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Green v. Dollar General

United States District Court, E.D. Louisiana

March 16, 2018

PAMELA GREEN
v.
DOLLAR GENERAL AND ABC INSURANCE COMPANY

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is Pamela Green's expedited motion to continue the submission date of the defendant's motion for summary judgment. For the reasons that follow, the motion is GRANTED.

         Background

         Pamela Green visited a Dollar General store in Violet, Louisiana on the evening of March 5, 2016. When she opened the door to the store freezer to retrieve some popsicles, an insulated plastic half-gallon jug called the Igloo Legend Beverage Cooler fell from its perch above the freezer onto Green's head. The contact allegedly caused a cervical herniation at the C-5/6 level. The insulated jug weighed 1.1 lbs.

         Green sued DG Louisiana, LLC (Dollar General) in the 34thJudicial District Court in St. Bernard Parish on January 27, 2017. The action was removed to this Court on March 13, 2017. It was set for trial on October 10, 2017, but was continued. The trial is now scheduled to take place on June 25, 2018. On March 5, 2018, the defendant filed a motion for summary judgment. The motion heavily relied on the deposition of Mindy McBride, a Dollar General employee. McBride testified that she had inspected the cooler placement an hour and a half before the incident, that the employees perform safety checks of the shelves and freezers three times a day, and that she personally tested the stability of the coolers by performing a “bump test.” According to McBride, shortly after the incident she bumped up against the freezers and slammed their doors and yet the stacked coolers did not move. On March 12, 2018, the plaintiff filed a motion to continue the submission date of the defendant's motion for summary judgment, and a motion to expedite the motion to continue.

         The motion asks to continue the submission date from March 21, 2018 until discovery is complete on May 10, 2018, pursuant to Federal Rule of Civil Procedure 56(d). It alleges that the plaintiff's counsel recently became aware that Mindy McBride was intimidated and coerced by her former manager at Dollar General, Mike Wiltz, before giving her deposition. Eric O'Bell, counsel for plaintiff, stated in a sworn declaration that McBride approached Green, told her that she was coerced, and provided copies of text messages between McBride and Wiltz. The plaintiff did not provide copies of the text messages to the Court with the initial moiton. The motion to continue also states that the defendant has not provided the plaintiff with a working copy of the video surveillance of the premises from the day of the incident. Further, Green plans to depose former store manager, Mike Wiltz, and a former employee on duty during the incident, Katie Martinez. The plaintiff claims that obtaining the video, deposing the additional witnesses, and revisiting and assessing the credibility of McBride's testimony, which the defendant's motion relies on, will create a genuine issue of material fact.

         On March 13, 2018, the Court granted the motion to expedite, reset the submission date to March 15, 2018, and ordered the defendant to submit his opposition by March 14, 2018. The defendant submitted a timely opposition, and the plaintiff filed a reply. The plaintiff also submitted a sworn affidavit by Green and copies of the text messages. Additionally, the plaintiff submitted an opposition to the motion for summary judgment.

         In an affidavit attached to Green's reply, Green states that she knew McBride before the incident because they went to high school together. On November 2, 2017, McBride contacted Green via Facebook Messenger asking Green to call her. McBride told Green that before the deposition, she had been contacted by her supervisor via text and that he informed her that she could be held personally responsible if Dollar General was found at fault. McBride emailed the text messages to Green on November 3, 2017. They have not communicated since. Green attached a copy of the texts to the reply. In response to a text from Mindy McBride stating that she has the deposition for Green tomorrow, a contact named “Mike Dollar General” replied:

I thought that was a couple of weeks ago. [J]ust remember what I said if your store is found to be negligent then that is a direct reflection on you and you could be terminated for failing to protect company assets so you better say whatever it is you have to say to cover your ass.

         Mindy responded, “I know.” The deposition took place on July 28, 2017. Notably, Mike Wiltz was terminated from Dollar General on April 9, 2017 and was not her manager when she gave the deposition.

         I.

         Federal Rule of Civil Procedure 56(d) permits a district court to defer considering a pending motion for summary judgment “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Rule 56(d) motions “are broadly favored and should be liberally granted” because they “safeguard non-moving parties from summary judgment motions that they cannot adequately oppose.” Culwell v. City of Fort Worth, 468 F.3d 868, 872 (5th Cir. 2006). Regardless, the party seeking a continuance “may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)(quoting Sec. & Exch. Comm'n v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). Instead, the party ...


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