does not allow Plaintiff to withstand summary judgment. See Roberts, 397 F.3d at 295 (reversing district court’s denial of summary judgment in favor of defendant where only evidence plaintiff had was “classic inadmissible hearsay” contained in newspaper articles); Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 6

Given this time period, the evidence Plaintiff asserts is also irrelevant, in addition to being inadmissible. See Estep v. University of Texas at Austin, 146 F.3d 868 (5th Cir. 1998) (submission of irrelevant evidence does not allow a party to defeat summary judgment). 11


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685, 692 (5th Cir. 2011) (“Hearsay evidence inadmissible at trial cannot be used to create a genuine issue of material fact to avoid summary judgment.”). Finally, Plaintiff does not produce any sworn affidavit testimony based on personal knowledge from Mr. Sandy. See Fed. R. Civ. P. 56(c)(4) (summary judgment testimony must be sworn and based on personal knowledge). 7 Here, Kmart’s own documents and expert testimony establish that the May 2, 2010 flood event was an unforeseeable act of God, and Kmart offers no admissible evidence otherwise. As such, the cases Plaintiff relies on in support of its argument that KCSR is not entitled to summary judgment on its Act of God defense are inapposite since Plaintiff’s own evidence establishes the unforeseeability of the flood. In sum, the conclusory assertion of Plaintiff’s lawyer that “[t]he damages incurred by Kmart were the result of KCSR’s failure to maintain the underpass of the KCSR bridge over Elam Creek” does not make it so. See Little v. Liquid Air Corp., 37 F.3d1069, 1075 (5th Cir. 1994) (“We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”) (emphasis in original). Plaintiff has failed to establish a prima facie case of negligence against KCSR, and KCSR is entitled to summary judgment in its favor. CONCLUSION For all the foregoing reasons, KCSR respectfully asks this Court to enter an order granting summary judgment as a matter of law in its favor on Plaintiff Kmart’s negligence claim against it, and that Plaintiff’s claim against KCSR be dismissed with prejudice.

7

Contrary to Plaintiff’s suggestion, KCSR had no duty to depose Mr. Sandy. 12


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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 Email: cer@wisecarter.com wmn@wisecarter.com lfc@wisecarter.com

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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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Case: 1:11-cv-00103-GHD-DAS Doc #: 330-5 Filed: 11/14/13 5 of 5 PageID #: 6294


330 replyinfurthersupportmotionforsummaryjudgement kcsr combine