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Pullins v. Bi-Lo Holdings, LLC

United States District Court, S.D. Georgia, Brunswick Division

October 23, 2017




         This matter comes before the Court on two different motions. First is the Defendants' Motion for Summary Judgment (Dkt. No. 33), and second is Plaintiff Bridgett Pullins's Motion for Reconsideration (Dkt. No. 34) of the Court's Order (Dkt. No. 27) ("December Order") dismissing Defendants Samson Merger Sub, LLC ("Samson") and Retained Subsidiary One, LLC ("Retained").[1]Both Motions are fully briefed and are now ripe for review. For the reasons stated below, Defendants' Motion is GRANTED and Plaintiff's Motion is DENIED.


         A. Events at Harvey's

         Plaintiff complains of actions that occurred when she was shopping at a Harvey's grocery store on December 6, 2013. Dkt. No. 6 ¶ 7; Dkt. No. 33-2, Ex. A. 32:22-33:21. While inside, she heard a "loud explosion" coming from a "floor buffing machine" then "jump[ed] backwards and f[e]ll back." Id. at 33:24-35:8. Nothing in the store physically touched her to make her fall. Id. at 36:23-37:1. Plaintiff has never heard such a noise inside that Harvey's store before or since. Id. at 38:21-39:3. After hearing the noise, Plaintiff lost her balance and fell over her daughter who was behind her. Id. at 37:2-9.

         B. Ownership of Harvey's

         The undisputed evidence in this case shows that J.H. Harvey Co., LLC owned the Harvey's Supermarket located at 955 South First Street in Jesup, Georgia in December 2013. Dkt. No. 33-4 5 3. While J.H. Harvey Co., LLC no longer exists, the evidence shows that its liabilities have been acquired by Retained. Dkt. No. 33-4 SISI 5, 9, Ex. 1.

         C. Procedural History

         Plaintiff sued Bi-Lo Holdings, LLC ("Bi-Lo"), Delhaize America, LLC ("Delhaize"), Southeastern Grocers, LLC d/b/a Harvey's Supermarket ("Southeastern"), and Samson on November 12, 2015 for actions that occurred at the Harvey's in Jesup, Georgia. Dkt. No. 1. On December 23, 2015, she amended her complaint to add Retained to the action. Dkt. No. 6. Defendants then filed a 12(b)(5) Motion to Dismiss on March 24, 2016, alleging that neither Samson nor Southeastern nor Retained was properly served. Dkt. No. 18. Plaintiff filed her reply on April 11, 2016, asking the Court to extend time for service of process because the supermarket's ownership was "confusing." Dkt. No. 20. Meanwhile, Retained was served on April 6, 2016, and Samson was served on April 11, 2016. Dkt. No. 34-2, 34-3.

         In asking the Court to excuse its failure to serve Defendants Samson and Retained, Plaintiff failed to mention that she had in fact served them. And no one alerted the Court of these facts by the time it decided that motion. So, this Court dismissed Plaintiff's claims against Southeastern, Retained, and Samson. Dkt. No. 27. In fact, when the Court issued its order on December 12, 2016, Defendants Retained and Samson had been served, unbeknownst to the Court. In light of that fact, Plaintiff asks the Court to reconsider its December Order dismissing Defendants Samson and Retained.

         On the same day that Plaintiff filed her motion for reconsideration, Defendants Bi-Lo and Delhaize moved for summary judgment. Both motions are now before the Court.


         A. Motion for Summary Judgment

         The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). The nonmovant may satisfy this burden in two ways. First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was 'overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)). Second, the nonmovant "may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary ...

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