United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
L. HORAN, UNITED STATES MAGISTRATE JUDGE.
Wal-Mart Stores, Inc., Wal-Mart Stores East, Inc., d/b/a
Wal-Mart #1055, and Wal-Mart Real Est Business (collectively,
“Wal-Mart”) filed a Motion for No-Evidence
Summary Judgment on Plaintiff's Claims. See Dkt.
No. 30 (the “MSJ”). Plaintiff Angela Mauer filed
a response, see Dkt. Nos. 33 & 34, and Wal-Mart
filed a reply, see Dkt. No. 36.
Court heard oral argument on December 1, 2017. See
Dkt. No. 40.
reasons explained below, the Court GRANTS in part and DENIES
in part Wal-Mart's Motion for No-Evidence Summary
Judgment on Plaintiff's Claims [Dkt. No. 30].
filed this case against Defendants Wal-Mart Stores, Inc.,
Wal-Mart Stores East, Inc., d/b/a Wal-Mart #1055, and
Wal-Mart Real Est Business (collectively,
“Defendants”) in Dallas County state court on
June 6, 2016. See Dkt. Nos. 2-2 & 2-3. She
asserted claims based on premises liability, general
negligence, and gross negligence. See Dkt. No. 2-3
filed an answer on July 14, 2016, see Dkt. No. 2-6,
and then removed the case to this Court on July 19, 2016,
see Dkt. No. 1.
Federal Rule of Civil Procedure 56, summary judgment is
proper “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). A
factual “issue is material if its resolution could
affect the outcome of the action.” Weeks Marine,
Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235
(5th Cir. 2003). “A factual dispute is ‘genuine,
' if the evidence is such that a reasonable [trier of
fact] could return a verdict for the nonmoving party.”
Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997).
moving party seeks summary judgment as to his opponent's
claims or defenses, “[t]he moving party bears the
initial burden of identifying those portions of the pleadings
and discovery in the record that it believes demonstrate the
absence of a genuine issue of material fact, but is not
required to negate elements of the nonmoving party's
case.” Lynch Props., Inc. v. Potomac Ins. Co.,
140 F.3d 622, 625 (5th Cir. 1998). “Summary judgment
must be granted against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which it will bear the
burden of proof at trial. If the moving party fails to meet
this initial burden, the motion must be denied, regardless of
the nonmovant's response.” Pioneer Expl.,
L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th
Cir. 2014) (internal quotation marks and footnote omitted).
the moving party meets this burden, the nonmoving party must
set forth” - and submit evidence of - “specific
facts showing a genuine issue for trial and not rest upon the
allegations or denials contained in its pleadings.”
Lynch Props., 140 F.3d at 625; Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc);
accord Pioneer Expl., 767 F.3d at 511 (“[T]he
nonmovant cannot rely on the allegations in the pleadings
alone” but rather “must go beyond the pleadings
and designate specific facts showing that there is a genuine
issue for trial.” (internal quotation marks and
Court is required to consider all evidence and view all facts
and draw all reasonable inferences in the light most
favorable to the nonmoving party and resolve all disputed
factual controversies in favor of the nonmoving party - but
only if the summary judgment evidence shows that an actual
controversy exists. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Pioneer Expl.,
767 F.3d at 511; Boudreaux v. Swift Transp. Co.,
Inc., 402 F.3d 536, 540 (5th Cir. 2005); Lynch
Props., 140 F.3d at 625. “The evidence of the
nonmovant is to be believed, and all justifiable inferences
are to be drawn in [her] favor. While the court must
disregard evidence favorable to the moving party that the
jury is not required to believe, it gives credence to
evidence supporting the moving party that is uncontradicted
and unimpeached if that evidence comes from disinterested
witnesses.” Porter v. Houma Terrebonne Hous. Auth.
Bd. of Comm'rs, 810 F.3d 940, 942-43 (5th Cir. 2015)
(internal quotation marks and footnotes omitted). And
“[u]nsubstantiated assertions, improbable inferences,
and unsupported speculation are not sufficient to defeat a
motion for summary judgment, ” Brown v. City
of Houston, 337 F.3d 539, 541 (5th Cir. 2003), and
neither will “only a scintilla of evidence” meet
the nonmovant's burden, Little, 37 F.3d at 1075;
accord Pioneer Expl., 767 F.3d at 511
(“Conclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and
legalistic argumentation do not adequately substitute for
specific facts showing a genuine issue for trial.”
(internal quotation marks and footnote omitted)).
the non-moving party must “set forth specific facts
showing the existence of a ‘genuine' issue
concerning every essential component of its case.”
Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998). And “[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Pioneer Expl., 767 F.3d at 511
(internal quotation marks and footnote omitted).
the nonmovant has been given an opportunity to raise a
genuine factual issue, if no reasonable juror could find for
the nonmovant, summary judgment will be granted.”
DIRECTV, Inc. v. Minor, 420 F.3d 546, 549 (5th Cir.
2005) (footnote and internal quotation marks omitted).
Court will not assume “in the absence of any proof ...
that the nonmoving party could or would prove the necessary
facts” and will grant summary judgment “in any
case where critical evidence is so weak or tenuous on an
essential fact that it could not support a judgment in favor
of the nonmovant.” Little, 37 F.3d at 1075.
“Rule 56 does not impose upon the district court a duty
to sift through the record in search of evidence to support a
party's opposition to summary judgment, ” and
“[a] failure on the part of the nonmoving party to
offer proof concerning an essential element of its case
necessarily renders all other facts immaterial and mandates a
finding that no genuine issue of fact exists.”
Adams v. Travelers Indem. Co. of Conn., 465 F.3d
156, 164 (5th Cir. 2006) (internal quotation marks omitted).
Wal-Mart sufficiently briefed its MSJ as to the premises
asserts that Wal-Mart's MSJ must be denied because it
does not attach evidence and is labeled a no-evidence summary
judgment motion, which Mauer asserts that federal law does
not permit. The Court cannot agree.
United States Court of Appeals for the Fifth Circuit recently
The movant bears the initial burden and must identify those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact. But the movant need not
negate the elements of the nonmovant's case.
Summary judgment must be granted against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which it
will bear the burden of proof at trial. If the moving party
fails to meet this initial burden, the motion must be denied,
regardless of the nonmovant's response.
Pioneer Expl., 767 F.3d at 511 (internal quotation
marks and footnotes omitted; emphasis in original). The
United States Supreme Court's decision in Celotex
Corp. v. Catrett, 477 U.S. 317 (1986), “makes
clear that before the non-moving party is required to produce
evidence in opposition to the motion, the moving party must
first satisfy its obligation of demonstrating that there are
no factual issues warranting trial.” Russ v.
Int'l Paper Co., 943 F.2d 589, 592 (5th Cir. 1991).
“Of course, a party seeking summary judgment always
bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those
portions of the ‘pleadings, depositions, answers to
interrogatories, and admissions on ...