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Bagley v. Dollar Tree Stores, Inc.

United States District Court, E.D. Texas

December 2, 2019

VIRGINIA BAGLEY, Plaintiff,
v.
DOLLAR TREE STORES, INC., Defendant.

          MEMORANDUM AND ORDER

          MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. Background

         This 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.

         II. Timeliness of Bagley's Response

         The 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).

         Here, 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.

         III. Summary Judgment Standard

         A party 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).

         “A 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)).

         Once a 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.

         IV. Premises Liability

         A suit 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. 2013).

         A. Du ...


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