     Case: 14-30091      Document: 00512754804         Page: 1    Date Filed: 09/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30091
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 3, 2014
NORMAL SINCLAIR,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant
v.

PETCO ANIMAL SUPPLIES STORES, INC.,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-6179


Before JOLLY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant     Normal Sinclair         (“Sinclair”) sued         Defendant-
Appellant Petco Animal Supplies Stores, Inc. (“Petco”) in state court, alleging
that Petco’s negligence in failing to maintain a safe premises caused Sinclair
to injure himself when he slipped and fell on merchandise near the checkout
counter in one of Petco’s stores. Petco removed the action to federal court. Petco
filed a motion to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).
Sinclair subsequently filed a motion to amend his complaint, which the district



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30091
court granted. The district court then granted Petco’s motion to dismiss.
Sinclair timely appealed.
      “We review de novo a district court order granting a Rule 12(b)(6) motion
to dismiss for failure to state a claim and may affirm on any basis supported
by the record.” Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir.
2013). We accept “all well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (internal quotation marks and citation omitted). To survive
dismissal, the plaintiff must plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A
complaint must fail if it offers only naked assertions devoid of further factual
enhancement.” Doe v. Robertson, 751 F.3d 383, 387 (2014) (internal quotation
marks and citation omitted).
      Sinclair argues first that the district court erred in dismissing his
complaint for failure to state a claim. Under Louisiana law, “[a] merchant owes
a duty to persons who use his premises to exercise reasonable care to keep his
aisles, passageways, and floors in a reasonably safe condition.” La. Rev. Stat.
Ann. § 9:2800.6(A). In a premises-liability action, the plaintiff has the burden
of proving, “in addition to all other elements of his cause of action,” the
following: “(1) [t]he condition presented an unreasonable risk of harm to the
claimant and that risk of harm was reasonably foreseeable”; “(2) [t]he
merchant either created or had actual or constructive notice of the condition
which caused the damage, prior to the occurrence”; and “(3) [t]he merchant
failed to exercise reasonable care.” Id. at (B). “‘Constructive notice’ means the
[plaintiff] has proven that the condition existed for such a period of time that
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                                        No. 14-30091
it would have been discovered if the merchant had exercised reasonable care.”
Id. at (C)(1). “Under Louisiana law, constructive notice requires a showing that
the dangerous condition existed for ‘some time period’ prior to the fall.” Cates
v. Dillard Dept. Stores, Inc., 624 F.3d 695, 697 (5th Cir. 2010) (citing White v.
Wal–Mart Stores, Inc., 699 So.2d 1081, 1084 (La. 1997)).
       Sinclair alleges that Petco’s “negligent acts and/or omissions,” including
its failure “to maintain its premises in a safe and hazard free condition,” were
the “sole and proximate cause of the injuries and damages” he sustained.
Sinclair alleges further that Petco “knew or should have known of the
hazardous condition of its aisles, passageways and checkout counter path”
and that the merchandise on which he allegedly tripped “presented an
unreasonable risk of harm to customers.” 1 These allegations offer no more than
“labels and conclusions,” “a formulaic recitation of the elements of a cause of
action,” and “naked assertions devoid of further factual enhancement”; they
are thus insufficient to state a claim that is plausible on its face. See Iqbal, 556
U.S. at 678 (internal quotation marks and citation omitted). Accordingly, the
district court did not err in dismissing Sinclair’s complaint for failure to state
a claim. 2
       Sinclair argues second that the district court abused its discretion in
denying him leave to amend his complaint a second time after the district court



       1  Our review of the district court’s dismissal pursuant to Rule 12(b)(6) is limited to the
allegations in the pleadings (here, Sinclair’s complaint and amended complaint). See Lone
Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); United
States v. Cont’l Common, Inc., 553 F.3d 869, 872 n.2 (5th Cir. 2008) (citing Morin v. Caire, 77
F.3d 116, 120 (5th Cir. 1996)).
        2 Sinclair’s complaint alleges further that “the doctrine of res ipsa loquitur applies in

this matter.” The district court concluded that Sinclair failed to state a claim for relief under
the doctrine of res ipsa loquitur. On appeal, Sinclair fails to raise any argument with regard
to res ipsa loquitur; accordingly, that argument is waived. See Hannah v. United States, 523
F.3d 597, 600 n.1 (5th Cir. 2008); Miller v. Nationwide Life Ins. Co., 391 F.3d 698, 701 n.1
(5th Cir. 2004).
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ruled on the motion to dismiss. “Decisions concerning motions to amend are
entrusted to the sound discretion of the district court.” Jones v. Robinson
Property Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (internal quotation marks
and citation omitted). The district court may consider multiple factors,
“including undue delay, bad faith or dilatory motive on the part of the movant,
repeated failures to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, and futility of the amendment.” Id. The district court granted
Sinclair leave to amend his complaint once, and Sinclair was unable to cure
the deficiencies in his original complaint. Sinclair has failed to demonstrate, in
the district court and on appeal, how another amendment would cure the
deficiencies in his complaint. Accordingly, the district court did not abuse its
discretion in denying Sinclair leave to amend his complaint a second time. See
Goldstein v. MCI WorldCom, 340 F.3d 238, 254-55 (5th Cir. 2003) (finding no
abuse of discretion where plaintiff had one opportunity to amend, could not
correct deficiencies in complaint, and could not show how another amendment
would correct deficiencies); Jamieson By and Through Jamieson v. Shaw, 772
F.2d 1205, 1208 (5th Cir. 1985) (explaining that “[a]mong the acceptable
justifications for denying leave to amend are . . . repeated failure to cure
deficiencies by prior amendment . . . and the futility of the amendment.”).
      We AFFIRM the district court’s judgment. We further DENY Appellee’s
opposed motion to strike portions of Appellant’s brief.




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