     Case: 10-31041     Document: 00511509556          Page: 1    Date Filed: 06/15/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 15, 2011
                                     No. 10-31041
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MARSHA R. BEVERLY,

                                                   Plaintiff–Appellant
v.

WAL-MART STORES, INCORPORATED; WAL-MART LOUISIANA, LIMITED
LIABILITY CORPORATION,

                                                   Defendants–Appellees


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:07–CV–560


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant Marsha R. Beverly (“Beverly”) brought suit against
Defendants–Appellees Wal-Mart Stores, Inc. and Wal-Mart Louisiana, L.L.C.
(“Wal-Mart”) after injuring herself in a Wal-Mart store. After the case was
removed from state court based on diversity of citizenship, the federal district
court granted summary judgment for Wal-Mart and then denied Beverly’s
motion for reconsideration filed under F ED. R. C IV. P. 59(e). We AFFIRM.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 10-31041

                                        I
      This case arises out of the personal injury Beverly sustained on July 21,
2006, while shopping at a Wal-Mart in East Baton Rouge, Louisiana. That day,
Beverly and her daughter walked into Wal-Mart (Store #839) and proceeded
through the store’s middle aisle, whereupon Beverly “slipped and fell on a puddle
of unidentified clear liquid” that may have leaked from a display bin of baby
soap. Beverly brought suit against Wal-Mart in state court, seeking damages for
her injuries. Beverly’s negligence claim alleged that the clear liquid puddle
constituted a hazardous condition that Wal-Mart knew of, or should have known
of, and that Wal-Mart allowed the puddle to remain on the floor for an
unreasonable period of time despite knowing of the condition.          Wal-Mart
removed the matter to federal district court based on the parties’ diversity of
citizenship.
      The court’s scheduling order required that “[a]ll fact discovery shall be
completed . . . by May 30, 2008.”     On March 11, twelve weeks before the
discovery deadline, Wal-Mart moved for summary judgment; Beverly did not file
a response. In light of Beverly’s failure to file a memorandum in opposition, the
district court deemed Wal-Mart’s summary judgment motion to be unopposed,
and, after reviewing the record, found that no genuine issues of material fact
existed on Beverly’s negligence claim. The court granted summary judgment for
Wal-Mart accordingly.
      Eight days later, Beverly moved the district court to reconsider its
summary judgment ruling, invoking F ED. R. C IV. P. 59(e). In addition to her
reconsideration request, Beverly submitted—for the first time— a memorandum
opposing Wal-Mart’s motion for summary judgment, with several supporting
documents attached. One of these was an affidavit from Beverly’s daughter,
Latisha Flowers, who was present at the time of the accident.



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      The district court denied Beverly’s reconsideration request, finding that
her motion failed to satisfy any of the requirements for obtaining relief under
Rule 59(e). In addition, the court indicated that it had reviewed Beverly’s
memorandum in opposition and supporting documents, and found that Beverly
still had not shown the existence of any disputed issues of material fact on her
negligence claim.
      Beverly timely appealed and now argues that: (i) the district court should
have afforded her additional time to conduct discovery before ruling on Wal-
Mart’s summary judgment motion; and (ii) the district court erred in denying
Beverly’s reconsideration request in light of the documents she attached to her
memorandum opposing Wal-Mart’s motion for summary judgment.
                                        II
      We review the district court’s decision to limit discovery for abuse of
discretion. See Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 444 (5th Cir.
2001).   “If it reasonably appears that further discovery would not produce
evidence creating a genuine issue of material fact, the district court’s preclusion
of further discovery prior to entering summary judgment is not an abuse of
discretion.” Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992
F.2d 1398, 1401 (5th Cir. 1992) (citations omitted).
      In contrast, we review the district court’s denial of Beverly’s motion for
reconsideration de novo. See Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324
(5th Cir. 1994). Where a party seeking reconsideration under F ED. R. C IV. P.
59(e) attaches new materials to its motion for reconsideration that were not
presented to the district court when the court initially ruled on the motion for
summary judgment, the district court may consider the new materials at its
discretion. See Fields v. City of S. Houston, 922 F.2d 1183, 1188 (5th Cir. 1991).
We review the court’s decision on whether to consider the new materials for
abuse of discretion. Id. We review the actual challenge to the district court’s

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summary judgment de novo, however, because that determination is an issue of
law. Id.
                                        A
      At the outset, we note that Beverly’s brief concedes, in several places, her
inability to establish a genuine dispute over the material facts essential to her
negligence claim. See Appellant’s Br. at iii, 6, 11, and 14. Ordinarily, this
failure of proof would prove fatal. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (“[A] complete failure of proof concerning an essential element of the
nonmoving party’s cause necessarily renders all other facts immaterial.”). But
Beverly argues that summary judgment was improper, nonetheless, because she
made a sufficient showing of why additional discovery was necessary such that
the district court should have allowed her more time for discovery before ruling
on Wal-Mart’s summary judgment motion.
      In considering a motion for summary judgment, the district court has
discretion to, inter alia, defer ruling on the motion or allow the nonmoving party
additional time to obtain further discovery if the nonmovant “shows by affidavit
or declaration that, for specified reasons, it cannot present facts essential to
justify its opposition.” F ED. R. C IV. P. 56(d). We have observed that Rule 56(d)
motions are generally favored and should be liberally granted.           See Int’l
Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1267 (5th Cir. 1991). To obtain a
continuance of a motion for summary judgment for discovery purposes, however,
“a party must set forth some statement to the court indicating why additional
discovery is necessary and ‘how additional discovery will create a genuine issue
of material fact.’” Canady, 240 F.3d at 445 (citing Leatherman v. Tarrant Cnty.
Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1395 (5th Cir.
1994)).
      Here, Beverly contends that she needed additional time to locate and
depose two former Wal-Mart employees, Brian Zeno and Kiffany Henderson,

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both of whom had either investigated or had knowledge relating to her accident.
See Appellant’s Br. at 9–11, 13. Beverly also claims that she needed additional
time to depose those members of the Wal-Mart day maintenance crew who were
working at Store #839 in July 2006. See Appellant’s Br. at 14. We find these
contentions unavailing.
      Beverly fails to explain what testimony, if any, Henderson or the members
of the day maintenance crew would have provided that would have justified the
district court in suspending decision on the summary judgment motion, or that
would have created a genuine issue for trial. Her conclusory assertion that “she
was unable to present facts essential to defend against” Wal-Mart’s summary
judgment motion is without foundation.
      With respect to Brian Zeno, the assistant manager who investigated the
accident, Beverly speculates that “she expected that Brian Zeno would be able to
testify to the size of the puddle of liquid, its consistency and appearance, and
possibly identify the substance itself.” Appellant’s Br. at 13 (emphasis added).
Such a claim, without more, is insufficient to show an abuse of discretion. See
Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 1123 (5th Cir.
1988) (per curiam) (“A claim that further discovery or a trial might reveal facts
which the plaintiff is currently unaware of is insufficient to defeat [a summary
judgment] motion.”). Moreover, Beverly failed to tell the district court what
progress, if any, she had made in locating Zeno, which could have been helpful
in assessing the reasonableness of any further delay. And lastly, as Wal-Mart
correctly argues, Beverly’s belief that Zeno could identify the clear liquid
substance at issue has no bearing on the issue of notice (i.e., whether Wal-Mart
knew, actually or constructively, that the puddle was on the floor for some period
of time before Beverly’s fall).
      Beverly has not shown that additional discovery was necessary or would
have created a genuine issue of material fact for trial. See Canady, 240 F.3d at

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445. Based on these facts, we conclude that the district court did not abuse its
discretion in denying Beverly additional time to conduct further discovery and
ruling on Wal-Mart’s summary judgment motion as it did.
                                        B
      Beverly also contends that the district court erred in denying her motion
for reconsideration in light of the documents she attached to her memorandum
opposing Wal-Mart’s summary judgment request.
      In Louisiana, merchants are required to exercise reasonable care to keep
their premises in safe condition for those who enter. See L A. R. S. 9:2800.6(A).
This duty, however, does not impose absolute liability on a merchant whenever
an accident happens. See Pena v. Delchamps, Inc., 960 So.2d 988, 991 (La. Ct.
App. 2007). To prove a negligence claim against a merchant for damages as a
result of an injury, death, or other loss sustained because of a fall due to a
condition existing on the merchant’s premises, the claimant must show that:
      (1)   The condition presented an unreasonable risk of harm to the
            claimant and that risk of harm was reasonably foreseeable;

      (2)   The merchant either created or had actual or constructive
            notice of the condition which caused the damage, prior to the
            occurrence; and

      (3)   The merchant failed to exercise reasonable care.

L A. R. S. 9:2800.6(B) (emphasis added). The claimant must satisfy all three
elements to make out a prima facie negligence claim and withstand summary
dismissal. Id. Here, Beverly does not claim that Wal-Mart had actual notice of
the puddle that caused her injury; her claim turns on whether Wal-Mart had
constructive notice of the condition.
      The Louisiana Supreme Court has repeatedly considered the issue of
constructive notice as defined by statute, observing that such notice plainly
includes a temporal element. See, e.g., White v. Wal-Mart Stores, 699 So.2d
1081, 1084–85 (La. 1997) (“A claimant who simply shows that the condition

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                                   No. 10-31041

existed without an additional showing that the condition existed for some time
before the fall has not carried the burden of proving constructive notice as
mandated by the statute.       Though the time period need not be specific in
minutes or hours, constructive notice requires that the claimant prove the
condition existed for some time period prior to the fall.”); see also Kennedy v.
Wal-Mart Stores, Inc., 733 So.2d 1188, 1191 (La. 1999) (“[P]laintiff presented
absolutely no evidence as to the length of time the puddle was on the floor before
his accident. Therefore, plaintiff did not carry his burden of proving Wal-Mart’s
constructive knowledge of the condition.”).
      The record contains nothing by which to infer that Wal-Mart was on
constructive notice of the puddle that caused Beverly’s fall. In her deposition,
Beverly described slipping on a clear liquid substance that included dirt specks
from where her shoes had passed through; she was unable to say how long the
liquid had been on the floor otherwise. Elsewhere, Beverly had estimated that
the puddle was approximately the size of a dinner saucer. Beverly’s daughter,
Latisha Flowers, provided an affidavit in which she described watching a janitor
cleaning up the puddle and seeing “a liquid substance on his paper towel.” And
lastly, Brian Zeno’s incident report described the puddle as “something smered
[sic] on the floor.” In essence, Beverly presented no evidence that the liquid was
on the floor for any length of time, and the totality of evidence set out above falls
far short of carrying the burden of proof on the element of constructive notice.
Because Beverly has the burden of proving all three elements as required by L A.
R. S. 9:8200.6(B), her failure to prove the second, temporal element is fatal to
her negligence claim.




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                                       No. 10-31041

                                             III
       For the foregoing reasons, the district court’s grant of summary
judgment for Wal-Mart, and the court’s denial of Beverly’s motion for
reconsideration of judgment, are AFFIRMED.1




       1
        Beverly argues alternatively that if her case proceeds to trial, she may be entitled to
an instruction regarding Wal-Mart’s alleged spoilation of evidence. We have considered this
contention and find it to be without merit.

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