United States District Court, W.D. Louisiana, Lake Charles Division
ELMO GREEN, ET AL.
LOWE'S HOME CENTERS, LLC, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY MAGISTRATE JUDGE
the court is a Motion for Summary Judgment [doc. 38] filed
pursuant to Federal Rule of Civil Procedure 56 by defendant
Southeast Roofing & Construction, Inc.
(“Southeast”). Plaintiffs Elmo Green and Sarah
Green oppose the motion. Doc. 45.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636. For the reasons stated below,
IT IS RECOMMENDED that the Motion for
Summary Judgment be GRANTED and that all
claims against Southeast be DISMISSED WITH
case arises from the replacement of the roof on
plaintiffs' home. Doc. 1, att. 1, p. 5. Plaintiffs
contracted with defendant Lowe's Home Centers, LLC
(“Lowe's”) for the installation of the roof,
and Lowe's in turn arranged for defendant Southeast to
complete the work via an invoice showing the labor charge and
instructions showing the date of installation. Id.;
see doc. 45, att. 6, pp. 8-9 (contract); doc. 38,
att. 3 (affidavit and exhibits from Southeast president).
Plaintiffs allege that the new roof began leaking shortly
after Southeast completed the work, resulting in extensive
structural damage to plaintiffs' home and their exposure
to toxic mold. Doc. 1, att. 1, pp. 5-8. On April 15, 2016,
they brought suit in the 14th Judicial District Court, Parish
of Calcasieu, State of Louisiana, claiming that Lowe's
and Southeast breached their respective duties to the
plaintiffs and are liable for their damages. Id. In
the petition, they also alleged that the roof installation
“did not begin until after April 16, 2015.”
Id. at 5.
removing the case to this court on the basis of diversity
jurisdiction, 28 U.S.C. § 1332 [doc. 1], Southeast filed
the instant motion for summary judgment. Doc. 38. Here it
asserts that the roof work began on April 6, 2015, and was
completed the following day. Doc. 38, att. 1. Based on
plaintiffs' testimony that the roof began to leak in a
storm two days after the installation, Southeast asserts, the
plaintiffs must have noticed the water damage by April 9,
2015. Id.; see docs. 38, atts. 4 & 5.
Accordingly, Southeast maintains that plaintiffs' claims
against it have prescribed under Louisiana's one year
prescriptive period for tort claims. Doc. 38, att. 1.
Plaintiffs oppose summary judgment and contend that there are
genuine issues of material fact as to (1) when they became
aware of the water damage and (2) whether they had a contract
with Southeast, which would place their claims under a
ten-year prescriptive period instead. Doc. 45.
court should grant a motion for summary judgment when the
movant shows “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
2511 (1986) (quotations omitted). This requires more than
mere allegations or denials of the adverse party's
pleadings. Instead, the nonmovant must submit
“significant probative evidence” in support of
his claim. State Farm Life Ins. Co. v. Gutterman,
896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 106 S.Ct.
at 2511 (citations omitted).
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008).