              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                          ___________________

                             No. 95-20950
                           Summary Calendar




TOMMY J. CHANEY,
                                           Plaintiff-Appellant,

     versus

DOW CHEMICAL COMPANY,
                                           Defendant-Appellee.


        ________________________________________________

      Appeal from the United States District Court for the
               for the Southern District of Texas
                         (CA-H-93-3482)
        ________________________________________________

                         October 8, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*

GARWOOD, Circuit Judge:

     In this Texas law diversity case, plaintiff-Appellant Tommy J.

Chaney (Chaney) appeals the district court’s grant of summary

judgment in favor of Defendant-Appellee Dow Chemical Company (Dow)

on his premises liability claim.    We affirm.

                   Facts and Proceedings Below

     On September 26, 1991, Chaney was allegedly injured while


*
       Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
riding in the back of a truck on the premises of a Dow facility.

At   the   time,   Chaney     was   employed       by    Breazeale   Contractors

(Breazeale), an independent contractor hired by Dow, and the truck

was operated by Breazeale. Chaney alleges that he was injured when

the truck in which he was riding crossed a set of railroad tracks

on the Dow property which was either under construction or poorly

maintained resulting in his being jolted about and thrown from the

truck bed.

      Chaney originally filed this suit in the Texas state courts on

September 24, 1993, although the case was later removed by Dow to

the United States District Court for the Southern District of

Texas, Houston Division on the basis of diversity.                   The parties

consented to proceed before a magistrate judge pursuant to 28

U.S.C. § 636(c).    Dow moved for summary judgment, and a hearing was

held before the magistrate judge on June 15, 1994.

      At   the   conclusion    of   the       hearing,   the   magistrate   judge

instructed the parties to submit any additional materials that they

wished to have considered no later than June 22.                 Chaney elected

not to submit any supplemental materials, while Dow requested a

one-day extension which was granted and submitted a supplemental

memorandum and affidavit to the court on June 23.               By order entered

July 21, 1995, the magistrate judge granted summary judgment in

favor of Dow on the grounds that Chaney had failed to produce any

evidence of the existence of an unreasonably dangerous condition on

Dow’s premises.     Chaney, represented by counsel below but acting

                                          2
pro se in this Court, now brings this appeal.




                                3
                            Discussion

I.   Procedural Issues

     Chaney raises several points of error with respect to the

summary judgment procedure employed below.       We address these

arguments seriatim.

     First, Chaney notes that Federal Rule of Civil Procedure 56(c)

requires that judgment be rendered “forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact,” and argues that therefore the

district court erred in allowing extra time for the parties to

supplement their submissions following the summary judgment hearing

before ruling on the motion.   In other words, Chaney argues that

Rule 56(c) requires that the movant be entitled to summary judgment

at the time of the hearing, and that no additional time to

supplement the record may be granted prior to ruling on the motion.

Chaney cites no authority for this novel and overly literal reading

of the requirements imposed by Rule 56(c) which we hereby reject.

     Chaney next argues that the district court erred in basing its

summary judgment on Dow’s supplemental submissions which Chaney was

not permitted to oppose because of the magistrate judge’s June 22

deadline for tendering additional materials to the court, thereby

violating Rule 56(c)’s requirement that “[t]he motion shall be


                                4
served at least 10 days before the time fixed for the hearing.”

This argument is flawed in several respects.                 First, the arguments

presented in the supplemental memorandum were previously presented

in Dow’s Reply to Plaintiff’s Response to Dow’s Motion for Summary

Judgment and Motion to Strike which was filed on December 1, 1994,

thereby   providing     Chaney    with   more       than    adequate    notice   and

opportunity   to   counter       Dow’s       motion    for    summary    judgment.

Furthermore, the magistrate judge did not enter her order granting

summary judgment until July 21, 1995.                 The record reflects that

Chaney made no request for an opportunity to respond to Dow’s

supplemental memorandum during the intervening period between the

filing of the memorandum on June 23, 1995 and the entry of the

court’s order on July 21, 1995. The intervening period between the

filing of Dow’s supplemental memorandum and the entry of the

court’s order provided Chaney with the notice required by Rule

56(c) and the opportunity to respond had he chosen to do so.                     See,

Enplanar,   Inc.   v.    Marsh,    11        F.3d   1284,    1293   &   n.11     (5th

Cir.)(supplemental memorandum filed two months before entry of

summary judgment satisfied notice requirement of Rule 56(c)), cert.

denied, 115 S.Ct. 312 (1994).1


1
       Chaney additionally complains that Dow did not serve him
with notice of its request for an extension of time to file its
supplemental materials with the court, and that the district court
erred in granting such an extension without allowing Chaney the
opportunity to oppose the request. Contrary to Chaney’s
representations, the record reflects that a certificate of service
was filed along with Dow’s request for an extension of time. Nor

                                         5
      Chaney next argues that the district court erred in relying

upon the affidavit of Dave Turner, Supervisor of the Roads and

Bridges Department for Dow’s Texas operations, which was submitted

along with Dow’s supplemental memorandum.                    In particular, Chaney

argues that Turner’s affidavit is not competent summary judgment

evidence   because     it   makes    reference          to   an   investigation    not

attached to the affidavit as required by Rule 56(e) which provides,

“[s]worn or     certified    copies    of       all     papers    or   parts   thereof

referred to in an affidavit shall be attached thereto or served

therewith.”     Despite the magistrate judge’s statement in her order

that she had reviewed “Defendant’s supplement and all exhibits,”

Turner’s affidavit was in no way essential to the magistrate

judge’s grant of summary judgment in favor of Dow which was based

upon the absence of any evidence to support the existence of an

unreasonably dangerous condition on Dow’s premises.                      Dow was not

required   to   come   forward      with       direct    evidence      regarding   the

condition of the crossing so as to negate Chaney’s allegations.

Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996).

II.   Summary Judgment Claim




did the district court err in granting Dow’s request as Federal
Rule of Civil Procedure 6(b) expressly provides: “When by these
rules or by a notice given thereunder or by order of court an act
is required or allowed to be done at or within a specified time,
the court for cause shown may at any time in its discretion (1)
with or without motion or notice order the period enlarged if
request therefor is made before the expiration of the period
originally prescribed....” (Emphasis added).

                                           6
       We review the grant of a motion for summary judgment de novo,

applying the same standard employed by the district court.    Baker

v. Putnal, 75 F.3d 190, 197 (5th Cir. 1996).       In reviewing the

evidence, the facts and inferences to be drawn from them must be

viewed in the light most favorable to the nonmovant.    Id. at 198.

“We do not affirm a summary judgment unless we conclude, after an

independent review of the record, that ‘there is no genuine issue

as to any material fact and that the moving party is entitled to a

judgment as a matter of law.’” Thornton, Summers, Biechlin, Dunham

& Brown, Inc. v. Cook Paint & Varnish, 82 F.3d 114, 116 (quoting

Fed. R. Civ. P. 56(c)).

        The initial burden lies with the movant to establish the

absence of any genuine issue of material fact “by informing the

court of the basis for its motion, and by identifying portions of

the record which highlight the absence of genuine factual issues.”

Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758, 762

(5th Cir. 1996)(quoting Topalian v. Ehrman, 954 F.2d 1125, 1131

(5th Cir. 1992), cert. denied, 113 S.Ct. 82 (1992)).    In order to

meet this burden, the movant need not negate the elements of claims

on which the nonmovant would bear the burden of proof at trial, but

need only point out with respect to such elements the absence of

evidence supporting the nonmovant’s claims.      Stults, 76 F.3d at

656.    If the movant meets this initial burden, the burden then

shifts to the nonmovant to produce evidence or designate specific

                                  7
facts in the record demonstrating the existence of a genuine issue

for trial.     Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334,

1338 (5th Cir. 1996); Rizzo, 84 F.3d at 762.                 “[C]onclusory

allegations,    speculation,   and       unsubstantiated   assertions   are

inadequate to satisfy the nonmovant’s burden.”         Douglass v. United

Serv. Automobile Assn., 79 F.3d 1415, 1429 (5th Cir. 1996)(en

banc); see also, Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047

(5th Cir. 1996).

       Under Texas law, the elements of a premises liability claim

are:

       “(1) Actual or constructive knowledge of some
            condition    on    the    premises   by    the
            owner/operator;
        (2) That the condition posed an unreasonable risk
            of harm;
        (3) That the owner/operator did not exercise
            reasonable care to reduce or eliminate the
            risk;
        (4) That the owner/operator’s failure to use such
            care   proximately   caused   the  plaintiff’s
            injuries. Keetch v. Kroger, 845 S.W.2d 262,
            264 (Tex. 1992).

As discussed previously, the magistrate judge based her decision to

grant summary judgment in favor of Dow on Chaney’s failure to

produce any evidence of the existence of an unreasonably dangerous

condition on Dow’s premises.    We agree with the magistrate judge’s

analysis of this question.

       In its Reply to Plaintiff’s Response to Dow’s Motion for

Summary Judgment and Motion to Strike and in its supplemental

memorandum, Dow points out the complete absence of any evidence to

                                     8
substantiate    Chaney’s       claim   that   an    unreasonably        dangerous

condition existed on Dow’s premises, other than Chaney’s own

speculation that the truck would not have jolted so severely had

there not been a defect in the crossing.                Having pointed to the

lack of evidence to support this necessary element of Chaney’s

claim, the burden shifted to Chaney to produce evidence sufficient

to raise a genuine issue for trial.                See Stults, supra.        The

magistrate judge properly concluded that Chaney failed to carry his

burden on this element.

     The record reflects that Chaney could neither identify the

particular crossing in question nor produce any other witness who

could do so.        In addition, Chaney acknowledged that he had not

examined the crossing following the accident to determine if in

fact any defect existed.2        Again, Chaney was similarly unable to

produce any other witness who could identify any defect in the

crossing.    Chaney stated at the summary judgment hearing that Dow


2
           Chaney    offered   the   following     at   the   summary   judgment
hearing:

     “THE COURT:         After you were thrown
                         from the truck, did you
                         get out and go back up
                         the little rise and look
                         at the railroad tracks?
     MR.   CHANEY:       No.
     THE   COURT:        You did not.
     Mr.   CHANEY:       Huh-uh.
     THE   COURT:        So you just generally saw
                         the    tracks   on    the
                         property that day.
     MR. CHANEY:         Yeah.”

                                       9
had been performing construction on railroad crossings in other

parts of the facility, although he admitted that he did not know

whether construction was being performed on the particular crossing

at issue.    Chaney surmised that there must have been construction

at this particular crossing to account for the lurching of the

truck which resulted in his injury.3 This was the sum total of the


3
       Chaney’s statements in this regard at the summary judgment
hearing were as follows:

     “THE COURT:      And you say there is a
                      dip between the rails
                      because you felt it when
                      you were ——
     MR.   CHANEY:    Yeah.
     THE   COURT:     ——bouncing over——
     MR.   CHANEY:    Yeah, the truck——
     THE   COURT:     ——the track?
     MR.   CHANEY:    ——bucked like a horse when
                      it went over those tracks
                      like that.
     THE COURT:       Okay.       Now —— Then you
                      indicated       in     your
                      deposition      that    you
                      didn’t see any indication
                      that anyone was working
                      on those tracks, right?
                      On that day.
     MR. CHANEY:      I didn’t see——There wasn’t
                      nobody     standing     out
                      there.
     THE COURT:       Right.
     MR. CHANEY:      But they usually have
                      reflectors or something
                      coming from one direction
                      but not from the back
                      side that we came from.
     THE COURT:       Right. There was nothing
                      indicating    that   anyone
                      was    working    on   that
                      particular     track   that
                      y’all crossed over that

                                  10
evidence produced by Chaney below.     In essence, Chaney’s entire

claim rests solely on his speculative assertion that his being

thrown from the truck could have been caused only by a defect in

the railroad crossing, although neither he nor any other witness

could testify to having seen any such defect. Such speculative and

wholly conclusory allegations are insufficient to carry Chaney’s

burden of coming forward with evidence or specific facts to resist

Dow’s motion for summary judgment.   See, Douglass, 79 F.3d at 1429.

     Chaney raises several other points of error, all of which we

find to be without merit. First, Chaney claims that genuine issues



                    day.
     MR. CHANEY:    No, I——Well, from what
                    I’ve seen when we were
                    working in there, they
                    were working at different
                    spots on the railroad
                    tracks, so all——ll through
                    Dow.
     THE COURT:     But they weren’t working
                    on this particular track
                    that you saw.
     MR. CHANEY:    I don’t know.
     THE COURT:     You don’t know.        You
                    didn’t see it.
     MR. CHANEY:    I didn’t see if they had
                    the rocks out of there or
                    not, no.
     THE COURT:     All right. So you don’t
                    know if there were rocks
                    between the tracks or
                    not.
     MR. CHANEY:    No. Not that particular
                    tracks [sic].
     THE COURT:     Not     that particular
                    track.”


                                11
of material fact exist with respect to: (a) where the crossing at

issue is located; (b) the surroundings and nature of the crossing;

and (c) the type of fill material used in the crossing.                 All of

these points are simply different ways of stating that Chaney has

been unable to identify the crossing at issue.             Rather than being

“material,” this question is simply irrelevant as Chaney has been

unable to produce any testimony or other evidence indicating that

his injury was in fact caused by a defect in Dow’s premises.

     Chaney also raises a point of error with respect to whether

the evidence indicates that the Breazeale employee driving the

truck   was   driving   too   fast.        Again,   this   issue   is   simply

irrelevant.    The basis on which the summary judgment was granted

was the absence of any evidence to support Chaney’s allegation that

an unreasonably dangerous condition existed on Dow’s premises.

     Chaney next argues that the magistrate judge’s order suggests

that she failed to draw all favorable inferences in favor of Chaney

as the nonmovant in ruling on the motion.              In particular, the

magistrate judge observed in her order:

     “Plaintiff has provided no competent summary judgment
     evidence to raise a genuine issue of material fact as to
     the existence of a premises defect on Defendant’s
     property. It is undisputed that the driver of the truck
     was driving too fast at the time of the incident, that
     the truck proceeded over the railroad tracks, and that
     Chaney was riding in the back of the pickup. It is just
     as likely that there was no premises defect, and that the
     cause of the accident was the manner in which the truck
     was being driven.”

Based on the record before us, it is a misstatement to say that it


                                      12
is “just as likely” that the cause of Chaney’s injury was the

manner in which the truck was driven as the only evidence before us

suggests that this was the only cause.     As the magistrate judge

properly concluded, there was simply no evidence of the existence

of any premises defect.   We are persuaded that by the magistrate

judge’s statement in this regard she simply meant to illustrate

that the only evidence of record indicated that Chaney’s injury was

caused by the manner in which the truck was driven rather than by

a premises defect as claimed by Chaney.

     Finally, Chaney argues that the magistrate judge failed to

properly apply Texas law regarding whether the same standard of

care is owed by the owner of a private road which traverses a

railroad crossing as has been applied to public roads, and whether

the lack of “fill” between the rails of a crossing can constitute

a premises defect. Again, these questions are simply irrelevant as

they were in no way relied upon by the court below in reaching the

conclusion that Chaney had simply failed to produce any evidence of

the existence of a premises defect on Dow’s premises at the

crossing in question.

     Accordingly, we conclude that the magistrate judge properly

granted summary judgment in favor of Dow on Chaney’s premises

liability claim.

     For the foregoing reasons, the judgment of the district court

is hereby

                                     AFFIRMED.

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