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

                                                                            FILED
                                                                         October 10, 2008

                                       No. 07-40982                   Charles R. Fulbruge III
                                                                              Clerk

SHERRIE GILBERT, Individually and as personal representative
of the Estate of Chrystal Newby Willis, deceased;
DARCIE BAGGETT, Individually and as personal representative
of the Estate of Rebecca Shifflett, deceased

                                           Plaintiffs - Appellants
v.

OUTBACK STEAKHOUSE OF FLORIDA INC

                                           Defendant - Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 5:06-CV-7


Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       After two employees at an Outback Steakhouse restaurant were murdered
in a robbery, the representatives of their estates sued Outback Steakhouse of
Florida, Inc. (“OSF”) for damages and have appealed the district court’s grant of
OSF’s motion for summary judgment. For the following reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                No. 07-40982

                      I. FACTS AND PROCEEDINGS
      Chrystal Newby Willis and Rebecca Shifflet (the “decedents”) were
employed at an Outback Steakhouse restaurant in Texarkana, Texas. On
September 1, 2003, two former employees who had recently been fired (the
“assailants”) killed the decedents while robbing the restaurant. Matthew Hines,
the managing partner of the restaurant, was also killed in the robbery. In
October 2005, Sherrie Gilbert and Darcie Baggett, individually and as personal
representatives of the estates of the decedents (collectively referred to as
“Gilbert”), filed suit against OSF. The complaint seeks damages against OSF as
the employer of the decedents, alleging that OSF intentionally caused their
deaths, or, alternatively, that OSF’s negligence resulted in the murders.
      As discovery progressed, Gilbert learned that the decedents, the
assailants, and Hines had actually been employed by an independent contractor
of OSF—Outback Steakhouse Restaurant Services (“OSRS”)—pursuant to an
employment services agreement between OSRS and OSF. The premises of the
Texarkana restaurant were owned by OSF and leased to a third entity, Outback
Steakhouse of Dallas-II Ltd. (“OSD”). While OSF held the lease and intellectual
property rights used by the Texarkana restaurant, OSRS was responsible for
managing personnel and all hiring and firing decisions, and OSD was in charge
of maintaining the premises.
      Gilbert filed a motion for leave to amend the complaint on October 13,
2006—over eight months after the deadline to amend pleadings set by the
scheduling order. The proposed amended complaint would have added OSRS
and OSD as defendants and set forth more detailed claims of negligence against
OSF, including as the premises owner. A magistrate judge denied the motion,
concluding that the addition of new parties at that juncture would cause undue

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delay, and the assertion of new claims and allegations was potentially
prejudicial to OSF. Gilbert did not object to the magistrate judge’s decision.
      On March 22, 2007, OSF filed a motion for summary judgment, arguing
that Gilbert’s claims failed as a matter of law because they were based on OSF’s
status as the employer of the decedents and assailants. In response, Gilbert
conceded that OSRS was the relevant employer, but claimed that OSF
nevertheless owed a duty of care to the decedents as the premises owner and as
the entity in control of the actual operations of the restaurant. While the
summary judgment motion was pending, Gilbert filed a second motion for leave
to amend the complaint by adding references to OSF’s liability as the premises
owner and as a party to the contract with OSRS in the negligence cause of
action.
      On June 29, 2007, the district court denied the motion for leave to amend
as an improper attempt to pursue a new theory of liability on the eve of trial,
finding that the original negligence cause of action did not properly allege a
claim against OSF as the premises owner.        On the same day, it entered
summary judgment against Gilbert, concluding that OSF could not be held liable
for the damages suffered by employees of OSRS. The district court noted in its
summary judgment order that Gilbert’s arguments regarding premises liability
were also unavailing and referenced its order denying leave to amend. Gilbert’s
motion to amend or alter the judgment was subsequently denied. Gilbert
appeals the district court’s grant of summary judgment.




                        II. STANDARD OF REVIEW



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                                   No. 07-40982

      This court “reviews a district court’s grant of summary judgment de novo,
applying the same legal standards as the district court.” Condrey v. SunTrust
Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). On review of a grant of summary
judgment, “[t]he evidence and inferences from the summary judgment record are
viewed in the light most favorable to the nonmovant.” Minter v. Great Am. Ins.
Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005). Typically, “[s]ummary judgment
is proper when the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Kane v. Nat’l Fire
Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (internal quotations omitted); see also
FED. R. CIV. P. 56(c). This court may “affirm a grant of summary judgment on
any grounds supported by the record and presented to the court below.”
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008) (per curiam).
      While “failure to state a claim usually warrants dismissal under Rule
12(b)(6),” it may also serve as a basis for summary judgment. Whalen v. Carter,
954 F.2d 1087, 1098 (5th Cir. 1992). In that case, “the failure to state a claim is
the ‘functional equivalent’ of the failure to raise a genuine issue of material fact.”
Id. A motion for summary judgment challenging the sufficiency of a plaintiff’s
pleadings will be “evaluated much the same as a 12(b)(6) motion to dismiss.”
Ashe v. Corley, 992 F.2d 540, 544 (5th Cir. 1993). This court must therefore
“accept all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per
curiam). In this posture, a motion for summary judgment is properly granted
“if, accepting all alleged facts as true, the plaintiffs’ complaint nonetheless failed
to state a claim.” Ashe, 992 F.2d at 544.


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                                         No. 07-40982

                                     III. DISCUSSION
A. Premises Liability Claim
       Gilbert challenges the district court’s holding that her premises liability
claim was insufficiently pleaded.1             Other than in the situations expressly
enumerated in Rule 9(b), a complaint need only recite “a short and plain
statement of the claim showing that the pleader is entitled to relief.” FED. R.
CIV. P. 8(a)(2). Rule 8 thus sets out a “low bar” to evaluate the sufficiency of a
claim, requiring only that a plaintiff’s pleadings “‘give the defendant fair notice
of what the plaintiff’s claim is and the grounds upon which it rests.’” Gen. Elec.
Capital Corp. v. Posey, 415 F.3d 391, 396 (5th Cir. 2005) (quoting Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 512 (2002)). Accordingly, “[t]he notice pleading
requirements of Federal Rule of Civil Procedure 8 and case law do not require
an inordinate amount of detail or precision.” McManus v. Fleetwood Enters.,
Inc., 320 F.3d 545, 551 (5th Cir. 2003) (internal quotation omitted). A complaint
for negligence need not “parse the negligence allegation into separate elements,”
Posey, 415 F.3d at 396, nor is it required to “correctly specify the legal theory”
giving rise to the claim for relief, McManus, 320 F.3d at 551.
       However, a plaintiff must “plead sufficient facts to put the defense on
notice of the theories on which the complaint is based.” TIG Ins. Co. v. Aon Re,
Inc., 521 F.3d 351, 357 (5th Cir. 2008) (internal quotation omitted).                          The

       1
         Gilbert’s argument that the district court improperly invoked Texas pleading rules is
meritless. Gilbert is correct that “federal law governs the pleading requirements of a case in
federal court.” TIG Ins. Co. v. Aon Re, Inc., 521 F.3d 351, 357 (5th Cir. 2008) (internal
quotation omitted). The district court, in assessing the sufficiency of Gilbert’s premises liability
claim, made a passing reference to Texas’s requirement that plaintiffs “plead and prove” the
elements of a liability theory. However, it also cited extensively to federal pleading rules and
case law. Ultimately, we apply Rule 8 in conducting our de novo review and are not concerned
with the district court’s mention of Texas pleading requirements.

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                                   No. 07-40982

plaintiff’s pleadings must both “(1) provide notice of circumstances which give
rise to the claim, [and] (2) set forth sufficient information to outline the elements
of the claim or permit inferences to be drawn that these elements exist.” Beanal
v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). The Supreme
Court recently reaffirmed these principles, stating that “[w]ithout some factual
allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only ‘fair notice’ of the nature of the claim, but also
‘grounds’ on which the claim rests.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,
1965 n.3 (2007).
      In denying Gilbert’s motion for leave to amend, the district court noted
that because the proposed addition of a premises liability claim introduced “a
substantial change in [Gilbert’s] theory of recovery,” it would not allow the
amendment at such a late stage in the proceedings. Importantly, Gilbert does
not appeal the denial of leave to amend. Rather, she contends that the second
cause of action alleged in the original complaint—a broad negligence claim
against OSF—adequately encompasses a premises liability theory of recovery,
and that leave to amend was only sought to clarify the various theories of
liability, not to add new ones. The complaint’s negligence cause of action reads
as follows:

                                       6.
                        Alternative Theories of Recovery
              Negligence / Gross Negligence of Outback Steakhouse

      In the alternative, Plaintiffs plead that the negligence and gross
      negligence of OUTBACK STEAKHOUSE caused the incident made
      the basis of this suit.



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                                  No. 07-40982

      6.1 Plaintiffs would show that the assaults which lead to the deaths
      of [the decedents] and another employee of the Texarkana
      OUTBACK STEAKHOUSE restaurant were committed for reasons
      personal to the assailant, i.e. the assailant had a vendetta against
      OUTBACK STEAKHOUSE as a result of his being terminated from
      employment at this facility.

      6.2 Therefore, the assault did not occur within the course of [the
      decedents’] employment and Plaintiffs are entitled to recover under
      both the Texas Wrongful Death Act and the Survival Statute.
      From a fair reading of these and the other allegations of the complaint, we
agree with the district court that OSF was not on notice that it was being sued
as the premises owner. Under Texas law,
      [W]hen the injured party is an invitee . . . , the elements of a
      premises claim are: (1) Actual or constructive knowledge of a
      condition on the premises by the owner or occupier; (2) That the
      condition posed an unreasonable risk of harm; (3) That the owner or
      occupier did not exercise reasonable care to reduce or eliminate the
      risk; and (4) That the owner or occupier's failure to use such care
      proximately caused the plaintiff's injury.
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). In order to properly
plead her claim against OSF, Gilbert was not required to “correctly specify the
legal theory”—i.e., premises liability—underlying the claim. McManus, 320 F.3d
at 551; see also De La Hoya v. Coldwell Banker Mexico, Inc., 125 F. App’x 533,
537 (5th Cir. 2005) (unpublished) (noting that “Plaintiffs’ failure to include the
phrase ‘single business enterprise’” in a complaint seeking to pierce the
corporate veil was not “dispositive” for purposes of dismissal). The complaint did
not even need to outline all the elements of her claim for premises liability under
Texas law. See Posey, 415 F.3d at 396.




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                                  No. 07-40982

      However, in this case, the claim fails as inadequate because it does not
“permit inferences to be drawn that these elements exist.” Beanal, 197 F.3d at
164. The complaint does not contain a single reference, whether explicit or
implicit, to OSF’s position as the holder of the lease for the premises, to the
existence of any condition or defect of the premises, or to the decedents’ status
as invitees on the premises. While Gilbert correctly notes that under Texas law,
a claim based on premises liability is a negligence action, see Corbin v. Safeway
Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983), the complaint’s mere inclusion of
a broad cause of action for negligence is insufficient to sustain her claim. “A
complaint which contains a bare bones allegation that a wrong occurred and
which does not plead any of the facts giving rise to the injury, does not provide
adequate notice.” Walker v. S. Cent. Bell Tel. Co., 904 F.2d 275, 277 (5th Cir.
1990) (per curiam) (also noting that “[i]f the complaint had alleged nothing
further [than a claim for intentional infliction of emotional injury], it would have
failed to provide notice”). In fact, the complaint’s consistent allegations that
OSF was the employer of the decedents and the former employer of the
assailants suggested that the negligence claim was brought against OSF as an
employer rather than a premises owner. Therefore, while the “nature of the
claim”—a negligence action—is apparent from the complaint, it cannot be said
that Gilbert provided “fair notice” of the “‘grounds’ on which the claim
rests”—the duty owed by OSF as the premises owner to its invitees. Twombly,
127 S. Ct. at 1965 n.3.
      Gilbert attempts to demonstrate that she provided “fair notice” of the
premises liability claim by noting that OSF denied being in control of the
restaurant’s premises in its own position statement in a Rule 26(f) report, and


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                                  No. 07-40982

that questions relating to OSF’s potential premises liability were asked during
discovery. These arguments were not raised in response to OSF’s motion for
summary judgment, and thus are waived. See, e.g., Keelan v. Majesco Software,
Inc., 407 F.3d 332, 339–40 (5th Cir. 2005). In addition, there is no support for
the proposition that either the defendant’s pleadings or the discovery process,
without any amendment to a plaintiff’s pleadings, can serve to add new grounds
for relief to the complaint.
      Gilbert has failed to state a proper negligence claim based on OSF’s
liability as the owner of the Texarkana restaurant’s premises. Accordingly, we
affirm the district court’s grant of summary judgment on Gilbert’s supposed
premises liability claim.
B. OSF’s Duty to the Decedents
      Gilbert also challenges the district court’s granting of summary judgment
on her claim that OSF owed a duty to the decedents as employees of its
independent contractor, OSRS. Under Texas law, “[b]ecause an independent
contractor has sole control over the means and methods of the work to be
accomplished, . . . the individual or entity that hires the independent contractor
is generally not vicariously liable for the tort or negligence of that person.”
Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998).
Therefore, “[o]rdinarily, a general contractor does not owe a duty to ensure that
an independent contractor performs its work in a safe manner.” Lee Lewis
Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001).
      However, “a general contractor may owe a duty of reasonable care to a
subcontractor’s employee, and consequently may be liable for injury to that
employee, if the general contractor retains control over part of the work to be


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performed.” Id. The scope of a general contractor’s duty to the employees of its
general contractor is thus “limited to the scope of its retained supervisory
control.” Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998).
Accordingly, “[f]or the general contractor to be liable for negligence, its
supervisory control must relate to the condition or activity that caused the
injury.” Id. (internal quotation omitted).
      Gilbert argues that OSF had retained sufficient control over the activities
of OSRS to owe a duty of reasonable care to employees of OSRS, including the
decedents. In the proceedings below, the district court rejected this argument,
holding that because OSF had established that OSRS was an independent
contractor that hired the assailants, Gilbert had failed to raise a genuine issue
of material fact as to OSF’s liability for OSRS’s hiring of the assailants. On
appeal, Gilbert contends that its negligence claim was not based on the hiring
of the assailants—which she admits was under OSRS’s control—but rather on
OSF’s retained control over the security and safety of the decedents’ workplace.
      This argument is nothing more than an attempt by Gilbert to salvage her
inadequate premises liability claim. As explained above, the complaint relies
entirely on OSF’s alleged status as the employer of the decedents and the former
employer of the assailants. It claims that OSF hired and terminated employees
with criminal backgrounds—the assailants—and employed the decedents in
positions that placed them at risk of becoming victims of violent crimes, in
particular in light of the assailants’ “vendetta” against OSF. The complaint does
not contain a single allegation relating to OSF’s duty to maintain a safe
workplace or to the unsafe condition of the restaurant. Therefore, Gilbert has




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failed to state a negligence claim based on the existence and breach of a duty to
ensure the general safety of the decedents’ workplace.
       Even assuming that the complaint’s broad negligence claim properly
encompassed this theory of liability, Gilbert has failed to raise a genuine issue
of material fact as to OSF’s control over safety and security issues at the
Texarkana restaurant. Gilbert notes that the contract between OSF and OSRS,
which provides that OSRS had sole authority to hire, train and discharge any
restaurant personnel and management, does not expressly address OSRS’s duty
to provide safety and security to its employees. Gilbert also points to statements
made during deposition by Paul Avery, the president of OSF, and Blaise Hadley,
the joint venture partner for the Texarkana and several other Outback
restaurants in Texas. They testified that OSF held the lease to the Texarkana
restaurant, owned the Outback intellectual property rights—including its logo,
recipes, and a document used for training of Outback personnel—, and required
Outback restaurants to follow corporate guidelines and procedures regarding
food preparation and recipes. Avery also testified that he would not allow an
Outback restaurant to be operated in an area he felt was unsafe, that he had at
various points reminded his joint venture partners and franchisees of the need
to utilize and test security alarms, and that he had occasionally retained security
consultants to contribute to Outback restaurants’ security procedures.
According to Gilbert, this evidence shows that OSF had retained control over the
operations of the Texarkana restaurant, including the security and safety of the
facility.
       Gilbert’s evidence regarding OSF’s retained supervisory control over food
preparation, recipes and other intellectual property rights is irrelevant to the
negligence claim because this control does not “relate to the activity that actually

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                                  No. 07-40982

caused the injury.” Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d
223, 226 (Tex. 1999). The evidence regarding OSF’s concern and input over
safety procedures at restaurants is also unavailing. The standard to determine
whether a general contractor has retained a right to control the activities of its
independent contractor is “narrow”; in order to give rise to a duty of care, the
general contractor must have “at least the power to direct the order in which
work is to be done or the power to forbid it being done in an unsafe manner.” Id.
“It is not enough that he has merely a general right to order the work stopped
or resumed, to inspect its progress or to receive reports, to make suggestions or
recommendations which need not necessarily be followed, or to prescribe
alterations and deviations.” Hoechst-Celanese, 967 S.W.2d at 356.
      Here, pursuant to the employment services agreement with OSF, OSRS
had full control over the training and supervision of management and personnel
at the Texarkana restaurant. In addition, the lease between OSF and OSD
provided: “SECURITY. [OSD] shall have full responsibility for protecting the
Premises and the property located therein from theft and robbery.” OSD was
also responsible for all maintenance and improvements, and OSF had limited
rights of access. For Texas law to impose a duty to protect against the criminal
acts of third parties, it must be established that “the defendant had specific
control over the security of the premises where the criminal act took place,”
rather than a “more general right of control over operations.” Centeq Realty, Inc.
v. Siegler, 899 S.W.2d 195, 199 (Tex. 1995). In this case, OSD had sole control
over the Texarkana restaurant’s premises, including any security issue.
      Therefore, whether the alleged security defects of the decedents’ workplace
were attributable to a lack of training or supervision, or to the condition of the


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premises, Gilbert has failed to raise a genuine issue of material fact as to OSF’s
retained “supervisory control” over the safety of the restaurant. Accordingly, we
affirm the district court’s grant of summary judgment on Gilbert’s claim that
OSF owed a duty to the decedents as employees of OSRS.
                              IV. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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