     Case: 13-30746      Document: 00512570900         Page: 1    Date Filed: 03/24/2014




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

                                                                                    FILED
                                    No. 13-30746                               March 24, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
BRENDA ADAMS,

                                                 Plaintiff – Appellant
v.

DOLGENCORP, L.L.C.,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                            U.S.D.C. No. 3:11-CV-784


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Brenda Adams appeals the district court’s grant of summary judgment
to Dolgencorp, L.L.C. (“Dollar General”) for injuries she suffered after slipping
on spilled lotion and falling in a Dollar General store. We AFFIRM.
                FACTUAL AND PROCEDURAL BACKGROUND
       In May 2011, Brenda Adams visited a Dollar General store in Baton
Rouge, Louisiana to purchase various items.                      The store opened at


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-30746
approximately 8:00 a.m. and Adams arrived between 9:00 and 9:30 a.m.
Adams alleges after turning a corner from one aisle to another, she slipped on
a fluid substance later determined to be lotion. She claims the resulting fall
caused injuries to her wrists, shoulders, and knees.
      She originally brought this suit in Louisiana state court. Dollar General
removed the case to the United States District Court for the Middle District of
Louisiana pursuant to the court’s diversity jurisdiction. Throughout the course
of the litigation, the parties disputed the relevance and availability of the
security camera footage taken the day Adams was injured in the store.
Pursuant to company policy, once a person has been injured in the store, Dollar
General copies and preserves security camera footage from thirty seconds
before the injured person entered the store and ending thirty seconds after that
person left. Adams rests some of her argument on the preserved and existing
footage, but she also has arguments related to unavailable footage. The district
court granted summary judgment to Dollar General. In addition, the district
court three times denied Adams leave to amend her complaint to add claims of
spoliation of evidence against individual employees and later against Dollar
General for not maintaining all of the security camera footage Adams wished
to review. Adams appeals.
                                 DISCUSSION
      We review a district court’s grant of summary judgment de novo.
Summary judgment is proper “if the movant shows there is no genuine dispute
as to any material fact.” Fed. R. Civ. P. 56(a). A genuine dispute of material
fact exists only if “a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A district
court’s decision to deny a motion for leave to amend is reviewed for an abuse
of discretion. S&W Enter., L.L.C. v. SouthTrust Bank of Alabama, NA, 315
F.3d 533, 535 (5th Cir. 2003).
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A. Negligence
      To prevail in a negligence claim under Louisiana law against Dollar
General, Adams must prove:
      (1) The condition presented an unreasonable risk of harm to the
      claimant and that risk of harm was reasonably foreseeable.
      (2) The merchant either created or had actual or constructive
      notice of the condition which caused the damage, prior to the
      occurrence.
      (3) The merchant failed to exercise reasonable care.

LA. REV. STAT. § 9:2800.6(B).


      “Constructive notice” means the claimant has proven that the
      condition existed for such a period of time that it would have been
      discovered if the merchant had exercised reasonable care. The
      presence of an employee of the merchant in the vicinity in which
      the condition exists does not, alone, constitute constructive notice,
      unless it is shown that the employee knew, or in the exercise of
      reasonable care should have known, of the condition.

Id. § 9:2800.6(C)(1).

      The Louisiana Supreme Court has interpreted this statute to mean that
the plaintiff has the burden of showing the dangerous condition existed for
some discrete period of time; it is not enough simply to show that the condition
existed before the plaintiff’s injury. White v. Wal-Mart Stores, Inc., 699 So. 2d
1081, 1084 (La. 1997).
      The summary judgment evidence consisted primarily of the testimony of
Yolanda Hunter, a Dollar General employee who was working in the
immediate vicinity of Adams’ fall, and the security camera footage partially
showing the area near where Adams slipped and fell. The footage does not
show the portion of the floor where the lotion spilled, nor does it actually show
the spilled lotion. Hunter stated that she inspected all of the aisles and opened
the store before 8:00 a.m., at which time there was no lotion on the floor.
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                                  No. 13-30746
Further, she stated she was working very near the area where Adams fell and
that she was not aware of the spilled lotion until she and another employee
helped Adams to her feet.
      Adams argues that the presence of Hunter and other Dollar General
employees in the immediate vicinity of the spilled lotion is enough to create a
genuine issue of material fact as to whether Dollar General had actual or
constructive notice and as to whether those employees were exercising the
reasonable care required under Section 9:2800.6(C)(1). She further argues
that the security camera footage showing Adams walking to the aisle where
she was injured indicates the lotion must have been on the floor for long enough
to be discovered.
      Dollar General argues this is not enough to show actual or constructive
notice, because the “presence of an employee . . . in the vicinity in which the
condition exists” is not enough to support a finding of constructive notice,
“unless it is shown that the employee knew, or in the exercise of reasonable
care should have known, of the condition.” See LA. REV. STAT. § 9:2800.6(C)(1).
Dollar General further argues that the security camera footage does not
actually show the area of the floor where the lotion was spilled, but that even
if it did, footage merely showing the presence of the condition is not enough to
show it was there long enough to be discovered. We agree.
      Adams’ argument that the employees’ presence in the immediate vicinity
of the spilled lotion gives rise to an inference of constructive notice fails under
the plain language of Section 9:2800.6(C)(1). She further failed to present any
evidence of how or why the lotion was spilled, much less any showing that
Hunter or any other Dollar General employee were exercising less than
reasonable care in not discovering it. See id. With respect to Adams’ argument
that the available security camera footage should give rise to an inference that
the lotion was on the floor long enough to be discovered, we find one of our
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unpublished opinions instructive. See Taylor v. Wal-Mart Stores, 464 F. App’x
337 (5th Cir. 2012). In Taylor, security camera footage showing a particular
area of a store, which captured a time period of one hour prior to the plaintiff’s
fall, revealed that one person had shuffled past the allegedly wet portion of the
floor. Id. at 338-39. We noted that the footage did not clearly show any liquid
on the floor, but that it did show numerous other individuals passing through
the area without incident. Id. “Mere speculation or suggestion is not sufficient
to meet this burden, and courts will not infer constructive notice for purposes
of summary judgment where the plaintiff’s allegations are no more likely than
any other potential scenario.” Id. at 339 (quoting Bagley v. Albertsons, Inc.,
492 F.3d 328, 330 (5th Cir. 2007)). We accept that analysis and find it to be
applicable here.
      Here, where the footage does not show the substance nor the area of the
floor on which the substance was spilled, we conclude the temporal inference
Adams seeks to draw from the footage would be inappropriate. See id. Adams
has failed to produce evidence showing Dollar General had actual or
constructive notice of the spilled lotion or any evidence showing when or how
the lotion was spilled. We conclude the district court did not err by granting
summary judgment to Dollar General on Adams’ negligence claim.
B. Denial of Leave to Amend
      Adams filed three separate motions for leave to amend her complaint.
The first two were attempts to add a spoliation of evidence claim against
individual employees as defendants. The third sought to add the claim of
spoliation of evidence against Dollar General due to the security camera
footage preservation policy and because it no longer had custody of the lotion
bottle. Adams argues that Dollar General’s footage retention policy resulted
in the deletion of video that would have shown when and how the lotion was
spilled. If she had the now-deleted footage, Adams argues, she could bear her
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                                    No. 13-30746
burden of showing enough passage of time to support her claim of constructive
notice.
         The first motion was denied without prejudice for failure to allege all the
elements of spoliation against individual defendants, but not Dollar General.
The second was denied with prejudice for substantially the same reasons – but
against different individual defendants – and the additional reason that higher
scrutiny is applied to amendments that would destroy complete diversity due
to the Louisiana residency of the added individual defendants. The third
sought to bring the spoliation of evidence against Dollar General and was
denied because it was filed ten months after the deadline for amended
pleadings in the scheduling order and the district court concluded it failed to
meet the “good cause” standard for altering scheduling orders. See FED. R. CIV.
P. 16.
         In Louisiana, the “tort of spoliation of evidence provides a cause of action
for an intentional destruction of evidence carried out for the purpose of
depriving an opposing party of its use.” Burge v. St. Tammany Parish, 336
F.3d 363, 374 (5th Cir. 2003). In her first two amended complaints, Adams
alleges only that various individual defendants permitted important evidence
to be destroyed. Neither of Adams’ first two amended complaints allege facts
showing any individual defendant intentionally destroyed the footage “for the
purpose of depriving [Adams] of its use.” See id. We conclude the district court
did not abuse its discretion by denying Adams’ first two motions for leave to
amend her complaint, since both proposed amendments fail to properly state a
claim for spoliation.
         Adams filed her third amended complaint on February 15, 2013 – nearly
ten months after the scheduling order’s April 25, 2012 deadline for amended
pleadings. Adams then alleged spoliation and impairment of a civil claim
against Dollar General, after having not included it in her previous two
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amended pleadings. The district court denied this motion because Adams
could not show “good cause” for her failure to assert these claims within the
deadlines set by the scheduling order. See FED. R. CIV. P. 16. The district court
applied the four-factor test we used in Reliance Ins. Co. v. La. Land & Exp. Co..
See 110 F.3d 253, 257 (5th Cir. 1997). The four factors are: “(1) the explanation
for the failure to [add two claims against Dollar General]; (2) the importance
of the testimony; (3) potential prejudice in allowing the testimony; and (4) the
availability of a continuance to cure such prejudice.” Id. The district court
applied these factors, concluding only the second factor weighed in Adams’
favor. The district court determined Adams was aware of what footage was
available and what footage was not well before the deadline; the defendant
would be prejudiced by having to undertake yet more discovery; and a
continuance would unnecessarily delay the resolution of the litigation. The
district court did not abuse its discretion by denying Adams’ third motion based
on these conclusions.
      AFFIRMED.




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