                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                   FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                         DECEMBER 13, 2010
                                                              JOHN LEY
                               No. 09-15383                    CLERK



                    D. C. Docket No. 08-20690-CV-PAS

JUSTO OJEDA,

                                               Plaintiff-Appellant,

                                  versus

LOUISVILLE LADDER INC.,

                                               Defendant-Appellee.



                Appeal from the United States District Court
                    for the Southern District of Florida


                           (December 13, 2010)


Before DUBINA, Chief Judge, BLACK and FAY, Circuit Judges.

PER CURIAM:
      Justo Ojeda, a handyman, was injured when a step ladder that he was using

collapsed. The ladder was owned by one of his customers. Ojeda brought a

products liability action against the step ladder’s manufacturer, Louisville Ladder,

Inc., seeking to recover under state law theories of strict liability and negligence.

After the case was removed to federal court, the district court granted summary

judgment for the manufacturer on both causes of action. Ojeda now appeals,

contending that decision was in error. He also challenges the district court’s

denial of his motion to file a supplemental affidavit.

                                          I.

      “We review de novo the district court’s grant of summary judgment.” Fanin

v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009). Summary

judgment is proper 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 the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(c). “Genuine disputes are those in

which the evidence is such that a reasonable jury could return a verdict for the

non-movant. For factual issues to be considered genuine, they must have a real

basis in the record.” Ellis v. England, 432 F.3d 1321, 1325-26 (11th Cir. 2005)

(citation and quotation marks omitted). “[M]ere conclusions and unsupported

                                           2
factual allegations are legally insufficient to defeat a summary judgment motion.”

Id. at 1326.

      Ojeda contends that Louisville Ladder was not entitled to summary

judgment because it did not produce affidavits in support of its motion showing

that no genuine issue of material fact existed. But a party seeking summary

judgment is not required to support its motion with affidavits. See Fed. R. Civ. P.

56(b) (“A party against whom relief is sought may move, with or without

supporting affidavits, for summary judgment on all or part of the claim.”

(emphasis added)); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548,

2553 (1986) (“[A] motion for summary judgment may be made pursuant to Rule

56 with or without supporting affidavits.” (citation and quotation marks omitted)).

The moving party is required only to “inform[] the district court of the basis for its

motion, and identify[] those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it

believes demonstrate the absence of a genuine issue of material fact.” Id. at 323;

106 S. Ct. at 2553 (citation and quotation marks omitted).

      Louisville Ladder moved for summary judgment after the discovery period

ended, arguing that summary judgment was proper because Ojeda, who conducted

no discovery, had not produced any evidence establishing that the ladder had a

                                           3
defect. See id. at 325, 106 S. Ct. at 2554 (“[T]he burden on the moving party may

be discharged by ‘showing’ – that is pointing out to the district court – that there is

an absence of evidence to support the nonmoving party’s case.”).

      In response, Ojeda produced his own affidavit, in which he stated: “I am of

the opinion that the ladder . . . was defective” because of its “improper design,

shape, size, and configuration.” Ojeda also stated that, in his opinion, the ladder

collapsed because its “lateral and angular support [did] not properly support[] [his]

weight.” These conclusory statements do not establish a disputed issue of material

fact. Under Rule 56(e), an “opposing affidavit must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the

affiant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(e). First,

the former statement is merely a legal conclusion. See Avirgan v. Hull, 932 F.2d

1572, 1577 (11th Cir. 1991) (A nonmoving party may not defeat summary

judgment by “simply relying on legal conclusions or evidence which would be

inadmissible at trial. The evidence presented cannot consist of conclusory

allegations or legal conclusions.” (citations omitted)). Moreover, both statements

would be inadmissible at trial as improper lay witness testimony. Fed. R. Evid.

701(c) (A lay witness may not offer testimony “based on scientific, technical, or

other specialized knowledge”).

                                           4
      Ojeda also asserts in his affidavit that at the time that the ladder collapsed

he was using it “within the manufactur[er’s] specifications.” He contends that this

assertion entitles him to the Cassisi inference, see Cassisi v. Maytag Co., 396 So.

2d 1140, 1148 (Fla. Dist. Ct. App. 1981), which is “a legal inference [arising

under Florida law] . . . that the subject product was defective at both the time of

the injury and the time of sale when that product malfunctions during [its] normal

operation.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1258 (11th

Cir. 2002) (citation and quotation marks omitted); see also Rink v. Cheminova,

Inc., 400 F.3d 1286, 1295 n.9 (11th Cir. 2005) (“A Cassisi inference only obviates

the need to prove a defect; a plaintiff still bears the burden to show that the defect

caused his injuries.”); McCorvey, 298 F.3d at 1260 (“Whether or not a product

survives the malfunction, ‘the facts essential for the inference’s application are

simply proof of the malfunction during normal operation.’” (quoting Cassisi, 396

So. 2d at 1151)). To be entitled to the Cassisi inference, Ojeda must show that the

ladder malfunctioned during “its normal operation.” See Cassisi, 396 So. 2d at

1148. Ojeda’s statement that he was using the ladder within the manufacturer’s

specifications is insufficient; it is merely a conclusory allegation that has no

probative value because it is not supported by specific facts. See Fed. R. Civ. P.

56(e)(2) (affidavit submitted in response to summary judgment motion must “set

                                           5
out specific facts showing a genuine issue for trial” (emphasis added)); Leigh v.

Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (“‘This court has

consistently held that conclusory allegations without specific supporting facts

have no probative value.’” (quoting Evers v. Gen. Motors Corp., 770 F.2d 984,

986 (11th Cir. 1985)). Therefore, the district court did not err in concluding that

Ojeda had not presented sufficient facts to invoke the Cassisi inference.

      Because Ojeda did not present evidence establishing the existence of a

defect, and because he is not entitled to the Cassisi inference, summary judgment

for Louisville Ladder was proper. See Cassisi, 396 So. 2d at 1143; see also Mann

v. Taser Intern., Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (“A court should grant

summary judgment when, after an adequate time for discovery, a party fails to

make a showing sufficient to establish the existence of an essential element of that

party’s case.”).

                                         II.

      Ojeda also challenges the district court’s denial of his motion to file a

supplemental affidavit. We review that decision only for abuse of discretion. See

Goulah v. Ford Motor Co., 118 F.3d 1478, 1483 (11th Cir. 1997). “An abuse of

discretion occurs if the judge fails to apply the proper legal standard or to follow

proper procedures in making the determination, or bases an award upon findings

                                          6
of fact that are clearly erroneous.” Hudson v. Int’l Computer Negotiations, Inc.,

499 F.3d 1252, 1261 (11th Cir. 2007) (citation and quotation marks omitted). The

district court denied Ojeda’s motion because he could not show excusable neglect

“for failing to submit the new evidence in the [supplemental affidavit] until after

the deadline for its summary judgment opposition.” See Farina v. Mission Inv.

Trust, 615 F.2d 1068, 1076 (5th Cir. 1980) (“[A]bsent an affirmative showing by

the non-moving party of excusable neglect according to [Federal Rule of Civil

Procedure] 6(b) a court does not abuse its discretion when it refuses to accept out-

of-time affidavits.”).1 Ojeda contends the district court’s decision was error

because Federal Rule of Civil Procedure 15(a) provides that leave to amend

pleadings should be “freely give[n] . . . when justice so requires.” However, an

affidavit is not a pleading, see Fed. R. Civ. P. 7(a), and Ojeda has not offered any

explanation for his failure to include the additional facts in his original affidavit.

No abuse of discretion occurred.

       AFFIRMED.




       1
         In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before October
1, 1981.

                                               7
