Austin v. Kroger Tex. L.P.

• Citation: 182 F.Supp.3d 633
• Decision Date: 25 April 2016
• Docket Number: CIVIL ACTION NO. 3:11-CV-1169-B
• Parties: Randy J. Austin, Plaintiff, v. Kroger Texas L.P., Defendant.
• Court: U.S. District Court — Northern District of Texas

182 F.Supp.3d 633

Randy J. Austin, Plaintiff,

v.Kroger Texas L.P., Defendant.

CIVIL ACTION NO. 3:11-CV-1169-B

United States District Court, N.D. Texas, Dallas Division.

Signed April 25, 2016

Michael R. Mitchell, Brent S. Freefield, Mackenzie Boyd Linyard, Rad Law Firm PC, Jeff Benton, The Benton Law Firm, Matthew J. Kita, Dallas, TX, for Plaintiff.

Donna C. Peavler, B. Kyle Briscoe, The Peavler Group, Grapevine, TX, Kimberly P. Harris, Beasley, Hightower & Harris, P.C., Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

Before the Court are Defendant Kroger Texas L.P.'s Motion for Summary Judgment (Doc. 96) and Plaintiff Randy J. Austin's Motion to Reconsider Order Denying Plaintiff's Motion for Leave to File Surreply (Doc. 113). For the reasons that follow, the Court GRANTS the Motion for Summary Judgment and DENIES the Motion to Reconsider.

I. BACKGROUND

This is a negligence case in which Plaintiff Randy J. Austin ("Austin") is suing his employer Kroger Texas L.P. ("Kroger") for failing to provide him with an instrumentality necessary to safely perform his job—a cleaning product called Spill Magic. See Doc. 89, Am. Compl. ¶ 10. At the time of his accident, Austin worked as a utility clerk¹ at one of Kroger's locations in Mesquite, Texas. Id. ¶ 5; Doc. 98-1, Ex. E, Austin Dep. 24:9–11. As a utility clerk, he had a wide range of duties, including picking up trash, sweeping the store, bagging groceries, retrieving carts, and mopping the store and restrooms. Doc. 98-1, Ex. E, Austin Dep. 24:13–18. It was while performing this last task that Austin sustained the injuries that gave rise to this suit. Id. at 48:7–16; Doc. 89, Am. Compl. ¶ 7.

On July 27, 2009, Austin was inspecting the men's bathroom when he discovered a "brownie oily looking substance" covering approximately eighty percent of the floor. Doc. 98-1, Ex. E, Austin Dep. 54:18, 57:21. Using the supplies on his utility cart,² which Kroger provided, Austin began to clean the spill. Id. at 37:24, 38:10–11, 66:17. Normally, his cart included a product called Spill Magic, which is used to absorb liquid spills. Id. at 38:4, 14–16. On the day of the incident, however, Kroger was out of Spill Magic, so Austin attempted to use dry mop heads to absorb the liquid. Id. at 48:20–49:14, 55:17, 56:14–21. He had successfully cleaned a similar spill in the women's restroom using this technique, and managed to clean thirty to forty percent of the men's room before he slipped. Id. at 62:10–14, 90:19–92:10. The fall resulted in a broken femur

and dislocated hip, which required surgery to repair. Id. at 104:13–18; Doc. 89, Am. Compl. ¶ 7.

Austin originally filed suit in the County Court at Law No. 2 in Dallas County, Texas, seeking damages on negligence, premises liability, and gross negligence theories of liability. Doc. 2, Notice of Removal, Ex. A, Original Pet. 1–4. In June 2011, Kroger removed the case to this Court, where it later obtained summary judgment on all of Austin's claims. Doc. 2, Notice of Removal; Doc. 67, Mem. Op. & Order. Austin then appealed to the Fifth Circuit, which initially affirmed summary judgment on the gross negligence claim and reversed on the premises liability and ordinary negligence claims. Austin v. Kroger Tex. L.P. , 731 F.3d 418 (5th Cir.2013). After Kroger petitioned for rehearing en banc , the Fifth Circuit denied the petition but withdrew its original opinion and certified a question regarding an ambiguity in Texas' premises liability law to the Texas Supreme Court. Austin v. Kroger Tex. L.P. , 746 F.3d 191 (5th Cir.2014). That court heard the case and answered the question in a way that supported this Court's initial ruling on Austin's premises liability claim. Austin v. Kroger Tex., L.P. , 465 S.W.3d 193 (Tex.2015). Accordingly, the Fifth Circuit affirmed summary judgment on Austin's gross negligence and premises liability claims, but reversed on the ordinary negligence claim and remanded it to this Court to consider "whether Austin could pursue a claim based on Kroger's alleged failure to provide a necessary instrumentality of his employment."³ \Austin v. Kroger Tex. L.P. , 614 Fed.Appx. 784 (5th Cir.2015).

Kroger has now moved for summary judgment on Austin's remaining negligence claim. Doc. 96, Def.'s Mot. for Summ. J. Austin responded, and Kroger filed a reply. Doc. 100, Br. in Supp. of Pl.'s Resp. [hereinafter "Pl.'s Resp. Br."]; Doc. 103, Def.'s Reply Br. Austin then moved for leave to file a surreply, arguing that Kroger had raised a new argument in its Reply. Doc. 104, Mot. for Leave to File Surreply. The Court denied that motion, finding that a surreply was unwarranted. Doc. 110, Mem. Op. & Order. Austin now moves the Court to reconsider that decision. Doc. 113, Mot. to Reconsider. As the Court has received Kroger's Response and Austin's Reply to the Motion to Reconsider, both motions are ready for review. Doc. 114, Def.'s Resp.; Doc. 115, Pl.'s Reply Br.

II. LEGAL STANDARD

A. Reconsideration

The Federal Rules of Civil Procedure do not specifically provide for motions for reconsideration. Shepherd v. Int'l Paper Co. , 372 F.3d 326, 328 n. 1 (5th Cir.2004). Consequently, courts generally treat such a motion as one to alter or amend a judgment under Rule 59(e), or for relief from a final judgment, order, or proceeding under Rule 60(b). Id. "Rule 59(e) governs when the reconsideration motion is filed within [twenty-eight] days of the challenged order." Blueskygreenland Envtl. Solutions, LLC v. Rentar Envtl. Solutions, Inc. , No. 4:11–CV–1745, 2012 WL 423399, at *2 (S.D.Tex. Feb. 8, 2012). Because Austin filed his Motion to Reconsider within twenty-eight days of the Court's Order denying him leave to file a surreply, Rule 59(e) controls.

A Rule 59(e) motion to alter or amend a judgment challenges the "correctness of a judgment." In re Transtexas Gas Corp. , 303 F.3d 571, 581 (5th Cir.2002). "Reconsideration of a judgment after its entry is an extraordinary remedy," however, and is only available "to correct manifest errors of law or fact or to present newly discovered evidence." Templet v. HydroChem Inc. , 367 F.3d 473, 479 (5th Cir. 2004) (quoting Waltman v. Int'l Paper Co. , 875 F.2d 468, 473 (5th Cir.1989) ). As a result, a court will not grant a Rule 59(e) motion that merely "rehash[es] evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment." Id. at 478–79. Likewise, a party may not "relitigate issues that were resolved to the [party's] dissatisfaction." McKinney v. Thaler , No. 3:12–CV–1105, 2013 WL 3243567, at *1 (N.D.Tex. June 27, 2013) (citing Forsythe v. Saudi Arabian Airlines Corp. , 885 F.2d 285, 289 (5th Cir.1989) ). Ultimately, a court considering a motion to alter or amend a judgment must "strike the proper balance between the need for finality and the need to render just decisions on the basis of all the facts," keeping in mind that "Rule 59(e) favor[s] the denial of motions to alter or amend a judgment." Id. (internal quotation marks omitted) (quoting Hale v. Townley , 45 F.3d 914, 921 (5th Cir.1995) ; S. Constructors Grp., Inc. v. Dynalectric Co. , 2 F.3d 606, 611 (5th Cir.1993) ).

B. Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "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. 56(a). The substantive law governing a matter determines which facts are material to a case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The summary judgment movant bears the burden of proving that no genuine issue of material fact exists. Latimer v. Smithkline & French Labs . , 919 F.2d 301, 303 (5th Cir.1990). Usually, this requires the movant to identify "those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). But if the non-movant ultimately bears the burden of proof at trial, the summary judgment movant may satisfy its burden by pointing to the mere absence of evidence supporting the non-movant's case. Id. at 322–23, 106 S.Ct. 2548.

Once the summary judgment movant has met this burden, it falls to the non-movant to "go beyond the pleadings and designate specific facts" showing that a genuine issue exists. Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir.1994) (per curiam) (citing Celotex , 477 U.S. at 325, 106 S.Ct. 2548 ). "This burden is not satisfied with ‘some metaphysical doubt as to material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence." Id. (internal citations omitted). Instead, the non-moving party must "come forward with specific facts showing that there is a genuine issue for trial ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted). In determining whether a genuine issue exists for trial, the court will view all of the evidence in the light most favorable to the non-movant. Munoz v. Orr , 200 F.3d 291, 302 (5th Cir.2000). But the court need not "sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir.1998) (quoting Skotak v. Tenneco Resins, Inc. , 953 F.2d 909, 915–16 & n. 7 (5th Cir.1992) ). If the non-movant is unable to make the required showing, the court must grant summary judgment. Little , 37 F.3d at 1076.

III. ANALYSIS

There are two motions before the Court—Austin's Motion to Reconsider and Kroger's Motion for Summary Judgment. Because Austin's Motion concerns his ability to file...