United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Defendants The Kroger Co. and Kroger
Texas L.P.'s Motion for Summary Judgment (Dkt. #17).
Having considered the Motion and the relevant pleadings, the
Court finds that the Motion should be granted in part and
denied in part.
October 15, 2018, Plaintiff Michelle Felker filed her
original petition in state court (Dkt. #1, Exhibit 3). On
November 16, 2018, Defendants removed this case to federal
court (Dkt. #1). On April 24, 2019, Defendants filed their
Motion (Dkt. #17). Plaintiff responded on May 14, 2019 (Dkt.
#19). Defendants replied on May 21, 2019 (Dkt. #20).
purpose of summary judgment is to isolate and dispose of
factually unsupported claims or defenses. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). Summary
judgment is proper under Rule 56(a) of the Federal Rules of
Civil Procedure “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 dispute about a material fact is genuine when
“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).
Substantive law identifies which facts are material.
Id. The trial court “must resolve all
reasonable doubts in favor of the party opposing the motion
for summary judgment.” Casey Enters., Inc. v. Am.
Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.
party seeking summary judgment bears the initial burden of
informing the Court of its motion and identifying
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
that demonstrate the absence of a genuine issue of material
fact. Fed.R.Civ.P. 56(c)(1)(A); Celotex, 477 U.S. at
323. If the movant bears the burden of proof on a claim or
defense for which it is moving for summary judgment, it must
come forward with evidence that establishes “beyond
peradventure all of the essential elements of the
claim or defense.” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears
the burden of proof, the movant may discharge the burden by
showing that there is an absence of evidence to support the
nonmovant's case. Celotex, 477 U.S. at 325;
Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424
(5th Cir. 2000).
the movant has carried its burden, the nonmovant must
“respond to the motion for summary judgment by setting
forth particular facts indicating there is a genuine issue
for trial.” Byers, 209 F.3d at 424 (citing
Anderson, 477 U.S. at 248-49). A nonmovant must
present affirmative evidence to defeat a properly supported
motion for summary judgment. Anderson, 477 U.S. at
257. Mere denials of material facts, unsworn allegations, or
arguments and assertions in briefs or legal memoranda will
not suffice to carry this burden. Rather, the Court requires
“significant probative evidence” from the
nonmovant to dismiss a request for summary judgment. In
re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436,
440 (5th Cir. 1982) (quoting Ferguson v. Nat'l Broad.
Co., 584 F.2d 111, 114 (5th Cir. 1978)). The Court must
consider all the evidence but “refrain from making any
credibility determinations or weighing the evidence.”
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,
343 (5th Cir. 2007).
Summary Judgment is Appropriate on Plaintiff's Negligence
Claim, Plaintiff's Gross-Negligence Claim, and all
Plaintiff's Claims Against Defendant The Kroger
Motion requested judgment as a matter of law on: (1)
Plaintiff's premises-liability claim; (2) Plaintiff's
negligence claim; (3) Plaintiff's gross-negligence claim;
and (4) all of Plaintiff's claims against Defendant The
Kroger Co. (Dkt. #17 at pp. 1-2). In her response, Plaintiff
explicitly surrendered all claims against Defendant The
Kroger Co., her negligence claim against Defendant Kroger
Texas L.P., and her gross-negligence claim against Defendant
Kroger Texas L.P. (Dkt. #19 at p. 4). Accordingly, the Court
finds that the Motion should be granted in part.
Summary Judgment is Denied on Plaintiff's
Premises-Liability Claim Against Defendant Kroger Texas
careful review of the record and the arguments presented, the
Court is not convinced that Defendant Kroger Texas L.P. has
met its burden demonstrating that there is no genuine issue
of material fact as to Plaintiff's premises-liability
claim entitling it to judgment as a matter ...