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Newman v. Wal-Mart Stores East L.P.

United States District Court, M.D. Georgia, Valdosta Division

February 27, 2017

LIONEL NEWMAN, Plaintiff,
v.
WAL-MART STORES EAST, L.P. and ANDREW MCCAULEY, Defendants.

          ORDER

          HUGH LAWSON, SENIOR JUDGE

         This case is before the Court on Defendants' Motion for Summary Judgment (Doc. 17) and Plaintiff's Motion to Strike (Doc. 22). After reviewing the pleadings, affidavits, depositions, and other evidentiary materials presented, the Court grants in part and denies in part Defendants' Motion for Summary Judgment and denies Plaintiff's Motion to Strike.

         I. LOCAL RULE 56

         Before moving to the merits of the pending motions, the Court must address Plaintiff's failure to comply with Local Rule 56. The rule requires that a movant for summary judgment include with its motion and memorandum of law a separate, concise, numbered statement of the material facts as to which it contends there is no genuine issue to be tried. M.D. Ga. L.R. 56. The non-movant must then respond to the statement of material facts by objecting to, admitting, or specifically refuting each fact. Id. Pursuant to this rule, a non-movant's failure to refute the statement of material facts in this manner will result in the Court's deeming each of the movant's facts admitted, “unless otherwise inappropriate.” Id.

         Here, in responding to the Motion for Summary Judgment, Plaintiff failed to respond to Defendants' statement of undisputed material facts, instead filing his own separate statement of material disputed facts. (Doc. 19, pp. 17-19). The facts included in Plaintiff's statement were not supported by citations to the record. In their Reply Brief (Doc. 20) and Response to Plaintiff's Rule 6.5 Statement of Material Facts (Doc. 21), Defendants argue that their statement of facts should be deemed admitted because Plaintiff failed to comply with Local Rule 56.

         Local Rule 56 is intended to instruct the parties on how best to assist the Court in identifying genuine material facts which are in dispute. In the Eleventh Circuit, local rules are binding on the parties, but the enforcement of these rules must be “tempered with due consideration of the circumstances.” Cohen v. Carnival Cruise Lines, Inc., 782 F.2d 923, 924 (11th Cir. 1986). Here, the Court finds that the materials presented by the parties provide a sufficiently developed record for the adjudication of Defendants' motion for summary judgment, especially when considering that facts and reasonable inferences must be construed in favor of the non-moving party. Accordingly, the Court will consider Plaintiff's Rule 6.5 Statement of Material Facts in ruling on Defendants' Motion for Summary Judgment.

         II. MOTION TO STRIKE

         Plaintiff moves to strike Defendants' Response to Plaintiff's Rule 6.5 Statement of Facts, arguing that the response: (1) was untimely filed; (2) is not a pleading contemplated by the local rules; and (3) is essentially an attempt to file a second reply brief. (Doc. 22, ¶¶ 1-3).

         A motion to strike is governed by Rule 12(f) of the Federal Rules of Civil Procedure, which states, “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Pursuant to Rule 7(a) of the Federal Rules of Civil Procedure, “pleading” is a term of art that is limited to: a complaint; a third-party complaint; an answer to a complaint, counterclaim, crossclaim, or a third party complaint; and, if one is ordered by the Court, a reply to an answer. Fed.R.Civ.P. 7(a)(1)-(7). Defendants' Response to Plaintiff's Rule 6.5 Statement of Facts is not a pleading and, therefore, is not subject to a motion to strike. See Santana v. RCSH Operations, LLC, No. 10-61376-CIV, 2011 WL 690174, at *1 (S.D. Fla. Feb. 18, 2011) (“Accordingly, numerous courts in the Eleventh Circuit and elsewhere have held that a motion to strike filings (in whole or in part) that are not pleadings (as defined by Rule 7(a)) is improper.”). Therefore, on this basis alone, Plaintiff's motion to strike is improper.

         Even if the Court was to consider the merits of Plaintiff's motion to strike, it would be denied. As the Court previously explained, Plaintiff's Rule 6.5 Statement of Material Facts was filed in contravention of the local rules. In an “abundance of caution, ” Defendants filed a response to Plaintiff's Rule 6.5 Statement of Material Facts, denying each of the facts recited by Plaintiff and explaining the reasons for doing so. (Doc. 21). Upon consideration of the circumstances, the Court concludes that Defendants' Response to Plaintiff's Rule 6.5 Statement of Material Facts should be considered, and Plaintiff's Motion to Strike (Doc. 22) is DENIED.

         III. FACTUAL BACKGROUND

         At 1:10 p.m. on June, 29, 2013, Plaintiff Lionel Newman entered the Wal-Mart in Tifton, Georgia for the purpose of adding money to his debit card. (Dep. of Lionel Newman, pp. 24, 33, 37). As Plaintiff was exiting the store at 1:12 p.m., he slipped and fell, injuring himself. (Mot. for Summ. Judg., Exh. A; Dep. of Lionel Newman, p. 30). Plaintiff believes that he slipped as a result of water that was on the floor near the exit. (Dep. of Lionel Newman, p. 45). Although Plaintiff did not see any water on the ground before he fell, he noticed a long streak of water in the spot where he fell after he stood up. (Dep. of Lionel Newman, pp. 43, 45). Plaintiff does not know where the water came from but acknowledges that there was an ice machine in the vicinity of the exit. (Dep. of Lionel Newman, pp. 39, 44). As he was exiting, Plaintiff noticed that some ice cubes had spilled onto the rug in front of the ice machine, but he avoided that area as he made his way toward the store's exit. (Dep. of Lionel Newman, p. 39).

         At the time of Plaintiff's fall, Agnes Walker was the Store Greeter on duty working in the vestibule of the store that covered the entry and exit. (Walker Aff., ¶ 2). As a part of Ms. Walker's job, she monitored for spills or other hazards on the floor and either removed them immediately or placed warning cones in the area until the hazard could be removed. (Walker Aff., ¶ 5). Wal-Mart trained Ms. Walker to “zone” her area regularly, which entailed inspecting her work area to be sure there were no spills or hazards that might cause someone to trip and fall. (Walker Aff., ¶ 4). In addition to zoning, Ms. Walker was trained to conduct safety sweeps of her area throughout her shift, in which she ensured that her area was clean and safe. (Walker Aff., ¶ 4).

         At 12:45 p.m. on the day of Plaintiff's fall, Ms. Walker walked through the area where Plaintiff later fell. (Walker Aff., ¶ 7, Exh. B). She insists that she checked the floor at that time and it was clean and dry. (Walker Aff., ¶ 7). At 1:08 p.m., Ms. Walker was standing near the area where Plaintiff fell and claims that the floor was clean and dry. (Walker Aff., ¶ 8). Ms. Walker was not aware of any water on the floor until after Plaintiff slipped and fell. (Walker Aff., ¶ 9). She does not know where the water came from and does not believe that the water was present when she “checked the floor a few minutes before the incident.” (Walker Aff., ¶ 9). She ...


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