United States District Court, S.D. Alabama, Southern Division
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
action is before the Court on the Motion for Summary Judgment
under Federal Rule of Civil Procedure 56 (Doc. 50) and
separate memorandum and exhibits in support (Doc. 51) filed
by Defendants Higbee SALVA, L.P., on behalf of Dillard's
Inc. (“Dillard's”). Plaintiff Linda
Black-Marshall (“Marshall”) has timely filed a
response (Doc. 54), supported by exhibits, in opposition to
the motion, and Dillard's has timely filed a reply and
supporting exhibits (Doc. 56) to the response. The motion is
now under submission (See Doc. 52) and is ripe for
consent of the parties, the Court has designated the
undersigned Magistrate Judge to conduct all proceedings in
this civil action, in accordance with 28 U.S.C. §
636(c), Federal Rule of Civil Procedure 73, and S.D. Ala.
GenLR 73. (See Docs. 9, 11). Upon consideration, the
Court finds that Dillard's Motion for Summary Judgment
(Doc. 50) is due to be GRANTED in part and
DENIED in part.
Applicable Legal Standards
party may move for summary judgment, identifying each claim
or defense--or the part of each claim or defense--on which
summary judgment is sought. The court shall grant summary
judgment 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).
“An issue of fact is ‘material' if it might
affect the outcome of the suit under governing law and it is
‘genuine' if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d
1287, 1294 (11th Cir. 2013) (quotations omitted).
“Summary judgment is only appropriate if a case is
‘so one-sided that one party must prevail as a matter
of law.' ” Quigg v. Thomas Cty. Sch.
Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)) (citation omitted). However, a “
‘mere scintilla' of evidence is insufficient; the
non-moving party must produce substantial evidence in order
to defeat a motion for summary judgment.”
Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th
Cir. 2009) (per curiam). In other words, “there must be
enough of a showing that the jury could reasonably find for
that party … Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.” Allen
v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)
are required to view the facts and draw reasonable inferences
in the light most favorable to the party opposing the summary
judgment motion.” Jackson v. West,
787 F.3d 1345, 1352 (11th Cir. 2015) (quoting Scott v.
Harris, 550 U.S. 372, 378 (2007) (alteration adopted)
(quotations omitted)). See also Allen, 121 F.3d 642,
646 (11th Cir. 1997) (“The evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn in his favor.” (quotations omitted)). “The
Court ‘must avoid weighing conflicting evidence or
making credibility determinations.' ” Ave. CLO
Fund, 723 F.3d at 1294 (quoting Stewart v. Booker T.
Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000)).
However, “ ‘an inference based on speculation and
conjecture is not reasonable.' ” Id.
(quoting Blackston v. Shook & Fletcher Insulation
Co., 764 F.2d 1480, 1482 (11th Cir. 1985)).
as here, the non-moving party bears the burden of proof on an
issue at trial, the moving party, in order to prevail, must
do one of two things: show that the non-moving party has no
evidence to support its case, or present ‘affirmative
evidence demonstrating that the nonmoving party will be
unable to prove its case at trial.' ” Hammer v.
Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quoting
United States v. Four Parcels of Real Property, 941
F.2d 1428, 1437-38 (11th Cir. 1991) (en banc)). “Once
the movant adequately supports its motion, the burden shifts
to the nonmoving party to show that specific facts exist that
raise a genuine issue for trial.” Dietz v.
Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir.
2010). “For issues on which the non-moving party will
bear the burden of proof at trial, the non-moving party must
either point to evidence in the record or present additional
evidence ‘sufficient to withstand a directed verdict
motion at trial based on the alleged evidentiary
deficiency.' ” Hammer, 20 F.3d at 1141
(quoting Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993)).
party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A)
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). “The
nonmoving party may avail itself of all facts and justifiable
inferences in the record taken as a whole.”
Allen, 121 F.3d at 646 (quotation omitted).
“If reasonable minds could differ on the inferences
arising from undisputed facts, then a court should deny
summary judgment.” Id. (quotation omitted).
“Conclusory allegations and speculation are
insufficient to create a genuine issue of material
fact.” Valderrama v. Rousseau, 780 F.3d 1108,
1112 (11th Cir. 2015) (citing Cordoba v. Dillard's
Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)
(“Speculation does not create a genuine issue of fact;
instead, it creates a false issue, the demolition of which is
a primary goal of summary judgment.”)).
“ ‘[t]here is no burden upon the district court
to distill every potential argument that could be made based
on the materials before it on summary judgment. Rather, the
onus is upon the parties to formulate arguments; grounds
alleged in the complaint but not relied upon in summary
judgment are deemed abandoned.' ” Solutia, Inc.
v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012)
(per curiam) (quoting Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc)).
Relatedly, while “it may consider other materials in
the record[, ]” the “court
only the cited
materials…” Fed.R.Civ.P. 56(c)(3) (emphasis
a resident of Habersham County, Georgia, was visiting her
family on the date of the incident. On March 30, 2018,
Marshall took her two granddaughters shopping at
Dillard's in Bel Air Mall located in Mobile, Alabama.
While in the children's clothing department at the
display table, Marshall walked between a ballet bar and the
display table, turned clockwise and tripped over a horizontal
foot of the ballet bar retail clothing display. This resulted
in a fall where she “went spiraling” to the
floor. (Doc. 51-1 at 11). Among other injuries, Marshall
suffered a broken left hip that was surgically replaced the
following day. (Doc. 54-1 at 28).
commenced this civil case on June 13, 2018 in the Circuit
Court of Mobile County. She alleges negligence and wantonness
in her complaint. (See Doc. 1-1) After amending the
complaint and properly adding Higbee SALVA, L.P. as a party,
Dillard's was properly served on July 5, 2018.
Dillard's filed notice of removal on July 18, 2018,
pursuant to U.S.C. §§ 1332, 1441 and