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
                    _______________




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              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, 

, 893-94 (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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