United States District Court, W.D. Louisiana, Monroe Division
L. HAYES Judge
A. DOUGHTY UNITED STATES DISTRICT JUDGE
before the Court is an unopposed Motion for Summary Judgment
[Doc. No. 33] filed by Defendant Coca-Cola Bottling Company
United, Inc. (“CCBCU”). For the following
reasons, the motion is GRANTED.
FACTS AND PROCEDURAL HISTORY
October 3, 2016, Plaintiff Shirley Davison
(“Davison”) was shopping at the Wal-Mart store in
Rayville, Louisiana. She was using a motorized cart to assist
her. She proceeded down the drink aisle and stopped her cart
next to the shelving area where Sam's Cola bottles were
stocked. She alleges that she stood up from her cart and
picked up two Sam's Cola bottles from the top shelf and
then placed them in her cart. She sat back down to review her
shopping list. During the time Davison sat next to the
shelving, she alleges that two Sam's Cola two-liter
bottles fell and struck her neck and shoulder area.
August 4, 2017, Davison filed suit in the Fifth Judicial
District Court for the Parish of Rayville, State of
Louisiana. She brought suit against Wal-Mart Stores, Inc.,
and The Coca-Cola Company. She alleged that The Coca-Cola
Company was negligent.
August 29, 2017, Davison amended the state court Petition to
name CCBCU as Defendant in place of The Coca-Cola Company.
December 22, 2017, the matter was removed to this Court.
April 26, 2018, Davison filed a Second Amended Complaint in
this Court, again asserting claims against CCBCU and
clarifying that all claims asserted against The Coca-Cola
Company in the original Petition are now asserted against
January 3, 2019, CCBCU filed the instant Motion for Summary
Judgment, seeking dismissal of all claims against it. Davison
did not file a memorandum in opposition to the motion. The
Court is now prepared to rule.
LAW AND ANALYSIS
Standard of Review
Federal Rule of Civil Procedure 56(a), “[a] party may
move for summary judgment, identifying each claim or
defense--or the part of each claim or defense--on which
summary judgment is sought. The court shall grant summary
judgment if 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.” The moving party bears
the initial burden of informing the court of the basis for
its motion by identifying portions of the record which
highlight the absence of genuine issues of material fact.
Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir.
1992); see also Fed. R. Civ. P. 56(c)(1) (“A
party asserting that a fact cannot be . . . disputed must
support the assertion by . . . citing to particular parts of
materials in the record . . .). A fact is
“material” if proof of its existence or
nonexistence would affect the outcome of the lawsuit under
applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a
material fact is “genuine” if the evidence is
such that a reasonable fact finder could render a verdict for
the nonmoving party. Id.
moving party can meet the initial burden, the burden then
shifts to the nonmoving party to establish the existence of a
genuine issue of material fact for trial. Norman v.
Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). In
evaluating the evidence tendered by the parties, the Court
must accept the evidence of the nonmovant as credible and
draw all justifiable inferences in its favor.
Anderson, 477 U.S. at 255. However, “a party
cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions, or only a scintilla of