           Case: 20-10619   Date Filed: 08/05/2020   Page: 1 of 19



                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-10619
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:18-cv-01214-JPB



YAHAZIA ODELIA,

                                              Plaintiff - Appellant,

versus

ALDERWOODS (GEORGIA), LLC,

                                              Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (August 5, 2020)

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Yahazia Odelia appeals the district court’s grant of summary judgment in

favor of Alderwoods (Georgia) LLC on her claims for breach of contract, fraud,

negligence, and intentional infliction of emotional distress. She raises several

arguments on appeal. First, she contends that the district court lacked diversity

jurisdiction because the amount in controversy did not exceed $75,000. Second, she

claims that the district court improperly concluded that the statute of limitations

barred her breach of contract claim. Third, she asserts that the district court erred in

ruling that Alderwoods made no false representations to her. Fourth, she argues that

the district court erred in holding that the economic loss rule precluded recovery on

her negligence claim. Fifth, she maintains that the district court erred in concluding

that Alderwoods’ conduct did not reach the high level of outrageousness required to

survive summary judgment. Following review of the record and parties’ briefs, we

affirm.

                                           I

      Alderwoods owns and operates the Kennedy Memorial Gardens Cemetery in

DeKalb, Georgia. On September 25, 2002, Ms. Odelia purchased two side-by-side

burial plots at the cemetery—Lot U, Space 15, and Lot U, Space 16. Space 15 was

conveyed to Ms. Odelia under Retail Installment Contract No. 1007905, and Space

16 was conveyed to her under Retail Installment Contract No. 1007904. Two days

later, Ms. Odelia buried her sister, Evelyn Geeder-Jones, in Space 16. Ms. Odelia


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reserved Space 15, and paid $655.50 for the burial of her mother, Lucy Mae

Hammonds, when such need arose. At her deposition, Ms. Odelia testified that she

did not remember any conversations she had with the Alderwoods representative

regarding the sale of either of the burial plots.

        Despite the fact that it had conveyed Space 15 to Ms. Odelia, on April 21,

2005, Alderwoods re-sold it to another party, who buried the remains of Odell Allen

in the plot.   After Ms. Odelia’s mother passed away on February 24, 2016,

Alderwoods discovered that it had re-sold Space 15 and that Mr. Allen’s remains

were buried there. Alderwoods notified Ms. Odelia of the problem, and sought an

order from a Georgia court authorizing it to disinter Mr. Allen’s remains from Space

15, so that the plot would be available for Ms. Odelia’s mother. The state court

issued the order on April 4, 2016.

      Ms. Odelia’s mother was buried in Space 15 on June 5, 2017, about 14 months

after the state court issued the order to disinter Mr. Allen’s remains. Alderwoods

waived any fees associated with the burial of Ms. Odelia’s mother.

      Ms. Odelia alleges that the delay in burying her mother after Space 15 became

available was due to Alderwoods’ attempt to induce her to sign legal documents

releasing it from liability. She says that Alderwoods first attempted to get her to

sign the release of liability papers during her mother’s wake. She claims that

Alderwoods tried a second time, after Mr. Allen’s remains had been disinterred and


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she was preparing a gravesite memorial for her mother. She refused to sign the

papers without first being able to review them with an attorney. As a result,

Alderwoods refused to bury her mother at the scheduled time, and she had to cancel

the gravesite memorial.

      On November 2, 2017, Ms. Odelia’s attorney sent Alderwoods a detailed

settlement offer, which asked for $200,000 in exchange for a complete release of all

claims. The negotiations led nowhere and on February 21, 2018, Ms. Odelia filed a

complaint in Georgia state court asserting claims against Alderwoods for breach of

contract, fraud, negligence, and intentional infliction of emotional distress. On

March 22, 2018, Alderwoods removed the case to federal district court. After

discovery, the district court entered summary judgment in favor of Alderwoods on

all of Ms. Odelia’s claims.

                                          II

      Ms. Odelia argues that the amount in controversy in this case did not exceed

$75,000 and, thus, the district court lacked subject-matter jurisdiction. “Because we

are obligated to notice the district court’s lack of subject matter jurisdiction if such

is the case,” we start by addressing Ms. Odelia’s jurisdictional argument. Leonard

v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002) (citing Williams v. Best

Buy Co., 269 F.3d 1316, 1318 (11th Cir. 2001)).




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      The district court independently appraised Ms. Odelia’s complaint and

Alderwoods’ notice of removal and concluded that the amount in controversy was

met. We review this determination de novo, see Mutual Assurance, Inc. v. United

States, 56 F.3d 1353, 1355 (11th Cir. 1995), and agree with the district court.

      The district court’s subject-matter jurisdiction was premised on diversity of

citizenship. Diversity jurisdiction exists where the suit is between citizens of

different states and the amount in controversy exceeds $75,000. See 28 U.S.C. §

1332(a).

      “Dismissal of a case brought under 28 U.S.C. § 1332 is proper where the

pleadings make it clear ‘to a legal certainty that the claim is really for less than the

jurisdictional amount.’” Leonard, 279 F.3d at 972. (quoting St. Paul Mercury

Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)). “Where a plaintiff fails to

specify the total amount of damages demanded, as is the case here, a defendant

seeking removal based on diversity jurisdiction must prove by a preponderance of

the evidence that the amount in controversy exceeds the $75,000 jurisdictional

requirement.” Id.

      “In some cases, this burden requires the removing defendant to provide

additional evidence demonstrating that removal is proper.” Roe v. Michelin N. Am.

Inc., 613 F.3d 1058, 1061 (11th Cir. 2010). A settlement offer constitutes evidence

that the district court may consider in determining whether the amount in


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controversy is met. See Lowery v. Alabama Power Co., 483 F.3d 1184, 1212 n. 62

(11th Cir. 2007). In making its determination, the district court can consider a claim

of punitive damages as well. See Holley Equip. Co. v. Credit Alliance Corp., 821

F.2d 1531, 1535 (11th Cir. 1987).

      We agree with the district court that the value of Ms. Odelia’s claims more

likely than not exceeded $75,000. Ms. Odelia sought to recover damages stemming

from breach of contract, fraud, negligence, intentional infliction of emotional

distress, and punitive damages. It is hard to imagine that the combined sum of all

those claims, plus the punitive damages sought, would not exceed $75,000. Indeed,

Alderwoods attached to its removal notice Ms. Odelia’s detailed settlement letter,

which valued the claims at $200,000. That valuation, by Ms. Odelia herself, tends

to show that the amount in controversy was met.

      Ms. Odelia also argues that, according to Alderwoods, her damages were

limited to $655.50—the price of the contract—and that as a result Alderwoods

admitted that the amount in controversy did not exceed $75,000. We reject this

contention because Alderwoods argued only that Ms. Odelia’s damages for the

breach of contract claim should be limited to $655.50. Ms. Odelia, as noted, asserted

additional claims for fraud, negligence, and intentional infliction of emotional

distress, which would potentially increase the sum of her total damages. Because it




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is more likely than not that the sum all of Ms. Odelia’s claims exceeds $75,000, we

conclude that the district court properly concluded that it had diversity jurisdiction.



                                          III

      On the merits, Ms. Odelia contends that the district court improperly granted

summary judgment in favor of Alderwoods on her breach of contract, fraud,

negligence, and intentional infliction of emotional distress claims. We disagree.

      We exercise plenary review over a district court’s grant of summary judgment.

See Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). In doing so, we review

all the evidence and draw all reasonable evidence in the light most favorable to the

non-moving party. See id. The party moving for summary judgment bears the

burden of demonstrating that there is no genuine dispute of any material fact and

that it is entitled to judgment as a matter of law. See id. “The moving party may

meet its burden to show that there are no genuine issues of material fact by

demonstrating that there is a lack of evidence to support the essential elements that

the non-moving party must prove at trial.” Id. (citing Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986)).

                                          A

      Ms. Odelia asserts that the district court erred in concluding that the statute of

limitations barred her breach of contract claim. We are not persuaded.


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      “Under O.C.G.A. § 9–3–24, an action for breach of a written contract must be

brought within six years of the breach.” Hamburger v. PFM Capital Mgmt., Inc.,

649 S.E.2d 779, 782 (Ga. Ct. App. 2007). “[T]he statute of limitations runs from the

time the contract is broken ‘and not at the time the actual damages results or is

ascertained.’” Space Leasing Assocs. v. Atlantic Bldg. Sys., 241 S.E.2d 438, 441

(Ga. Ct. App. 1977) (quoting Mobley v. Murray Cty., 173 S.E. 680, 684 (Ga. 1934)).

Under Georgia law, “the true test to determine when the cause of action accrued is

to ascertain the time when the plaintiff could first have maintained his action to a

successful result.” Godwin v. Mizpah Farm, LLLP, 766 S.E.2d 497, 502 (Ga. Ct.

App. 2014).

      Here, the alleged breach of contract occurred when Alderwoods sold Space

15 to Mr. Allen’s family in April of 2005, and the statute of limitations began to run

at that time: “[w]ith respect to a contract claim, the statute of limitations runs from

the time the contract is broken rather than from the time the actual damage results or

is ascertained.” Hamburger, 649 S.E.2d at 782 (internal quotation and citation

omitted). Ms. Odelia filed her complaint in February of 2018, almost 13 years after

Alderwoods’ alleged breach. Thus, the six-year statute of limitations bars her breach

of contract claim. See O.C.G.A. § 9–3–24.

      Ms. Odelia argues that the discovery rule should apply to her breach of

contract claim, which would mean that the statute of limitations began to run when


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she discovered that Alderwoods breached the contract. She further asserts that not

applying the discovery rule to her case would be illogical because she had no way

of finding out that Alderwoods had breached the contract until she tried to bury her

mother in February of 2016.

       We are sympathetic to Ms. Odelia’s predicament, but Georgia courts have

continuously held that the discovery rule does not apply to breach of contract claims.

See Owen v. Mobley Constr. Co., Inc., 320 S.E.2d 255, 256 (Ga. Ct. App. 1984)

(refusing to apply the discovery rule in a breach of contract claim); Moore v. Dep’t

of Human Res., 469 S.E.2d 511, 512–13 (Ga. Ct. App. 1996) (same). In dealing with

cases where the plaintiff has not discovered the breach of contract after the statute

of limitations has run out, Georgia courts have held that “[m]ere ignorance of the

facts constituting a cause of action does not prevent the running of the statute of

limitation.” Millard Matthews Builders, Inc. v. Plant Improvement Co., Inc., 307

S.E.2d 739, 740 (Ga. Ct. App. 1983) (quotations marks omitted). 1

       Other state courts have reached the same result when considering similar

factual scenarios. See e.g., Jakeman v. Lawrence Grp. Mgmt. Co., LLC, 151 So. 3d

1083, 1090–91 (Ala. 2014) (concluding that the cause of action accrues at the time



1
 Only a few states have extended the application of the discovery rule to breach of contract claims.
See e.g., Boyd v. Bowen, 806 A.2d 314, 333 (Md. Ct. Spec. App. 2002) (explaining that Maryland
courts extended the discovery rule to all causes of actions). We, however, must apply Georgia law
to this case. See Bravo v. United States, 577 F.3d 1324, 1325 (11th Cir. 2009) (explaining that, in
diversity cases, we must apply state substantive law).
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of the breach, i.e., when the plot is improperly resold); Hardin v. York Mem’l Park,

730 S.E.2d 768, 775 (N.C. Ct. App. 2012) (same). We therefore conclude that the

discovery rule does not apply to Ms. Odelia’s breach of contract claim.

      Ms. Odelia next claims that the Uniform Commercial Code governs the sale

of a cemetery plot and that the statute of limitations for the sale of goods, O.C.G.A.

§ 11–2–725, should apply. To determine whether a contract qualifies as a sale of

goods under the UCC, Georgia courts ask “whether the goods are movable at the

time of identification to the contract.” Willis Mining, Inc. v. Noggle, 509 S.E.2d 731,

733 (Ga. Ct. App. 1998); O.C.G.A. § 11–2–105(1). Here, a cemetery plot is not

movable and thus falls outside the UCC’s definition of goods.

      In addition, a century of caselaw belies Ms. Odelia’s UCC argument. Georgia

courts uniformly treat the sale of a cemetery plot as an easement or a license. See

Jacobus v. Congregation of Children of Israel, 33 S.E. 853, 854 (Ga. 1899) (stating

that the acquisition of cemetery plot constitutes an easement or a license); Walker v.

Ga. Power Co., 339 S.E.2d 728, 730 (Ga. Ct. App. 1986) (holding that “one who

owns or has an interest in a cemetery for burial purposes does not acquire any title

to the soil, but only an easement or license for the use intended”).

      In sum, the district court did not err in concluding that the statute of limitations

barred Ms. Odelia’s breach of contract claim.




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                                            B

      Ms. Odelia contends that the district court erred in granting summary

judgment in favor of Alderwoods on her fraud claim because it wrongly concluded

that Alderwoods did not make false representations to her. Again, we disagree.

      To prevail in a fraud claim under Georgia law, a plaintiff must prove “a false

representation by a defendant, scienter, intention to induce the plaintiff to act or

refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.”

Crawford v. Williams, 375 S.E.2d 223, 224 (Ga. 1989). “In actions for fraud,

actionable representations must relate to past or existing facts and cannot consist of

mere broken promises.” Ga. Mobile Home Dev. Corp. v. Kuter, 168 S.E.2d 858,

861 (Ga. Ct. App. 1969) (quotations marks omitted). Moreover, “[a] mere breach

of a contract is not fraud.” Id.

      Here, the record shows that Ms. Odelia could not remember any

representations, false or not, that the Alderwoods representative made to her at the

time she bought Space 15. It is also undisputed that Space 15 was available at the

time Ms. Odelia bought it, which indicates that Alderwoods did not misrepresent its

availability at the time of the contract. Under the circumstances, it is impossible to

say that Alderwoods engaged in fraud given that Ms. Odelia cannot identify a single

misrepresentation made to her when she entered into the contract. See Riverbend


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Ford–Mercury Inc. v. Kirksey, 395 S.E.2d 898, 900 (Ga. Ct. App. 1990) (concluding

that the plaintiff could not prove fraud because he was not given false information

by the defendant). That Alderwoods may have later breached the contract is not, by

itself, enough to establish fraud. See Kuter, 168 S.E.2d at 861.

      Ms. Odelia argues that the question of whether Alderwoods made a false

representation at the time she bought Space 15 should be left to the jury. She cites

to Central Chevrolet, Inc. v. Campbell, 198 S.E.2d 362 (Ga. Ct. App. 1973), to

support her argument.           But in Central Chevrolet, there was a clear

misrepresentation—the seller had sold a 1963 Corvette and represented it as a 1967

Corvette. Id. at 363. The court sent the case to the jury to determine whether there

was intent to defraud. Id. at 364. In this case, the question is not about intent, but

rather whether Alderwoods misrepresented the availability of Space 15 to Ms.

Odelia in the first place. And the record shows that no false representation was made

because Space 15 was available at the time she acquired it in 2002.

      We agree with the district court that Alderwoods did not make any false

representation to Ms. Odelia. Summary judgment on the fraud claim was therefore

appropriate.

                                          C




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       Next, Ms. Odelia asserts that the district court erred in granting summary

judgment in favor of Alderwoods on her negligence claim based on the economic

loss rule.

       In Georgia, the economic loss rule limits the ability of contracting parties to

sue one another for negligence and is used “to distinguish between those causes of

action that may be brought only in a contract [ ] action and those that give rise to an

action in tort.” Flintkote Co. v. Dravo Corp., 678 F.2d 942, 948 (11th Cir. 1982).

Georgia courts generally do not allow contracting parties to bring negligence claims

for purely economic losses against one another. See Gen. Elec. Co. v. Lowe’s Home

Ctrs., Inc., 608 S.E.2d. 636, 637 (Ga. 2005). Accordingly, the economic loss rule

bars recovery in tort when a plaintiff who has entered in a contract does not suffer

injury to his person or damage to his property. See id. Here, Ms. Odelia does not

allege any injury to herself or her property, and thus the economic loss rule bars her

negligence claim.

       There are, however, exceptions to the economic loss rule, and Ms. Odelia

asserts that two of them apply here. See Advanced Drainage Sys., Inc. v. Lowman,

437 S.E.2d 604, 607 (Ga. Ct. App. 1993). First, there is “the accident exception,

which allows a plaintiff to recover in tort when there is a sudden and calamitous

event that not only causes damage to the product but poses an unreasonable risk of

injury to persons and other property.” Id. (citations omitted). Second, under the


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misrepresentation exception, “one who supplies information during the course of his

business, profession, employment, or in any transaction in which he has a pecuniary

interest has a duty of reasonable care and competence.” Robert & Co. Assoc. v.

Rhodes–Haverty P’ship, 300 S.E.2d 503, 504 (Ga. 1983). In order to establish the

second exception, the plaintiff has to prove the five elements of fraud. See Advanced

Drainage Sys. Inc., 437 S.E.2d at 607.

      Starting with the accident exception, Ms. Odelia argues that the subsequent

sale of Space 15 to Mr. Allen’s family was the type of incident that the accident

exception is designed to cover. But her argument is not persuasive because Georgia

courts have only invoked the accident exception where a person or property is put in

foreseeable danger, and Ms. Odelia does not explain how the subsequent sale of

Space 15 created an unreasonable risk of danger to herself or to her property. See

Vulcan Materials Co., Inc. v. Driltech Inc., 306 S.E.2d 253, 257 (Ga. 1983) (holding

that “[a]n ‘accident’ should be defined as a sudden and calamitous event which,

although it may only cause damage to the defective product itself, poses an

unreasonable risk of injury to other persons or property”). As a result, we do not

believe that the accident exception applies in this case.

      Ms. Odelia fares no better with respect to the misrepresentation exception. As

discussed above, the record shows that Alderwoods did not make any false




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representations to Ms. Odelia when it sold her Space 15. She therefore cannot

establish fraud and the misrepresentation exception therefore does not apply.2

       Because none of the economic loss rule’s exceptions apply to Ms. Odelia’s

negligence claim, we conclude that the district court properly granted summary

judgment in favor of Alderwoods.

                                                D

       Finally, Ms. Odelia claims that the district court improperly granted summary

judgment in favor of Alderwoods as to her claim for intentional infliction of

emotional distress. We reject her argument.

       To succeed on an intentional infliction of emotional distress claim in Georgia,

a plaintiff must prove “(1) intentional or reckless conduct; (2) that is extreme and

outrageous; (3) a causal connection between the wrongful conduct and the emotional

distress; and (4) severe emotional distress.” Renton v. Watson, 739 S.E.2d. 19, 26

(Ga. Ct. App. 2013) (quotations omitted). “Liability for this tort has been found only

where the conduct has been so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded as atrocious, and



2
  On appeal, Ms. Odelia also argues that Alderwoods is liable on negligence per se grounds. We
do not reach this argument because this is not the same argument that she presented in the district
court. In her brief in opposition to the motion for summary judgment, she did not assert negligence
per se; instead she argued that Alderwoods had a legal duty arising under § 590-3-1-.15 of the
Georgia Administrative Code and that, because Alderwoods violated that regulation, the economic
loss rule did not apply. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (declining to reach an argument raised on appeal for the first time).
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utterly intolerable in a civilized community.” Yarbrough v. SAS Systems Inc., 419

S.E.2d 507, 509 (Ga. Ct. App. 1992) (quotations omitted). Whether a claim meets

“the requisite level of outrageousness and egregiousness to sustain a claim for

intentional infliction of emotional distress is a question of law.” Frank v. Fleet

Finance, Inc. of Ga., 518 S.E.2d 717, 720 (Ga. Ct. App. 1999).

      The district court concluded that Alderwoods’ conduct did not meet the level

of outrageousness required to satisfy the tort of intentional infliction of emotional

distress. It found that Alderwoods (1) attempted to remedy the situation by acquiring

a court order to disinter Mr. Allen so that Ms. Odelia’s mother could be buried in

Space 15, and (2) waived the associated burial fees.

      Ms. Odelia argues that Georgia courts have found the existence of intentional

infliction of emotional distress in less egregious or outrageous cases than her own.

First, she cites to Stephens v. Waits, 184 S.E. 781, 782 (Ga. Ct. App. 1936), a case

in which a burial was interrupted by someone who sat in the casket and threatened,

using an iron pick, to strike anyone trying to bury the deceased. Second, she cites

to Delta Finance Company v. Ganakas, 91 S.E.2d 383, 385 (Ga. Ct. App. 1956), a

case where the defendant, in an attempt to collect a debt, went to the plaintiff’s house

to repossess a television set knowing that an eleven-year-old would be alone,

threatened the child with calling the police, and attempted to break into the house

several times. See id.


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      Although we empathize with Ms. Odelia’s unpleasant experience in

attempting to bury her mother, we do not think that there was willful or wanton threat

of violence here. The cases she cites are distinguishable on their facts. And

Alderwoods’ conduct did not rise to the level of outrageousness required to satisfy

the tort of intentional infliction of emotional distress.

      In support of her claim for intentional infliction of emotional distress, Ms.

Odelia relies on the two specific actions by Defendants to induce her to sign

purported release-of-liability papers.

      First, two Alderwoods employees came to the wake for Ms. Odelia’s mother

and spoke to a funeral director there, who in turn came to the area where the wake

was taking place and told Ms. Odelia that the two were there for her to sign some

papers, thus disrupting her during the service while someone was singing and while

she was grieving. Ms. Odelia told the two Alderwoods employees that she could not

talk right then, and she said during her deposition that did not see or sign the

documents.

      Second, one of those same Alderwoods employees later told Ms. Odelia about

a week before the rescheduled graveside service for her mother that Ms. Odelia

needed to sign some papers, which Alderwoods would fax to her so that her lawyer

could review them. Ms. Odelia never received a fax; instead, the night before the

rescheduled service, the Alderwoods employee called her while she was at dinner


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with family and offered to bring her the documents to sign then. Ms. Odelia

responded that she needed her lawyer to review them, and the employee then, in a

“cold” manner, told her that the burial could not take place the next day without the

signed papers. Ms. Odelia was informed a week in advance of the rescheduled

service that the papers needed to be signed, and she knew that she wanted her lawyer

to review them. As with the documents at the wake, Ms. Odelia stated during her

deposition that she did not know what the papers were, and it is undisputed that the

burial took place without her ever signing the referenced papers. Thus, her signature

on any such documents was not a prerequisite to her mother’s burial.

      These actions by the Alderwoods were certainly lacking in sensitivity toward

a grieving daughter, and it is unfortunate that Ms. Odelia had to experience them.

But they do not rise to the level of outrageousness discussed in Stephens and Delta

Finance Company. In sum, Alderwoods took corrective action as soon as it learned

of its mistake, waived the burial fees, and eventually buried her mother in Space 15.

      Because we conclude that Alderwoods’ conduct did not meet the very high

bar established in cases like Stephens and Delta Finance Company, the district court

did not err in granting summary judgment in favor of Alderwoods on Ms. Odelia’s

intentional infliction of emotional distress claim.

                                          IV




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      We affirm the district court’s grant of summary judgment in favor of

Alderwoods as to all of Ms. Odelia’s claims.

      AFFIRMED.




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