Leys v. Lowe's Home Centers, Inc.

Decision Date07 October 2009
Docket NumberCase No. 1:08-cv-1084.
Citation664 F.Supp.2d 828
PartiesMark and Naesha LEYS, Plaintiffs, v. LOWE'S HOME CENTERS, INC., Defendant.
CourtU.S. District Court — Western District of Michigan

Michael S. Dantuma, Aaron D. Wiseley, Richard E. Holmes, Jr., Holmes & Wiseley PC, Grand Rapids, MI, for Plaintiffs.

Steven F. Stapleton, Law Weathers & Richardson PC, Grand Rapids, MI, for Defendant.

Granting the Defendant's Motion for Summary Judgment; Terminating and Closing the Case

OPINION AND ORDER

PAUL L. MALONEY, Chief Judge.

This is a premises-liability action under Michigan law.1 Mark Leys and his wife Naesha Leys (together, "Leys") sued Lowe's Home Centers, Inc. ("Lowe's") in Michigan state court, and Lowe's filed a notice invoking this court's diversity removal jurisdiction. Neither the Leys' complaint nor Lowe's removal papers alleged facts sufficient to establish diversity jurisdiction. Accordingly, this court ordered Lowe's to show cause, no later than February 9, 2009, why this case should not be remanded to state court for lack of removal jurisdiction. See Leys v. Lowe's Home Ctrs., Inc., 601 F.Supp.2d 908, 918-19 (W.D.Mich.2009) (Maloney, C.J.). On February 6, 2009, Lowe's timely filed a response to the order, with attachments supporting each assertion regarding the citizenship of the parties and the amount in controversy. Three weeks passed after the Leys were electronically served with Lowe's response, and they did not file a reply. Accordingly, the court proceeded without waiting further for a reply from the Leys, and found that Lowe's had established diversity jurisdiction. See Leys v. Lowe's Home Ctrs., Inc., 2009 WL 514291 (W.D.Mich. Mar. 2, 2009) (Maloney, C.J.).

Lowe's filed a motion for summary judgment on August 27, 2009, the plaintiffs filed an opposition brief on September 27, 2009, and Lowe's did not file a reply brief. For the reasons that follow, the court will grant Lowe's motion.

LEGAL STANDARD: SUMMARY JUDGMENT

"Summary judgment is proper if the `pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law.'" Portinga v. Taylor, 2009 WL 910800, *5 (W.D.Mich. Apr. 2, 2009) (Maloney, C.J.) (quoting Patterson v. Hudson Area Schools, 551 F.3d 438, 444 (6th Cir. 2009) (quoting FED. R. CIV. P. 56(c))); see also Schreiber v. Philips Display Components Co., 580 F.3d 355, 363-64 (6th Cir. 2009).2 Accord Alderman v. JC Dev. Communities, LLC, 2009 WL 2607084, * 1 (Mich.App. Aug. 25, 2009) (p.c.) (P.J. Owens, Servitto, Gleicher) ("Summary disposition is proper when, upon examining the pleadings, admissions and other evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.") (citing Brown v. Brown, 478 Mich. 545, 739 N.W.2d 313, 316 (2007)).

The movant has the burden of proving the absence of genuine issues of material fact and its entitlement to judgment as a matter of law. ARS, 602 F.Supp.2d at 845 (citing Conley, 266 Fed.Appx. at 404 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986))). However, if the moving party seeks summary judgment on an issue for which it does not bear the burden of proof at trial—e.g., if the movant is defending against a claim—"it may meet its burden merely by showing `that there is an absence of evidence to support the moving party's case.'" Moldowan v. City of Warren, 578 F.3d 351, 374-75 (6th Cir.2009) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). See also Wilson v. Continental Dev. Co., 112 F.Supp.2d 648, 654 (W.D.Mich.1999) (Bell, J.) (movant "need not support its motion with affidavits or other materials `negating' the opponent's claim"; rather, its initial burden is only to "point out to the district court that there is an absence of evidence to support the nonmoving party's case ....") (citing Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993)), af'd o.b., 234 F.3d 1271, 2000 WL 1679477 (6th Cir.2000). Accord Claspell v. Denso Mfg. Michigan, Inc., 2001 WL 1545864, *2 (Mich.App.Dec. 4, 2001) (p.c.) (P.J. O'Connell, Sawyer, Smolenski) ("That standard is exactly the same as the standard for summary disposition used under Michigan law ....").

Once the movant has met its burden, the non-movant must present "`significant probative evidence'" to demonstrate that there is more than "`some metaphysical doubt as to the material facts.'" ARS, 602 F.Supp.2d at 845 (citing Conley, 266 Fed. Appx. at 404 (quoting Moore, 8 F.3d at 339-40)). The non-movant may not rest on the mere allegations of his pleadings. Griffin v. Reznick, 609 F.Supp.2d 695, 698 (W.D.Mich.2008) (Maloney, C.J.) (citing, inter alia, FED. R. CIV. P. 56(e) and Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995)); see also Transition Healthcare Assocs., Inc. v. Tri-State Health Investors, LLC, 306 Fed.Appx. 273, 278 (6th Cir. 2009); accord Kachudas v. Invaders Self Auto Wash, Inc., 2009 WL 2767303, *2 (Mich.App. Sept. 1, 2009) (p.c.) (P.J. Wilder, Cavanagh, Murray) ("When the burden of proof at trial would rest on the nonmoving party, the nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial.") (citing The Healing Place at No. Oakland Medical Ctr. v. Allstate Ins. Co., 277 Mich.App. 51, 744 N.W.2d 174, 177 (2007) (citing, inter alia, Quinto v. Cross & Peters Co., 451 Mich. 358, 547 N.W.2d 314, 317 (1996))).

If the movant puts forward evidence— such as affidavits, purported business records, purported government records, etc.—the other party cannot withstand summary judgment by simply sitting mute and failing to challenge the authenticity, admissibility, or veracity of those documents. See, e.g., Donoho v. Smith Cty. Bd. of Ed., 21 Fed.Appx. 293, 298 (6th Cir.2001) (Boggs, J.) (affirming summary judgment for defendant employer, Circuit noted that plaintiff's "affidavit does nothing to challenge the evidence put forward by the defendants that the last IEP meeting ... also included provision to her of the apparently usual verbal and written notices of her rights.").3

Moreover, the mere existence of an alleged factual dispute between the parties will not defeat an otherwise properly supported summary judgment motion; there be some genuine issue of material fact. ARS, 602 F.Supp.2d at 845 (citing, inter alia, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). And the non-movant "cannot defeat a properly supported motion for summary judgment motion by `simply arguing that it relies solely or in part upon credibility determinations.'" Heggie v. Kuzma, 2009 WL 594908, *10 (W.D.Mich. Mar. 6, 2009) (Maloney, C.J.) (quoting Fogerty v. MGM Group Holdings, Inc., 379 F.3d 348, 353 (6th Cir.2004) (non-movant may not "have a trial on the hope that a jury may disbelieve factually uncontested proof")).

The court must accept the non-movant's factual allegations, ACLU v. NSA, 493 F.3d 644, 691 (6th Cir.2007) (concurrence) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)), cert. denied, ___ U.S. ___, 128 S.Ct. 1334, 170 L.Ed.2d 59 (2008),4 and view the evidence in the light most favorable to the non-movant, giving it the benefit of all reasonable inferences. Fox v. Eagle Dist. Co., Inc., 510 F.3d 587, 592 (6th Cir.2007) (Griffin, J.); see also Patterson, 551 F.3d at 445.5

But the court considers its evidence only to the extent that it would be admissible at trial. ARS, 602 F.Supp.2d at 845 (citing Healing Place, 744 N.W.2d at 177 (citing MICH. CT. R. 2.116(G)(6) and Veenstra v. Washtenaw Country Club, 466 Mich. 155, 645 N.W.2d 643, 648 (2002))).

Ultimately, entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element to that party's case, and on which that party w[ould] bear the burden of proof at trial." Davison v. Cole Sewell Corp., 231 Fed.Appx. 444, 447 (6th Cir.2007) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548).6 "As Chief Judge Bell has characterized the post-trilogy summary-judgment standard, `[w]hile preserving the constitutional right of civil litigants to a trial on meritorious claims, the courts are now vigilant to weed out fanciful, malicious, and unsupported claims before trial.'" Ellis v. Kaye-Kibbey, 581 F.Supp.2d 861, 874 (W.D.Mich.2008) (Maloney, C.J.) (quoting Wilson, 112 F.Supp.2d at 654).

LEGAL STANDARD: APPLICATION OF STATE LAW

When sitting in diversity jurisdiction, this court must apply the choice-of-law rules and, if applicable, the substantive law of the forum State, Michigan. Amerisure Mut. Ins. Co. v. Carey Transp., Inc., 578 F.Supp.2d 888, 897 (W.D.Mich.2008) (Maloney, C.J.) (citing CenTra, Inc. v. Estrin, 538 F.3d 402, 409-10 (6th Cir.2008) (citing Himmel v. Ford Motor Co., 342 F.3d 593, 598 (6th Cir.2003))); see also Savedoff v. Access Group, Inc., 524 F.3d 754, 762 (6th Cir.2008) ("We generally apply the substantive law of the forum state to actions brought pursuant to our diversity jurisdiction.") (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).

As the parties agree that this dispute is governed by Michigan substantive law, the court applies Michigan law. See, e.g., Savedoff, 524 F.3d at 762 ("As the parties do not dispute that the student loan contracts at issue are governed by Ohio law, we apply Ohio law to the parties' contractual dispute."); Lakeland Reg. Health Sys. v. Walgreens Health Initiatives, Inc., 604 F.Supp.2d 983, 986 (W.D.Mich.2009) (Maloney, C.J.) (although contract had a clause calling for the application of Illinois substantive law, "WHI contends that Michigan law governs the tort issues in this case ......

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