In Austin v. Kroger Texas LP, the Fifth Circuit reversed a summary judgment for the defendant in a slip-and-fall case. On the merits, among other holdings of general interest, the Court noted:
- “[A] janitor with fifteen years’ experience is competent to testify about the effectiveness of cleaning products and methods.”;
- When coupled with evidence from “Kroger’s handbook” and the manager’s testimony about “the safety practice at the store,” the plaintiff raised a fact issue;
- “[T]he fact that [Plaintiff] had successfuly cleaned a much smaller spill . . . with a dry mop does not conclusively demonstrate that Spill Magic was not necessary for [him] to safely clean a much larger and more serious spill.”
Procedurally, the Court instructed that the trial court should proceed under “the more flexible Rule 54(b)” on remand rather than “the heightened standard of Rule 59(e),” asking that it “construe the procedural rules with a preference toward resolving the case on the merits and avoiding any dismissal based on a technicality.” No. 16-10502 (April 14, 2017).
Several crawfishermen sued about the effects of canal dredging on the Atchafalaya Basin fisheries. As to one defendant company, the Fifth Circuit affirmed summary judgment in its favor, reviewing each of the documents cited by plaintiffs and finding that none raised a genuine issue of material fact as to actual dredging activity by that company, on the pipelines at issue in this case. As to another, the Court reversed on procedural grounds, finding that the district court should have considered a deposition transcript and responses to requests for admissions offered by the plaintiffs when (1) their proffer had a foundation in the terms of the case management order, (2) the evidence was probative, and (3) it was information obtained from that defendant. In re Louisiana Crawfish Producers, No. 16-30353 (March 28, 2017). (The opinion notes that crawfish are known by several other names, including “yabbies,” a tidbit that was not known to this author.)
Defendants moved for summary judgment, on the ground of qualified immunity, in a case arising from a fatal police shooting. The district court “disregarded the testimony of [Officer] Copeland and two eyewitnesses, finding that because there was ‘no video evidence of the actual shooting[,]’ the ‘testimony of Copeland, the eyewitness, and the 9-1-1 caller . . . should not be accepted until subjected to cross examination.'” The Fifth Circuit reversed; in addition to a ground based on qualfied immunity law, the Court held that under general Rule 56 principles: ”There is no evidence to suggest that the pair was biased, and the district court specifically found that the heirs ‘[did] not offer any evidence to contradict the eyewitnesses’ statements.’ Because their testimony was ‘uncontradicted and unimpeached,’ the district court was required to give it credence. Failure to do so amounted to an inappropriate ‘credibility determination.'” Orr v. Copeland, No. 16-50023 (Dec. 22, 2016).
In response to a summary judgment motion in a suit for unpaid overtime, plaintiff Garcia offered affidavit testimony that he “was told” certain favorable salary information. The record was unclear as to who told him that information. On appeal from an adverse ruling, the Court noted: “Garcia first argues that the district court erred by discounting, as hearsay, Garcia’s statement in his affidavit about what he was ‘told,’ because ‘taking the evidence in the light most favorable to Garcia, a party-opponent told Garcia this information.’ However, courts are not required to view evidence presented at summary judgment in the light most favorable to the nonmoving party on the question of admissibility; rather, ‘the content of summary judgment evidence must be generally admissible,’ and ‘[i]t is black-letter law that hearsay evidence cannot be considered on summary judgment’ for the truth of the matter asserted.” Garcia v. U Pull It Auto Truck Salvage, Inc., No. 16-20257 (Sept. 15, 2016, unpublished).
OTM, the owner of two boats, alleged a poor repair job by Diversified. The district court granted summary judgment for the defendant and the Fifth Circuit reversed, observing: “OTM concedes it has not attempted to prove the ‘precise cause’ of the engines’ malfunction; instead, it maintains it presented sufficient evidence to create the requisite
genuine dispute of material fact for whether the claimed substandard overhauls by Diversified caused the engines’ breakdown. . . . [A]t this stage, OTM is not required to prove exactly which part failed, or disprove that ‘the vessels’ other deteriorating parts or operator error’ was not the cause of the vessels’ breakdown . . . . ” Operaciones Tecnicas Marinas, SAS v. Diversified Marine Services, LLC, No. 15-30932 (Aug. 5, 2016, unpublished). The opinion illustrates the interaction between the requirements of Rule 56 and the requirement of Daubert case law that an expert adequately exclude alternative causes.
Nicholson worked for Securitas, a security staffing company. She sued about her reassignment from a position as a receptionist at a Securitas customer. The Fifth Circuit partially reversed a summary judgment for Securitas, noting: “If Securitas failed to follow its usual practices in responding to a client’s desire to have an employee removed, such a deviation can support Nicholson’s claim that the company should have known of the alleged discrimination.” Nicholson v. Securitas, No. 15-10582 (July 18, 2016).
Granados slipped and fell on a puddle in Wal-Mart. The evidence showed that “[p]rior to the slip, a Wal-Mart employee named Mercedes Acosta had been mopping the store’s checkout area. According to video surveillance of the incident, she briefly mopped the entrance of the aisle in which Granados slipped about five minutes prior to the incident, coming within approximately five feet of the puddle’s location with her torso generally facing it. At her deposition, Acosta testified that although she normally looks for puddles and other hazards while cleaning, she did not see the puddle in which Granados slipped when she mopped the aisle. No other witness testified to seeing the puddle. However, an assistant manager at the store who viewed the puddle after Granados slipped testified that someone actively looking for hazards ‘should have noticed the puddle from approximately five feet away if it were present.” Unfortunately for Granados, this evidence did not establish actual knowledge of the puddle, and also did not establish constructive knowledge under Texas law, which emphasizes how long the puddle has been in place (a fact as to which she had no proof). Granados v. Wal-Mart Stores, Inc., No. 15-10837 (June 30, 2016, unpublished).
Fannie Mae foreclosed on an apartment complex, in part because its management allowed six liens to attach to the property in breach of the loan documents. Self, a guarantor sued for the remaining deficiency, sought discovery about the validity of the liens. The Fifth Circuit agreed with the district court that this request was not a reason for continuance of a ruling on Fannie Mae’s summary judgment motion: “[E]ven if Self could establish that the liens were paid off or expired, such information would not negate his failure to timely secure the release of record of the liens or otherwise timely cure the liens as required under the plain and unambiguous language in the parties’ loan documents.” Fannie Mae v. Self, No. 15-20466 (July 6, 2016, unpublished).
Building on Wooten v. McDonald Transit Associates, Inc., 788 F.3d 490 (5th Cir. 2015), the Fifth Circuit found that a pro se plaintiff had adequately pleaded an ADEA claim in Haskett v. T.S. Dudley Land Co., No. 14-41459 (May 20, 2016, unpublished). Haskett attached his employer’s response to his EEOC charge as an exhibit to his complaint, and the employer argued that the statements in that response negated Haskett’s claim. The Court disagreed: “Haskett clearly did not adopt [his employer’s] allegations to the EEOC as his own for purposes of his complaint. They are therefore still ‘unilateral’ and to the extent they are in tension with the complaint itself, they cannot control.” (citing Bosarge v. Mississippi Bureau of Narcotics, 796 F.3d 435, 440 (5th Cir. 2015)).
Dickson guaranteed a large debt owed by Community Home Financial Services. Community went into bankruptcy, disputing the extent and validity of its obligations to its lenders. Unfortunately for Dickson, his guaranty not only waived all defenses to enforcement, and stated that it created an obligation independent of Community’s, but also said it was not changed “by the partial or complete unenforceability or invalidity” of the guaranteed obligation. He also disputed the amount owing, but the Fifth Circuit agreed that the affidavit evidence he submitted “contained only another set of allegations” and did not preclude summary judgment against him. Edwards Family Partnership LP v. Dickson, No. 15-60683 (April 29, 2016).
The parties in DFW Airport Board v. Inet Aiport Systems sued each other about problems in the installation of rooftop air conditioning units. Key issues were “who breached first” and whether the parties had a meeting of the minds about a solution; the evidence consisted of a fast-moving, complicated exchange of emails and letters. The Fifth Circuit reversed a summary judgment, noting: “In these circumstances the Contract required both parties to participate in resolving defects. Any contractual modification or change order required the mutual assent of the parties, and questions of mutual assent are fact based. Sifting through the evidence to determine whether the parties reached agreement on a contractual modification is a task ill-suited for summary judgment on this record.” Nos. 15-10390, 15-10600 (April 12, 2016).
Mutual of Omaha obtained a summary judgment against Prospect, who complained under Fed. R. Civ. P. 56(d) that it needed “additional electronic discovery related to allegedly backdated documents produced by Mutual.” The Fifth Circuit declined to enter that wild kingdom, observing: “[T]he magistrate judge denied Prospect’s motion to compel that electronic discovery, and Prospect did not object to the denial. That means that the electronic discovery was not ‘susceptible of collection within a reasonable time frame’ —Prospect was never
going to get it—so it cannot support Prospect’s Rule 56(d) motion.” Prospect Capital v. Mutual of Omaha, No. 15-20345 (April 13, 2016).
Appellant “Why Not LLC” (unfortunately, not the appellee, despite the perfect name for that side of an appeal) complained of a frozen yogurt franchise termination by Yumilicious. The district court granted summary judgment on Why Not’s many causes of action, and the Fifth Circuit affirmed, principally on grounds relating to Yumilicious’s lack of intent and the terms of the franchise agreement. In the course of doing so, the opinion offers a primer on commonly-litigated issues about basic business torts in Texas. The Court observed that Why Not’s pleading had presented “a large serving of claims and counterclaims piled precariously together,” and concluded: “This saccharine swirl of counterclaims suggests that litigants, like fro-yo fans, should seek quality over quantity.” Yumilicious v. Barrie, No. 15-10508 (April 6, 2016). (The opinion is silent as to whether Why Not has any relation to the left fielder on Bud Abbott’s famous baseball team.)
The Fifth Circuit issued a revised opinon in Kovaly v. Wal-Mart Stores, No. 14-20697 (Sept. 22, 2015, unpublished). The new opinion reaches the same result — reversal of the Daubert exclusion of an expert about the standard of care for a Texas pharmacist asked to issue a 72-hour emergency prescription. It provides more detail about the expert’s analysis, eliminating some uncertainty in the original opinion about the role of Texas regulations in the expert’s work: “Brooke specifically analyzed how the various regulations overlap and how the history of the regulations led to the codification of particular exceptions but not others. He explained that his opinion was based not only on the regulations but also on their history, accepted practice, and pharmacist training.”
A security company required that its employees travel to a designated break location at lunchtime, substantially eating into their 30-minute lunch break. The Fifth Circuit reversed summary judgment for the company on FLSA claims, reasoning: “Unlike a requirement that the employee stay in uniform, or even one that may result in the employee having to perform a duty on rare occasions, a jury could find that preventing the employee from eating—ostensibly the main purpose of the break—for twelve out of thirty minutes during every break is a meaningful limitation on the employee’s freedom. The travel obligation thus cannot be deemed a mere ‘inconvenience’ as a matter of law.” Naylor v. Securiguard, Inc., No. 14-60637 (Sept. 15, 2015). Whether the “40 percent rule” carries over to other areas of summary judgment practice remains to be seen, but Naylor still stands as a cogent and highly readable review of a basic part of the modern workplace.