United States District Court, E.D. Texas, Sherman Division
TRESHAWN STEWART, INDIVIDUALLY, EDWIN STEWART, JR., INDIVIDUALLY, AND A/N/F OF K.S., A MINOR Plaintiffs,
LADYBIRD MCKINNEY, LLC D/B/A GENIUS CHILD ACADEMY Defendants.
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's Motion for Summary
Judgment (Dkt. #17). Having considered the motion and the
relevant pleadings, the Court finds that Defendant's
Motion should be DENIED.
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). Once 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 of 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.
moved for summary judgment arguing that the Court should
dismiss Plaintiffs' claims because Plaintiffs'
“have no evidence that (a) a Genius Child Academy
employee with HSV-1 used her personal lip balm on K.S., (b)
an employee's application of lip balm proximately caused
K.S. to contract HSV-1, or (c) Genius Child Academy's
conduct involved an extreme risk of harm, and Genius Child
Academy had awareness of the risk” (Dkt. #17). After a
careful review of the record and the arguments presented, the
Court is not convinced that Defendant has met its burden
demonstrating that there is no material issue of fact as to
Plaintiffs' claims entitling it to judgment as a matter
of law. Accordingly, the Court finds that Defendant's
Motion for Summary Judgement should be denied.
Plaintiffs' Request for Relief under 56(f) is denied as
moot. This is not to say that the Court will not extend the
discovery deadline should such a request be filed; it is only
to say that a request for a continuance regarding
Defendant's Motion is no longer necessary given the
Court's denial of Defendant's Motion.
therefore ORDERED that Defendant's
Motion for Summary Judgment ...