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McDonald v. Brookshire Grocery Co.

United States District Court, W.D. Louisiana, Monroe Division

April 5, 2019

MARGARET MCDONALD
v.
BROOKSHIRE GROCERY CO., ET AL.

          KAREN L. HAYES JUDGE.

          RULING

          TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE

         Pending here is a Motion for Partial Summary Judgment filed by Defendant Nationwide Building Services, Inc., (“Nationwide”) [Doc. No. 38]. Plaintiff Margaret McDonald (“McDonald”) filed an opposition [Doc. No. 48]. Nationwide filed a reply to the opposition [Doc. No. 49].

         Pending here also is McDonald's Motion for Leave to File Third Supplemental & Amended Petition for Damages [Doc. No. 43]. Nationwide has filed an opposition [Doc. No. 50].

         The motions are fully briefed and the Court is prepared to rule.

         I. FACTS AND PROCEDURAL BACKGROUND

         McDonald contends that she suffered injuries on June 20, 2016, when she slipped and fell on water left after the cleaning and buffering of the floor at Defendant Brookshire Grocery Company's (“Brookshire”) store in Jonesboro, Louisiana. On May 26, 2017, she filed a Petition for Damages against Defendants Brookshire, Nationwide, and The Travelers Indemnity Company of Connecticut (“Travelers”) in the Second Judicial District Court for the Parish of Jackson, State of Louisiana. On August 1, 2017, the lawsuit was removed to this Court.

         On November 9, 2017, the Court issued a Scheduling Order [Doc. No. 15] setting a trial date of November 13, 2018. The deadline for joinder of parties and amendment of pleadings was set as March 29, 2018.

         On March 12, 2018, McDonald filed a First Supplemental and Amended Petition [Doc. No. 16], adding as an additional Defendant Argel Building Services, Inc., (“Argel”). She alleged liability on the basis that Brookshire had retained the services of Nationwide, who in turn had retained the services of Argel, to clean the floors of the business.

         On May 3, 2018, McDonald filed a Motion to Modify Pretrial Scheduling Order [Doc. No. 21], which the Court granted [Doc. No. 23]. A new Scheduling Order was issued, re-setting the trial for April 15, 2019, and extending the deadline for joinder of parties and amendment of pleadings to August 29, 2018 [Doc. No. 24].

         On October 8, 2018, Argel filed a Motion to Continue Trial and Modify Scheduling Order [Doc. No. 27], which the Court granted [Doc. No. 28]. A new Scheduling Order was issued, resetting the trial for October 15, 2019, and extending the deadline for joinder of parties and amendment of pleadings to February 28, 2019 [Doc. No. 29].

         On February 28, 2019, McDonald filed a Motion to File Second Supplemental and Amended Petition [Doc. No. 32] adding as an additional Defendant United Specialty Insurance Company (“United”), the alleged insurer of Argel. The motion was granted after McDonald cured a deficiency, and her Second Supplemental and Amended Petition was filed on March 5, 2019 [Doc. No. 36');">36].

         On March 7, 2019, Nationwide filed the pending Motion for Partial Summary Judgment [Doc. No. 38] on the basis that it had no liability to McDonald because it had performed no floor cleaning or buffering services at the Jonesboro Brookshire store, but, rather, had sub-contracted that work to Argel, as an independent contractor.

         On March 18, 2019, Brookshire and Travelers filed a Cross Claim against Nationwide [Doc. No. 42], alleging that the written contract between Brookshire and Nationwide contained an indemnity clause which provided that Nationwide would defend, indemnify, and hold Brookshire harmless from any and all claims, damages, or obligations arising out of the performance of services in cleaning floors at the Brookshire store.

         On March 28, 2019, a month after the deadline for amendment of pleadings, McDonald filed the pending Motion for Leave to File Third Supplemental & Amended Petition for Damages [Doc. No. 43]. On that same date, she filed a Motion to Continue Trial and Modify Pretrial Scheduling Order [Doc. No. 45], which the Court denied, observing that the case had been pending since August 2017 and that the trial date had been continued twice before [Doc. No. 47].

         On March 29, 2019, McDonald filed her opposition to Nationwide's Motion for Partial Summary Judgment [Doc. No. 48]. On April 1, 2019, Nationwide filed its reply to McDonald's opposition [Doc. No. 49].

         On April 3, 2019, Nationwide filed an opposition to McDonald's Motion for Leave to File Third Supplemental & Amended Petition [Doc. No. 50].

         The motions are fully briefed, and the Court is prepared to rule.

         II. LAW AND ANALYSIS

         A. Summary Judgment

         Summary judgment ''shall [be] grant[ed] . . . 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.'' Fed.R.Civ.p. 5');">p. 56(a). 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., 242');">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.

         If the 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., 3d 1017');">19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than ''some metaphysical doubt as to the material facts.'' Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court ...


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