United States District Court, E.D. Texas
MEMORANDUM AND ORDER
A. CRONE, UNITED STATES DISTRICT JUDGE.
before the court are Defendant Dollar Tree Stores, Inc.'s
(“Dollar Tree”) Rule 56 Motion for Summary
Judgment (#12) and Plaintiff Virginia Bagley's Motion to
Determine Applicability of Texas Civil Practice and Remedies
Code § 18.001 (#13) and Motion to Extend the Deadline
for Response to Defendant's Rule 56 Motion for Summary
Judgment (#15). Having considered the pending motions, the
submission of the parties, and the applicable law, the court
is of the opinion that § 18.001 applies in federal
court, Plaintiff's Motion to Extend the Deadline for
Response to Defendant's Rule 56 Motion for Summary
Judgment should be granted, and Dollar Tree's Motion for
Summary Judgment should be denied.
cases arises from personal injuries Bagley purportedly
suffered after allegedly slipping and falling in the restroom
of a Dollar Tree Store in Beaumont, Texas, on November 27,
2016. On October 1, 2018, Bagley filed suit against Dollar
Tree in the 136th Judicial District Court of Jefferson
County, Texas. Dollar Tree timely removed the action to this
court. On September 12, 2019, Dollar Tree filed its motion
for summary judgment, contending it is entitled to judgment
as matter of law because Bagley has no evidence to support
her claim that Dollar Tree breached a duty that it owed to
her, that she suffered damages, or that her damages were
proximately caused by Dollar Tree's negligence. On
September 20, 2019, Bagley filed her motion to determine the
applicability of Texas Civil Practice and Remedies Code
§ 18.001, wherein she requests that the court interpret
§ 18.001 as a substantive rule of law and, therefore,
applicable in this diversity case because all of her causes
of action arise under Texas law. On October 2, 2019, Dollar
Tree filed its response to Bagley's motion. Bagley's
deadline to file a response to Dollar Tree's motion for
summary judgment was October 4, 2019. Bagley failed to file a
timely response. Instead, on October 11, 2019, she filed an
opposed motion requesting an extension of her deadline to
respond. On October 16, 2019, Bagley filed a substantive
response to the motion.
Timeliness of Bagley's Response
United States Court of Appeals for the Fifth Circuit
recognizes that under Federal Rule of Civil Procedure 6(b),
district courts have “broad discretion” to extend
filing deadlines. United States ex rel. Long v. GSDMIdea
City, L.L.C., 798 F.3d 265, 275-76 (5th Cir. 2015);
Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367
(5th Cir. 1995). A district court may for good cause extend
the time “on [a] motion made after the time has expired
if the party failed to act because of excusable
neglect.” Fed. R .Civ. P. 6(b)(1)(B). To determine
whether a party's neglect was “excusable, ”
the court considers the following factors: “(1) the
possibility of prejudice to the other parties; (2) the length
of the applicant's delay and its impact on the
proceeding; (3) the reason for the delay and whether it was
within the control of the movant; and (4) whether the movant
has acted in good faith.” Salts v. Epps, 676
F.3d 468, 474 (5th Cir. 2012) (quoting Charles Alan Wright et
al., Federal Practice and Procedure § 1165); accord
In re Neurology & Neurophysiology Assocs., P.A., 628
Fed.Appx. 248, 251 (5th Cir. 2015).
aside from not being granted summary judgment by default,
Dollar Tree will not be prejudiced by the court's
consideration of Bagley's response. Bagley filed her
motion for an extension of time seven days after the response
was due and filed her substantive response five days later.
The delay's impact on the instant proceedings is minimal.
Bagley, however, does not provide a credible explanation for
the delay or identify how it was beyond her control.
Nevertheless, it appears she has acted in good faith in
attempting to remedy the failure. In sum, the court finds
Bagley's neglect to be excusable and good cause has been
shown for the untimely filing of Bagley's response to
Dollar Tree's motion for summary judgment.
Summary Judgment Standard
may move for summary judgment without regard to whether the
movant is a claimant or a defending party. Apache Corp.
v. W&T Offshore, Inc., 626 F.3d 789, 794 (5th Cir.
2010); CQ, Inc. v. TXU Mining Co., L.P., 565 F.3d
268, 272 (5th Cir. 2009). Rule 56(a) of the Federal Rules of
Civil Procedure provides that summary judgment shall be
granted “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);
see Hefren v. McDermott, Inc., 820 F.3d 767, 771
(5th Cir. 2016). The party seeking summary judgment bears the
initial burden of informing the court of the basis for its
motion and identifying 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.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Mabry v. Lee Cty., 849 F.3d 232, 234 (5th Cir.
2017); Davis v. Fort Bend Cty., 765 F.3d 480, 484
(5th Cir. 2014), cert. denied, 135 S.Ct. 2804
(2015); Tech. Automation Servs. Corp. v. Liberty Surplus
Ins. Corp., 673 F.3d 399, 407 (5th Cir. 2012). To
warrant judgment in its favor, the movant “must
establish beyond peradventure all of the essential
elements of the claim or defense.” Dewan v. M-I,
L.L.C., 858 F.3d 331, 334 (5th Cir. 2017) (quoting
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986)); accord Access Mediquip L.L.C. v.
UnitedHealthcare Ins. Co., 662 F.3d 376, 378 (5th Cir.
2011), cert. denied, 568 U.S. 1194 (2013).
fact issue is material if its resolution could affect the
outcome of the action.” Hemphill v. State Farm Mut.
Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015),
cert. denied, 136 S.Ct. 1715 (2016); Tiblier v.
Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014); accord
Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.
2012); Cooper Tire & Rubber Co. v. Farese, 423
F.3d 446, 454 (5th Cir. 2005). “Factual disputes that
are irrelevant or unnecessary will not be counted.”
Tiblier, 743 F.3d at 1007 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“An issue is ‘genuine' if it is real
and substantial, as opposed to merely formal, pretended, or a
sham.” Hudspeth v. City of Shreveport, 270
Fed.Appx. 332, 334 (5th Cir. 2008) (quoting Bazan ex rel.
Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir.
2001)). Thus, a genuine issue of material fact exists
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Hefren, 820 F.3d at 771 (quoting Anderson,
477 U.S. at 248); Tiblier, 743 F.3d at 1007;
accord Haverda v. Hays Cty., 723 F.3d 586, 591 (5th
Cir. 2013). The moving party, however, “need not negate
the elements of the nonmovant's case.” Pioneer
Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511
(5th Cir. 2014); Bayle v. Allstate Ins. Co., 615
F.3d 350, 355 (5th Cir. 2010); Boudreaux, 402 F.3d
at 540 (citing Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994)).
proper motion has been made, the nonmoving party may not rest
upon mere allegations or denials in the pleadings but must
present affirmative evidence, setting forth specific facts,
to demonstrate the existence of a genuine issue for trial.
Celotex Corp., 477 U.S. at 322 n.3; see Beard v.
Banks, 548 U.S. 521, 529 (2006) (quoting Fed.R.Civ.P.
56(e)); Distribuidora Mari Jose, S.A. de C.V. v.
Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013).
The court “should review the record as a whole.”
Black v. Pan Am. Labs., LLC, 646 F.3d 254, 273 (5th
Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000)); see City of
Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014).
All the evidence must be construed in the light most
favorable to the nonmoving party, and the court will not
weigh the evidence or evaluate its credibility.
Reeves, 530 U.S. at 150; Tiblier, 743 F.3d
at 1007; see Hefren, 820 F.3d at 771. The evidence
of the nonmovant is to be believed, with all justifiable
inferences drawn and all reasonable doubts resolved in her
favor. Tolan v. Cotton, 572 U.S. 650, 651 (2014)
(citing Anderson, 477 U.S. at 255);
Hemphill, 805 F.3d at 538; Pioneer Expl.,
L.L.C., 767 F.3d at 511.
brought by an invitee against a possessor of land is a simple
negligence action. Corbin v. Safeway Stores, Inc.,
648 S.W.2d 292, 295 (Tex. 1983); Wilson v. N.W. Tex.
Healthcare Sys., Inc., 576 S.W.3d 844, 849 (Tex.
App.-Amarillo 2019, no pet.); Bowman v. Brookshire
Grocery Co., 317 S.W.3d 500, 503 (Tex. App.-Tyler 2010,
pet. denied). A negligence claim consists of four essential
elements: (1) a legal duty owed to the plaintiff by the
defendant; (2) a breach of that duty; (3) an actual injury to
the plaintiff; and (4) a showing that the breach was the
proximate cause of the injury. Eckhardt v. Qualitest
Pharm., Inc., 751 F.3d 674, 681 (5th Cir. 2014) (quoting
Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.
2006)); Espinoza v. Cargill Meat Sols. Corp., 622
F.3d 432, 443 (5th Cir. 2010); Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540-41 (5th Cir. 2005);
Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex.