     Case: 10-60236 Document: 00511319733 Page: 1 Date Filed: 12/13/2010




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

                                                 FILED
                                                                         December 13, 2010

                                     No. 10-60236                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



SUSAN MICHELE PARKER; CARL GREGG PARKER,

                                                   Plaintiffs - Appellants
v.

WAL-MART STORES, INCORPORATED,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:05-CV-768


Before KING, BENAVIDES and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiffs - Appellants, Susan Parker and Carl Parker, sued Defendant -
Appellee, Wal-Mart Stores, after Mrs. Parker injured herself while stepping
onto a curb in Wal-Mart’s parking lot. After the district court granted summary
judgment in favor of Wal-Mart, the Parkers moved for relief from the judgment
under F EDERAL R ULE OF C IVIL P ROCEDURE 60(b). The district court denied the
Parkers’ motion. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                     I. Factual and Procedural Background
      On September 30, 2003, Susan Michelle Parker went to purchase party
supplies at the Flowood, Mississippi Wal-Mart. Mrs. Parker alleges a crack in
the curb in front of that Wal-Mart caused her to fall and break her ankle.
      Mrs. Parker brought an action against Wal-Mart in Mississippi state court
seeking actual and punitive damages under Mississippi premises liability law.
Mr. Parker also asserted a claim against Wal-Mart for loss of consortium.
Shortly thereafter, Wal-Mart removed the action to the United States District
Court for the Southern District of Mississippi on the basis of diversity
jurisdiction.
      The Parkers served Wal-Mart with interrogatories and requests for
production regarding Wal-Mart’s safety policies at the time of Mrs. Parker’s
accident.1 The Parkers claim that, in response to their discovery requests, Wal-
Mart produced “Slip, Trip, and Fall Guidelines” dated September 16, 2004 (“2004



      1
          The relevant interrogatories read:

      INTERROGATORY NO. 1: Please state in detail what Wal-Mart’s policies and
      procedures are that their agents, employees or representatives are to follow
      when they discover a condition on the premises which could rise to injury.
      ....
      INTERROGATORY NO. 6: Please state whether Wal-Mart had any procedures
      for regular inspection of the condition of the premises at the time of the
      occurrence in question? If so, please describe.

The relevant request for production of documents read:

      REQUEST NO. 5: Please produce copies of any rules, management guidelines,
      operating guidelines, or other similar writing or document that purports to
      show operating procedures for the management, care, maintenance, repair, and
      service of the premises in question.


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Guidelines”), which post-dated Mrs. Parker’s accident. These guidelines require
Wal-Mart employees to “[e]nsure the parking lot is free from . . . cracked
sidewalks and curbs” and to “[a]lert a salaried member of management when
these items are in need of repair.”
      On February 28, 2007, the district court granted Wal-Mart’s motion for
summary judgment, reasoning the curb was not an unreasonably unsafe
condition as a matter of law. The Parkers appealed, and this court affirmed.
      During the pendency of their appeal, the Parkers obtained a copy of Wal-
Mart’s August 2003 “Slip, Trip, and Fall Guidelines” (“2003 Guidelines”), which
contained identical language to the 2004 Guidelines. The Parkers filed a motion
before this court to supplement the record with the 2003 Guidelines. Shortly
after that motion was filed, however, they voluntarily withdrew it after Wal-
Mart notified the Parkers that the 2004 Guidelines were in effect at the time of
Mrs. Parker’s injury. In withdrawing the motion, the Parkers directed this court
to treat the 2004 Guidelines as evidence of Wal-Mart’s negligence.
      After this court affirmed the district court’s order granting Wal-Mart’s
motion for summary judgment, the Parkers filed a Rule 60(b) motion in the
district court. The Parkers argued their claim would have survived Wal-Mart’s
summary judgment motion had Wal-Mart properly produced the 2003
Guidelines.
      The district court denied the Parkers’ Rule 60(b) motion. The court held
the 2003 Guidelines would not have changed the outcome of its ruling on Wal-
Mart’s motion for summary judgment. The district court held that the Parkers
were not entitled to relief under Rule 60(b) because they had not proven either
that Wal-Mart improperly withheld the 2003 Guidelines or that this withholding


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had prevented them from fully and fairly presenting their case.
                                  II. Analysis
A. Standard of Review
      We review a district court’s denial of a Rule 60(b) motion for relief from a
final judgment or order for abuse of discretion. Seven Elves, Inc. v. Eskenazi, 635
F.2d 396, 402 (5th Cir. Unit A Jan. 1981).
B. Waiver
      As a preliminary matter, Wal-Mart argues that the Parkers waived review
of the district court’s denial of their Rule 60(b) motion because they characterize
their appeal as seeking review of the district court’s order granting summary
judgment, which this court has already affirmed. Wal-Mart correctly contends
the issue for review is denial of the Parkers’ Rule 60(b) motion and that our
review will therefore necessarily “be narrower in scope than review of the
underlying order of dismissal.” Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382,
386 (5th Cir. 1978).
      The Parkers’ discussion of the actual merits of their appeal remains
largely unchanged from their properly pleaded Rule 60(b) motion below.
Therefore, this court will address the merits of the Parkers’ appeal.
C. Rule 60(b)(2) Relief
      The Parkers argue they are entitled to relief under Rule 60(b)(2) because
they did not obtain a copy of the 2003 Guidelines until after the district court
had granted Wal-Mart’s motion for summary judgment. Rule 60(b)(2) allows for
relief from a final judgment based on “newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to move for a new
trial under Rule 59(b).” The Parkers must therefore demonstrate: “(1) that


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[they] exercised due diligence in obtaining the [2003 Guidelines]; and (2) that the
evidence is material and controlling and clearly would have produced a different
result if present before the original judgment.” Helsing v. CSX Transp., Inc., 396
F.3d 632, 639 (5th Cir. 2005). Because we conclude the Parkers have failed to
prove the 2003 Guidelines were material and controlling, we need not decide
whether the Parkers exercised due diligence in obtaining the 2003 Guidelines.
See id. at 641 (addressing only whether evidence was material to determination
of the case below).
      Earlier production of the 2003 Guidelines would not have resulted in
denial of Wal-Mart’s motion for summary judgment. As a business invitee, Wal-
Mart owed Mrs. Parker a duty to “keep the premises reasonably safe, and when
not reasonably safe, to warn only where there is hidden danger or peril that is
not in plain and open view.” Massey v. Tingle, 867 So. 2d 235, 239 (Miss. 2004)
(citation and internal quotation marks omitted). As noted above, both this court
and the district court have previously held that Wal-Mart’s curb was not an
unreasonably dangerous condition as a matter of law. Therefore, the Parkers’
argument hinges on whether the 2003 Guidelines establish an independent basis
from which a jury could conclude that Wal-Mart breached the duty of care owed
to invitees by not complying with its own internal policies.
      Under Mississippi law, “breach of one’s internal policies may be considered
in determining whether one has exercised the appropriate standard of care.”
Boyd Tunica, Inc. v. Premier Transp. Servs., Inc., 30 So. 3d 1242, 1253 (Miss. Ct.
App. 2010). As the district court correctly noted, however, internal policies are
only one consideration among many in that determination. See Steele v. Inn of
Vicksburg, 697 So. 2d 373, 377 (Miss. 1997) (affirming denial of judgment


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notwithstanding a verdict in defendant’s favor despite “ample evidence” of
defendant’s violation of its internal safety policies).
      The production of the 2003 Guidelines would not have changed the
outcome of the Parkers’ opposition to Wal-Mart’s motion for summary judgment.
The Parkers’ supported their failed opposition to Wal-Mart’s motion for
summary judgment with an expert affidavit evaluating Wal-Mart’s fault, which
concluded Wal-Mart had breached its duty of care based, in part, on its failure
to comply with the 2004 Guidelines. Moreover, the expert’s opinion would not
have changed if it had been based on the 2003 Guidelines, rather than the 2004
Guidelines, because the language in both sets of guidelines is identical. Thus,
the district court was fully able to evaluate the import of Wal-Mart’s internal
policies at summary judgment and nevertheless granted summary judgment in
favor of Wal-Mart.
      Additionally, we are not aware of any cases in which a party’s violation of
its own internal safety policies established a dangerous condition per se.
Accordingly, the district court did not abuse its discretion in denying the
Parkers’ Rule 60(b)(2) motion.
D. Rule 60(b)(3) Relief
      The Parkers next argue that they are entitled to relief under Rule 60(b)(3)
because Wal-Mart engaged in misconduct by failing to produce the 2003
Guidelines in response to a discovery request. Rule 60(b)(3) allows for relief
from a final judgment in the event of “fraud . . . misrepresentation, or other
misconduct of an adverse party.” A party is entitled to relief under Rule 60(b)(3)
if: “(1) the adverse party engaged in fraud or misconduct, and (2) . . . this
misconduct prevented the moving party from fully and fairly presenting his


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case.” Helsing, 396 F.3d at 641. The movant must prove misconduct by clear
and convincing evidence. Id.
      1. Misconduct
      The Parkers have failed to establish by clear and convincing evidence that
Wal-Mart improperly withheld the 2003 Guidelines. This court has previously
held that the failure to produce documents that are responsive to interrogatories
and discovery requests, when coupled with awareness of those documents,
establishes misconduct. See Rozier v. Ford Motor Co., 573 F.2d 1332, 1341–42
(5th Cir. 1978).
      The Parkers’ have not proven that Wal-Mart withheld the relevant
guidelines. After the Parkers moved to supplement the record with the 2003
Guidelines, Wal-Mart notified the Parkers that the 2004 Guidelines were,
consistent with the Parkers’ discovery request, the guidelines in force at the time
of Mrs. Parker’s injury. At no stage of litigation did Wal-Mart argue that the
guidelines from which the Parkers’ expert concluded Wal-Mart had violated its
standard of care were not applicable at the time of the accident. Wal-Mart ought
not be penalized for the Parkers’ supposition, without further investigation, that
the produced guidelines did not comply with the discovery request.
      The fact that Wal-Mart also sought to rectify any faulty production to the
Parkers also militates against finding misconduct on its part. See id., 573 F.2d
at 1342 (finding misconduct, in part, because counsel did not make efforts to
rectify incorrect interrogatory answers upon discovery of requested documents).
      2. Full and Fair Presentation
      As a final matter, the Parkers have not proven that Wal-Mart’s failure to
produce the 2003 Guidelines prevented them from fully and fairly presenting


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their case. The Parkers argue that they were prejudiced by Wal-Mart’s failure
to produce the 2003 Guidelines because they were unable to argue that Wal-
Mart had violated its internal safety policies at the time of Mrs. Parker’s injury.
See Rozier, 573 F.2d at 1342 (“Inevitably, information developed in the discovery
stages of the case influenced the decision as to which theories would be
emphasized at trial.”). We disagree.
      The 2003 and 2004 Guidelines contain identical language regarding curb
maintenance. Based on that language, derived from the 2004 Guidelines, the
Parkers developed expert testimony on Wal-Mart’s standard of care and breach
of that standard of care. The Parkers supported their opposition to Wal-Mart’s
motion for summary judgment with an expert affidavit concluding Wal-Mart
breached its standard of care based on those same guidelines, which the Parkers
now contend were not applicable at the time of the accident.          Finally, the
Parkers directed this court, after withdrawing their motion to supplement the
record when appealing the district court’s grant of summary judgment, to treat
the 2004 Guidelines as evidence of Wal-Mart’s negligence.              Wal-Mart’s
production of the 2004 Guidelines clearly did not make “a difference in the way
[the Parkers’] counsel approached the case or prepared for trial.” Id. (citation
and internal quotation marks omitted). The district court did not abuse its
discretion in denying the Parker’s Rule 60(b)(3) motion.
                                III. Conclusion
      For the above reasons, we AFFIRM.




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