Cole v. Food Lion, L.L.C.

• Decision Date: 25 May 2005
• Docket Number: No. CIV.A. 204CV653.,CIV.A. 204CV653.
• Citation: 370 F.Supp.2d 434
• Parties: Rita COLE, Plaintiff, v. FOOD LION, L.L.C., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

370 F.Supp.2d 434

Rita COLE, Plaintiff, v. FOOD LION, L.L.C., Defendant.

No. CIV.A. 204CV653.

United States District Court, E.D. Virginia, Norfolk Division.

May 25, 2005.

Edward F. Halloran, Esquire, Virginia Beach, VA, for Plaintiff.

Robert W. McFarland, Esquire, Michael W. Lewis, Esquire, McGuire Woods, Norfolk, VA, for Defendant.

ORDER

MORGAN, Senior District Judge.

This matter came before the Court on the motions of Food Lion, L.L.C. [hereinafter "Defendant"] for Summary Judgment (Doc. 7) and for Leave to File a Late Rebuttal Brief (Doc. 10). On April 8, 2005, the Court heard the motions, GRANTED Defendant's Motion for Leave to File a Late Rebuttal Brief, and took under advisement the Motion for Summary Judgment. After considering the briefs filed by both parties and the arguments made at the hearing, the Court GRANTS Defendant's Motion for Summary Judgment. This order further explains the Court's rulings.

I. PROCEDURAL POSTURE:

On or about October 13, 2004, Rita Cole [hereinafter Plaintiff] filed a Motion for Judgment in Circuit Court for the City of Norfolk. (Doc. 1 at Ex. 2.) On November 2, 2004, Defendant filed a Notice for Removal (Doc. 1) and Notice of Removal (Doc. 2). Defendant filed the instant Motion for Summary Judgment on March 16, 2005. (Doc. 7.) Plaintiff replied with a Brief in Opposition to Defendant's Motion for Summary Judgment, filed March 28, 2005. (Doc. 9.) Although Plaintiff accomplished service of its response by mail, Defendant's counsel alleges that he did not receive the response until April 4, 2005. Three days after receipt, Defendant's counsel filed a Motion for Leave to File a Late Pleading on April 7, 2005. (Doc. 10.) The rebuttal brief was tendered concurrently.

II. JURISDICTION:

A defendant may remove to a United States district court any civil action over which a district court would have had original jurisdiction. 28 U.S.C. § 1441(a). District courts have original jurisdiction over civil actions between citizens from different states in which the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). Plaintiff is a citizen and domiciliary of Virginia. (Doc. 1.) For purposes of removal analysis, a corporation is a citizen of any state in which it is incorporated or it has a principal place of business. 28 U.S.C. § 1332(c)(1). Defendant is a North Carolina corporation with its principal place of business in North Carolina. (Doc. 1.) Defendant is not incorporated in Virginia. Id. A defendant desiring to remove a civil action must file a notice of removal in the relevant district court within thirty days of the defendant's receipt of the initial pleading. 28 U.S.C. § 1446. Defendant filed its Notice of Removal twenty days after it asserts it was served with a copy of the Motion for Judgment. (Doc. 1.) Virginia substantive law applies to this case because a federal court exercising diversity jurisdiction must apply the law of the state in which it sits. See Erie R.R. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III. PRELIMINARY MOTIONS/ISSUES:

A. Motion for Leave to File Late Pleading:

"Unless otherwise directed by the Court ... the moving party may file a rebuttal brief within three (3) days after the service of the opposing party's reply brief." E.D. VA. LOCAL R. CIV. P. 7(F). When service is made by mail, FED. R. CIV. P. 6(e) adds three days, so a rebuttal brief must be filed within six (6) days after service. In computing a period of time allowed by the local rules of a district court, "the day of the act, event, or default from which the designated period of time begins to run shall not be included." FED. R. CIV. P. 6(a). Unless the last day is a weekend or legal holiday, it shall be counted. Id.

In this case, Plaintiff's Reply Brief was mailed March 28, 2005. The last day allowed Defendant was March 31, 2005. Therefore, Defendant's Rebuttal Brief was due on April 3, 2005. Defendant's Rebuttal Brief was received April 7, 2005. A court may, for good cause shown, enlarge the period of time in which an action is to occur. Id. at (b). Requests for extensions or enlargements of time must be in writing and, if made after the period of time in which an act was to occur, must be accompanied by a brief. Local Rule 7(E) and (H). Such requests are looked upon with disfavor and may only be granted if the failure to act was the result of excusable neglect. Rule 6(b); Local Rule 7(H). Defendant made an untimely request on April 7, 2005, and did not include a brief in its support. At the hearing, however, Defendant's counsel proffered that he did not receive Plaintiff's Reply until April 4, 2005. Finding the proffer of Defendant's counsel to be reasonable and further finding the motion not opposed by Plaintiff, the Court GRANTED Defendant's Motion for Leave and marked the previously tendered brief "Filed."

B. Failure to Comply with Local Rule 56(B):

Local Rule 56(B) provides in part, "[i]n determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its listing of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." In its Rebuttal, Defendant urges the court to accept its undisputed facts as facts because Plaintiff did not specifically caption the fact section of her Reply as "Material Facts in Dispute." Plaintiff does have a fact section, but it is neither appropriately titled nor specifically numbered. Observing the Plaintiff's partial compliance with the requirements of Local Rule 56(B) and in light of the Court's lenience towards Defendant's procedural request, the Court FINDS that Plaintiff did not admit the material facts identified by the Defendant as undisputed. Therefore, on the basis of all documents filed, the Court finds the following facts undisputed.

IV. UNDISPUTED FACTS:¹

1. Plaintiff arrived at Food Lion between 2:30 pm and 3:00 pm on March 5 2004. Def.'s Mot. Summ. J. at Ex. A, Deposition of Plaintiff, p. 11, lines 15, 16.

2. Plaintiff noticed a shopping cart being blown by the wind when she first arrived at the store. She presumed the wind blew it, but the cart may have been left on an angle that caused it to roll. It went by her and hit a car. Id. at pp. 16-18.

3. To enter the store, Plaintiff had to maneuver around4 — 6 carts that were loose by the front of the store. Id. at pp. 14-15.

4. Plaintiff spent approximately 32 minutes shopping inside the Food Lion store. Id. at p. 11, line 16; p. 18, line 24; and Pl.'s Mem. in Opp. Summ. J. at Aff., Ex. 1 (the receipt).

5. Upon leaving the store, Plaintiff noticed several shopping carts were not placed in the rack near the entrance of the store. Def.'s Mot. Summ. J. at Ex. A, pp. 19-20.

6. Plaintiff does not know how long these carts had been in front of the store. Id.

7. After putting her groceries in her car and replacing her cart in the rack, Plaintiff began to return to her car. Id. at pp. 19-21.

8. As Plaintiff returned to her car she dropped her receipt. While bending over to pick up her receipt Plaintiff was off balance and was bumped in the backside by a shopping cart blown by the wind. Id. at p. 21.

9. Because Plaintiff was off balance and did not see the cart coming, the minimal impact of the cart knocked Plaintiff forward and she fell on her face. Id. at p. 21.

10. Melissa Cameron ("Cameron") was entering the parking lot area as Plaintiff was bumped by the shopping cart. Cameron saw Plaintiff bend down, a motionless cart begin to move towards Plaintiff in the wind, the cart pick up a little bit of momentum, bump Plaintiff, and send her down. Def.'s Mot. Summ. J. at Ex. B, Deposition of Cameron, p. 20.

11. Cameron does not know how long the cart that hit Plaintiff had been sitting in the parking lot, outside of the cart rack. Id. at p. 24.

12. The cart that bumped Plaintiff traveled approximately four feet. Id. at p. 21, lines 4-8.

13. Cameron did not see any other carts being blown around the parking lot until a few minutes later, after Plaintiff had been taken inside and treated by the Food Lion employees. Id. at p. 26, lines 2-9, 20.

14. The National Climatic Data Center records climatological data for the Norfolk Airport, which is four miles from the store. That data indicates that "on March 4, 2004, the day before the plaintiff's injury, the entire day was windy with peak winds over a three hour period from 9:51 a.m. to 12:51 p.m. at 10 to 16 knots, gusting to 21 knots at 11:51 a.m." And, "on March 5, 2004, the date of the injury, the entire day was windy from 5:51 a.m. with peak winds over the six hour period before the plaintiff was injured from 16 knots at 9:51 a.m. to 21 knots at 3:51 p.m. Winds were gusting from 23 to 28 knots during that six hour period with peak winds from 26 to 28 knots for several hours before plaintiff's injury through the time of her injury." Pl.'s Mem. in Opp. Summ. J. at Aff., Ex. 4 (data summary).

15. The entrance of the store contains glass windows and doors through which the front store personnel and cashiers have a view into the parking lot. Id. at Aff., Ex. 2 (store pictures).

16. The store manager was deposed and his testimony was substantially as follows: he had no personal knowledge of the windy condition; the outside would have been visible to store front personnel; normal store policy requires busing of carts on an as needed basis; the bagger is responsible for busing; there was only one bagger on duty; the bagger has other responsibilities as well; and the store manager has no idea if special steps were taken to collect the carts on account of the wind. Id. at p. 4; Aff.

V. STANDARD:

Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."...