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Green v. Lowes Home Center LLC

United States District Court, W.D. Louisiana, Lake Charles Division

August 16, 2018

ELMO GREEN, ET AL.
v.
LOWE'S HOME CENTERS, LLC, ET AL.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY MAGISTRATE JUDGE

         Before 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.

         This 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 PREJUDICE.

         I.

         Background

         This 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.

         After 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.

         II.

         Summary Judgment Standard

          A 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.

         If the 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).

         A court 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).

         III.

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