Reyes v. BJ's Rests., Inc.

Decision Date15 August 2018
Docket NumberCASE NO. 17-62583-CIV-COHN/SELTZER
PartiesROLANDO REYES and CARIDAD REYES, Plaintiffs, v. BJ'S RESTAURANTS, INC., Defendant.
CourtU.S. District Court — Southern District of Florida
OMNIBUS ORDER

THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment [DE 50], Defendant's Motion to Strike Affidavit of David M. Gill and David M. Gill as a Witness [DE 68] ("Motion to Strike"), and Plaintiffs' Rule 56(d) Motion to Defer Considering or Deny Defendant's Motion for Summary Judgment [DE 71] ("Rule 56(d) Motion") (collectively, "Motions"). The Court has considered the Motions, all relevant briefing, and the record in this case, and is otherwise advised in the premises.

I. Background
A. Factual Background

On October 11, 2015, Plaintiffs Rolando and Caridad Reyes were patronizing a BJ's Restaurant in Pembroke Pines, Florida. DE 49 ¶ 2; DE 1-1 at 1-2 ¶¶ 4, 7-8.1 Therestaurant is operated by Defendant BJ's Restaurants, Inc. Id. at 1 ¶ 4. At the time, Rolando was 84 years old; Caridad was 77 years old. DE 49-1 at 5:5-6; DE 49-2 at 6:21-22. Following dinner, Rolando left table and walked around the back of the restaurant toward the restroom. DE 49-1 at 34:1-18. As he left the restroom and headed back to the table, Rolando slipped and fell prior to reaching some steps at the front of the restaurant. Id. at 34:22-35:5, 37:13-14, 59:23-25. Rolando does not know whether the steps or anything on the floor caused him to slip. Id. at 36:2-15, 37:15-16, 38:9-14. Nor did Rolando (or any family member present with him that evening) inspect the floor or steps to find out what might have caused him to slip. Id. at 42:10-13, 53:12-17, 60:7-12; DE 49-2 at 38:14-18, 40:10-17.

Eight minutes and ten seconds after Rolando slipped and fell, Caridad slipped and fell prior to reaching same steps. Id. at 43:21-25. Like Rolando, Caridad slipped while returning from the restroom at the back of the restaurant. DE 49-2 at 43:21-44:12. And like Rolando, Caridad does not know what caused her to fall, and made no effort after the fact to determine what caused her to fall. Id. at 44:13-19, 46:8-16, 47:15-18, 49:14-50:10.

Closed-circuit television video ("CCTV") footage from the restaurant shows that, in the five minutes before Rolando's fall, at least 16 people traversed the steps, allwithout incident. CCTV Footage at 11:08-16:08.2 And in the time between Rolando and Caridad's falls, at least 28 people utilized the steps, all without incident. Id. at 16:08-24:28. The CCTV footage also shows that neither Caridad nor Rolando used either of the two handrails located at the sides of the steps. Id. at 16:08, 24:28.

After the incidents, the restaurant's senior managers on duty that day, Alexander Torrens and Gerardo Chavez, inspected the steps and the area of the floor in and around the steps, and did not see anything (slippery or otherwise). DE 49-3 at 106:23-107:17, 115:1-16; DE 49-4 at 56:23-58:17, 65:10-66:1. They also spoke to the restaurant's staff working that day, as well as Plaintiffs' family members, none of whom said that they saw anything on the floor that could have caused Plaintiffs to slip and fall. DE 49-3 at 108:4-7, 108:20-25, 110:13-111:14, 112:5-12, 115:24-116:5; DE 49-4 at 58:18-22, 60:14-61:18.

Both Rolando and Caridad testified during their depositions that they have no evidence of Defendant's knowledge of any alleged slippery condition on the floor and no evidence that the floor was inherently slippery. DE 49-1 at 36:12-15, 54:1-13; DE 49-2 at 50:12-14, 89:5-90:5. Finally, and as already noted, Rolando and Caridad also testified that they do not know what caused them to fall.

B. Procedural Background

On January 24, 2017, Plaintiffs filed this suit against Defendant in the Seventeenth Judicial Circuit Court of Florida, Broward County. See DE 1-1 at 18-25. An amended complaint was filed on June 28, 2017. See id. at 1-10. The amended complaint states two counts of negligence—the first with respect to Rolando's slip and fall; the second with respect to Caridad's. Id. at 3-9 ¶¶ 15-40. Both the originalcomplaint and the amended complaint made a generic plea for damages exceeding $15,000, exclusive of interest and costs. Id. at 1 ¶ 1, 18 ¶ 1. On December 1, 2017, in response to Defendant's request for admissions, Plaintiffs admitted that the total amount of damages they seek exceeds $75,000. See DE 1-2 at 14-19.

Following Plaintiffs' admission, on December 29, 2017, Defendant removed the case to this Court, citing diversity of citizenship. DE 1; see 28 U.S.C. §§ 1332(a), 1441(b). There is no dispute that diversity jurisdiction exists. The parties are completely diverse—Plaintiffs are Florida citizens who reside in Miami-Dade County, Florida [DE 1-1 at 1 ¶¶ 2-3]; Defendant is a California corporation with its principal place of business in Huntington Beach, California [DE 1-3; see 28 U.S.C. § 1332(c)]. And, as noted, Plaintiffs have admitted that the statutory amount in controversy has been met.3

On February 5, 2018, more than five weeks after the case was removed, Plaintiffs' counsel moved to withdraw. DE 11. The Court permitted counsel to do so ten days later, stayed the case until March 19, 2018, and extended certain pre-trial deadlines. DE 17.

On March 26, 2018, Plaintiffs' current counsel entered her appearance and filed a motion for leave to file a second amended complaint in order to add an additional,non-diverse defendant and remand the case to state court. DE 20. The Court denied Plaintiffs' motion without prejudice due to their failure to attach a proposed amended complaint or state with particularity the grounds upon which they sought leave to amend. DE 28 at 3-4. On April 23, 2018, Plaintiffs filed a renewed motion for leave to amend and remand, this time with a proposed second amended complaint attached. DE 37. The Court denied that motion on June 7, 2018. DE 43.

Defendant now moves for summary judgment and to strike one of Plaintiffs' proposed expert witnesses. Plaintiffs, for their part, ask the Court to defer ruling on or to deny the Motion for Summary Judgment so they may conduct additional discovery.

II. Rule 56(d) Motion

Federal Rule of Civil Procedure 56(d) provides: "If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a motion for summary judgment], the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Contending that they have not had sufficient time to conduct discovery, Plaintiffs seek relief from the Court under Rule 56(d).

A. Legal Standard

Rule 56(d) reflects the principle that "the party opposing a motion for summary judgment should be permitted an adequate opportunity to complete discovery prior to consideration of the motion." Jones v. City of Columbus, 120 F.3d 248, 253 (11th Cir. 1997) (per curiam). As the Eleventh Circuit explained in Snook v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865 (11th Cir. 1988):

The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. If the documents or other discovery sought would be relevant to the issues presented by the motion for summary judgment, the opposing party should be allowed the opportunity to utilize the discovery process to gain access to the requested materials. Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.

Id. at 870 (citations omitted).

"Courts cannot read minds," however, "so the nonmoving party must give more than vague assertions that additional discovery will produce needed, but unspecified, facts." Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1063 (11th Cir. 2015) (internal quotation marks omitted). The party invoking Rule 56(d) "must specifically demonstrate how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989) (per curiam) (internal quotation marks omitted). Thus, "the party opposing the motion for summary judgment bears the burden of calling to the district court's attention any outstanding discovery." Urquilla-Diaz, 780 F.3d at 1063 (quoting Snook, 859 F.2d at 871).

B. Discussion

According to Plaintiffs, because their current counsel did not begin representing them until March 26, 2018, they only had 80 days to conduct discovery. DE 71 at 2, 14-15; see DE 9 at 1 (setting fact discovery deadline for May 31, 2018 and expert discovery deadline for June 14, 2018); DE 40 (extending fact discovery to June 14, 2018). And that amount of time, Plaintiffs say, was not enough for them to adequately respond to Defendant's Motion for Summary Judgment.

The Court disagrees. As noted in the Court's discussion of this case's procedural history, Plaintiffs first initiated this suit in January 2017. The parties engaged in discovery in state court throughout much of 2017, until Defendant removed the case to this Court on December 29, 2017. And once the case was removed, the Court entered a Scheduling Order on January 30, 2018 allotting the parties 135 days for discovery. DE 9.4 That Plaintiffs' present counsel did not enter the case until midway through the discovery period in this Court does not mean that Plaintiffs have not been given sufficient time to conduct discovery—both in this Court and in state court. "There is no principle that each new attorney for a litigant must have an independent opportunity to conduct discovery. Shortcomings in counsel's work come to rest with the party represented. They do not justify extending the litigation, at...

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