Leeuw v. Kroger Tex. L.P.
| Decision Date | 21 September 2021 |
| Docket Number | Civil Action 3:19-CV-1771-L |
| Parties | SHERI LEEUW, Plaintiff, v. KROGER TEXAS, L.P. d/b/a KROGER, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Before the court is Defendant's Motion for Summary Judgment (Doc. 26), filed October 14, 2020; Plaintiff's Motion to Dismiss Two of Her Claims (“Motion to Dismiss”) (Doc. 31), filed November 4, 2020; Defendant's Objections to Plaintiff's Sham Affidavit (Doc. 42), filed March 3 2021; and Plaintiff's Motion to Strike Defendant's Amended Reply to its Motion for Summary Judgment and Objections to Plaintiff's Sham Affidavit (“Motion to Strike”) (Doc. 43), filed March 5, 2021. After considering the parties' motions, briefs, evidence record, and applicable law, the court grants in part and denies as moot in part Defendant's Motion for Summary Judgment (Doc. 26); overrules Defendant's Objection to Plaintiff's Affidavit (Doc. 42); and denies Plaintiff's Motion to Strike (Doc. 43). Defendant's summary judgment motion (Doc. 26) is granted as to Plaintiff's premises liability and gross negligence claims and denied as moot as to Plaintiff's negligence claim. Further, Plaintiff's Motion to Dismiss (Doc. 31) is granted with respect to her negligence claim and denied with respect to her gross negligence claim.
Sheri Leeuw (“Plaintiff” or “Ms. Leeuw”) originally brought this personal injury action against Kroger Texas, L.P. d/b/a Kroger (“Defendant” or “Kroger”) in the 439th Judicial District Court, Rockwall County, Texas, on July 8, 2019. On July 25, 2019, the action was removed to federal court by Kroger based on diversity jurisdiction. In her Original Petition, Ms. Leeuw asserts causes of action for negligence, gross negligence, and premises liability, and she seeks actual damages in the form of past and future medical expenses, pain and suffering, mental anguish, and disfigurement. She also seeks lost wages, exemplary damages, prejudgment and postjudgment interest, and costs of court. Her claims arise from an injury she sustained while shopping at Kroger in Rockwall, Texas, on July 15, 2017, as a result of slipping on a stream of clear liquid on the floor near the fresh seafood and meat department of the store. The parties agree that the clear liquid was water. To keep from falling, Ms. Leeuw grabbed the arm of another customer who was standing next to her. It is undisputed that no one actually saw the water on the floor or had actual notice of the water before Ms. Leeuw slipped. Ms. Leeuw, nevertheless, contends that at least one store employee, and possibly two, who were working nearby, had constructive notice and should have been aware of the water on the floor before she slipped. Kroger disagrees and maintains that Ms. Leeuw's premises liability claim fails for lack of actual or constructive notice.
On October 14, 2020, Kroger moved for summary judgment on all of Plaintiff's claims. On November 4, 2020, Plaintiff filed her response to the summary judgment motion. On the same date, she also moved to dismiss her negligence claim with prejudice and her gross negligence claim without prejudice pending further discovery. Kroger opposed Plaintiff's request to dismiss her gross negligence claim without prejudice because it had already moved for summary judgment on all of her claims. Kroger also objected to and moved to strike the affidavit submitted by Plaintiff in support of her response to its summary judgment motion. Kroger contends that the affidavit is a “sham” affidavit that contradicts Plaintiff's prior deposition testimony in two material respects. In response to Kroger's motion to strike and objections, Plaintiff disagreed that her affidavit directly contradicted her deposition testimony and submitted a second affidavit in an attempt to clarify statements in her earlier affidavit. Kroger filed its reply in support of the objections and motion to strike on November 18, 2020.
After briefing on Defendant's summary judgment motion was complete, the court directed Plaintiff to file an amended summary judgment response and appendix that complied with the district's Local Civil Rules. Plaintiff filed her amended summary judgment response and appendix on March 3, 2021, to which Kroger filed an amended summary judgment reply and again objected to Plaintiff's affidavit on March 3, 2021, for essentially the same reasons. Plaintiff did not respond to Kroger's amended objections. On March 5, 2021, Plaintiff, instead, moved to strike Kroger's amended reply and objections. Briefing on Plaintiff's motion to strike was complete on March 11, 2021.
Resolution of Plaintiff's Motion to Dismiss, Plaintiff's Motion to Strike, and Defendant's Motion to Strike or Objections to Plaintiff's summary judgment evidence will affect the court's ruling as to Defendant's Motion for Summary Judgment. Accordingly, the court addresses these motions before ruling on the summary judgment motion.
Plaintiff moves, pursuant to Federal Rule of Civil Procedure 41(a)(2), to voluntarily dismiss her negligence claim (with prejudice) and gross negligence claim (without prejudice) after Kroger moved for summary judgment on all of her claims. Kroger is not opposed to Plaintiff dismissing her negligence claim with prejudice. Plaintiff's Motion to Dismiss her negligence claim with prejudice is, therefore, granted, and this claim is dismissed with prejudice. Kroger, however, contends that Plaintiff should not be allowed to dismiss her gross negligence claim without prejudice at this late stage of the case. Kroger contends that Plaintiff is attempting to avoid summary judgment on this claim for which she has no evidence, and she failed to address any of its summary judgment arguments regarding this claim.
Plaintiff disagrees and argues that, although she delayed in seeking to voluntarily dismiss her gross negligence claim until after Defendant moved for summary judgment, this is not necessarily a per se bar to the court allowing her to dismiss the claim without prejudice under Rule 41(a)(2). Plaintiff contends that, generally, voluntary dismissal is appropriate and should be allowed even after the opposing party has moved for summary judgment, as long there is no evidence of bad faith and the defendant will not suffer clear legal prejudice as opposed to the mere inconvenience of having to defend against the dismissed claim in a later lawsuit. Pl.'s Reply 1-2 (citing Pontenberg v. Boston Scientific Corp., 252 F.3d 1253, 1255 (11th Cir. 2001) ().
Federal Rule of Civil Procedure Rule 41(a) permits a plaintiff to voluntarily dismiss an action without a court order by: “(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared.” Fed.R.Civ.P. 41(a)(1)(A). “Unless the notice or stipulation states otherwise, dismissal under is without prejudice.” Fed.R.Civ.P. 41(a)(1)(B).
Upon a plaintiff's request, the court can also dismiss an action by court order on terms that it considers proper. Fed.R.Civ.P. 41(a)(2). Unless otherwise specified, dismissal under this paragraph is without prejudice. Id. Ordinarily, a motion for voluntary dismissal “should be freely granted unless the non-moving party will suffer some plain legal prejudice other than the mere prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002) (citation omitted). “Whe[n] the plaintiff does not seek dismissal until a late stage and the defendants have exerted significant time and effort, the district court may, in its discretion, refuse to grant a voluntary dismissal.” Id. at n.3 (quoting Hartford Acc. & Indem. Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990)). Legal prejudice may also exist if the nonmovant could lose a forum non conveniens defense. Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176, 179 (5th Cir. 1990). Finally, legal prejudice may exist if “a plaintiff fails to seek dismissal until a late stage of trial, after the defendant has exerted significant time and effort.” Davis v. Huskipower Outdoor Equip. Co., 936 F.2d 193, 199 (5th Cir. 1991). Whether legal prejudice exists under these circumstances is a determination to be made by the court using its sound discretion. If the court determines that legal prejudice exists, it may “refuse to grant a voluntary dismissal.” Id. (citations omitted). “[T]he mere prospect of a second lawsuit is not enough prejudice to a defendant to warrant denial of a motion to dismiss without prejudice.” United States ex rel. Doe v. Dow Chemical Co., 343 F.3d 325, 330 (5th Cir. 2003). Alternatively, the court can “craft conditions that will cure the prejudice.” Elbaor, 279 F.3d at 318.
Plaintiff explains that she is seeking to voluntarily dismiss without prejudice her gross negligence claim under Rule 41(a)(2) “because evidence may come to light during discovery that would support such a claim.” Pl.'s Mot. to Dismiss 1. By its own terms, however, Rule 41 contemplates “Dismissal of Actions, ” not dismissal of only particular claims. See Swope v. Columbian Chems Co., 281 F.3d 185, 192 & n.15 (5th Cir. 2002) (recognizing that “Rule 41(a) contemplates dismissal of an ‘action' rather than a ‘claim' or ‘claims, '” and noting its prior refusal in Exxon Corp. v. Maryland Casualty Co., 599 F.2d 659, 62-63 (5th Cir. 1979), “to permit a Rule 41(a)...
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