United States District Court, S.D. Texas, Brownsville Division
AGUSTIN J. AYALA, Plaintiff,
THE HOME DEPOT USA, INC; dba THE HOME DEPOT, Defendants.
MEMORANDUM OPINION AND ORDER
S. HANEN UNITED STATES DISTRICT JUDGE.
matter before the Court in this diversity action is
Defendant's Motion for Summary Judgment. [Doc. No. 12].
The Defendant has moved for summary judgment under Rule 56(c)
on limitations grounds. The Plaintiff has not filed a
response to Defendant's Motion. For the reasons below,
the Court finds that Defendant's Motion for Summary
Judgment should be granted.
Procedural and Factual Background
Plaintiff alleges that on March 13, 2014, he entered Home
Depot Store #6984 located on West Morrison Road in
Brownsville, Texas, intending to purchase goods from
Defendant. [Pl.'s Compl., Doc. No. 1‒3 at 4]. The
Defendant is a multinational home improvement supplies
retailing company. While in the store, Plaintiff was
attempting to gather bricks from a “rack/and or shelf,
” a structure that Plaintiff contends was unsecured.
[Id.] According to Plaintiff, the bricks fell from
the structure, and Plaintiff reached out to grab the bricks
in an effort to prevent the bricks from falling and hitting
his foot. [Id.] The Plaintiff was apparently
unsuccessful, and the falling bricks allegedly caused bodily
injuries to his upper back, right arm, right hand, right
wrist, and right shoulder area. [Id.]
Plaintiff sued Defendant in state court on premises liability
grounds. Specifically, Plaintiff pleaded that Defendant knew
or should have known about the dangerous state of the
unsecured structure that directly and proximately caused
Plaintiff's injuries. [Id. at 6]. Plaintiff
seeks damages for what he alleges is past and future physical
injuries and impairment, past and future mental anguish and
loss of enjoyment, and past and future medical expenses.
[Id. at 8]. The Defendant removed the suit to this
Court, and filed a Motion for Summary Judgment.
Defendant argues that Plaintiff's premises liability
claim is barred by a two-year statute of limitations for
personal injury claims under Tex. Civ. Prac. & Rem. Code
§ 16.003. [Doc. No. 12 at 2]. The Defendant asserts that
although Plaintiff pleaded that the alleged incident occurred
on March 13, 2014 and filed his Petition on March 11, 2016,
the alleged accident actually occurred on March 4, 2014.
[Id. at 5‒6]. The Defendant argues that
summary judgment is warranted as Plaintiff should have filed
his suit by March 4, 2016 to fall within the statute of
limitations. [Id. at 6].
respect to evidence, Defendant has attached an affidavit from
Mr. Jaime Trevino, an operations manager at Home Depot Store
No. 6984, who Plaintiff sought out after suffering his
claimed injuries. According to Mr. Trevino, Plaintiff told
him on March 4, 2014 that he injured a finger on his right
hand while shopping for concrete blocks. [Trevino Aff., Doc.
No. 12‒1 at 3]. Mr. Trevino provided Plaintiff a form
to provide a witness statement about the alleged incident.
[Id.] According to the summary judgment evidence,
the Plaintiff wrote:
is Jaime Ayala on 3/4/14 I was in your store to purchase some
concrete blocks as was getting some 4x8x16 they came down
squatching [sic] my pinky on my right hand between two blocks
before they fell to the floor. [Ex. A‒1, Doc. No.
12‒1 at 6]. Mr. Trevino also avers that Plaintiff
allowed him to photograph his driver's license that day
to accompany Plaintiff's statement, a photograph which
Defendant attaches to its motion. [Id. at 7].
Trevino completed his own witness statement listing the date
of the incident as March 4, 2016, and completed an incident
report on the same day. [Id. at 8]. Mr. Trevino
reported the claim to Sedgwick, Defendant's third-party
claims administrator for pre-suit general liability claims on
March 4, 2016. [Trevino Aff., Doc. No. 12‒1 at 8]. The
Defendant also attaches the affidavit of Georgette Stringer,
the Assistant Manager of Claims for Sedwick, who was assigned
to work on Defendant's account. [Doc. No. 12 at 4]. Ms.
Stringer conducted a personal review of the information
submitted by Mr. Trevino about the alleged incident involving
Plaintiff. [See Stringer Aff., Doc. No. 12‒2
Plaintiff has not filed a response to Defendant's Motion.
judgment is warranted “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “The movant bears the burden of
identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material
fact.” Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 322-25 (1986)). Once a movant
submits a properly supported motion, the burden shifts to the
non-movant to show that the Court should not grant the
motion. Celotex Corp., 477 U.S. at 321-25. The
non-movant then must provide specific facts showing that
there is a genuine dispute. Id. at 324;
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). It is well settled that “the
admissibility of summary judgment evidence is subject to the
same rules of admissibility applicable to a trial.”
Pegram v. Honeywell, Inc., 361 F.3d 272, 285 (5th
Cir.2004) (quoting Resolution Trust Corp. v.
Starkey, 41 F.3d 1018, 1024 (5th Cir.1995)).
dispute about a material fact is genuine if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
must draw all reasonable inferences in the light most
favorable to the nonmoving party in deciding a summary
judgment motion. Id. at 255. The key question on
summary judgment is whether a hypothetical, reasonable
factfinder could find in favor of the nonmoving party.
Id. at 248. If the non-moving party fails to satisfy
its burden, the court must grant summary judgment in the
movant's favor. Smith v. United States, 391 F.3d
621, 625 (5th Cir.2004).
there is no response filed to a movant's summary judgment
motion, the failure to do so does not permit the court to
enter a “default” summary judgment. Eversley
v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
Nevertheless, the court can accept as undisputed the evidence
set forth in support of the movant's motion for summary
judgment. Id. The unsworn pleadings of the
non-movant who does not respond to a motion for summary