PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 12-1934 _____________

MD MALL ASSOCIATES, LLC Trading as MacDade Mall Associates, L.P., Appellant,

v.

CSX TRANSPORTATION , INC.

_______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 11-cv-4068) District Judge: Hon. Juan R. Sanchez _______________

Argued January 8, 2013 Before: RENDELL, FISHER, and JORDAN, Circuit Judges.

(Filed: April 30, 2013) _______________

Marc B. Kaplin [ARGUED] Pamela M. Tobin Kaplin, Stewart, Meloff, Reiter & Stein 910 Harvest Drive P.O. Box 3037 Blue Bell, PA 19422 Counsel for Appellant

Richard P. Caldarone Andrew Tauber [ARGUED] Mayer Brown 1999 K Street, NW Washington, DC 20006

Heather M. Gamache John E. Young, IV Flynn & Wirkus 1500 John F. Kennedy Blvd. - #312 Philadelphia, PA 19102 Counsel for Appellee _______________

2 ORDER AMENDING OPINION _______________

JORDAN, Circuit Judge.

IT IS NOW ORDERED that the above-captioned opinion be amended as follows:

At the top of page 21, in the sentence beginning “The railroad‟s argument”, “in Strozyk” shall be deleted, and, in the citation that follows, “Stozyk, 358 F.3d at 273” shall be deleted and replaced with “See supra at 18-19”.

On page 22, following the cite to “Cowden v. BNSF Ry. Co., … (E.D. Mo. 2010)” insert: “rev’d on other grounds,

(8th Cir. 2012) (reversing as premature the grant of summary judgment because the district court had raised FRSA regulations for the first time sua sponte and did not give plaintiff an opportunity to „submit[] evidence of FRSA violations‟ or to separately evaluate whether railroad breached duty imposed by FRSA)”.

/s/ Kent A. Jordan Circuit Judge

DATED: May 30, 2013 PDB/cc: All Counsel of Record

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