Zuppardi v. Wal-Mart Stores, Inc.

• Decision Date: 24 October 2014
• Docket Number: No. 13–3276.,13–3276.
• Citation: Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644 (7th Cir. 2014)
• Parties: Kristen ZUPPARDI, an individual, Plaintiff–Appellant, v. WAL–MART STORES, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

770 F.3d 644

Kristen ZUPPARDI, an individual, Plaintiff–Appellant

v.WAL–MART STORES, INC., Defendant–Appellee.

No. 13–3276.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 2014.

Decided Oct. 24, 2014.

Angelica W. Wawrzynek, Attorney, Tapella & Eberspacher LLC, Charleston, IL, for Plaintiff–Appellant.

James W. Ozog, Attorney, Wiedner & Mcauliffe, Chicago, IL, for Defendant–Appellee.

Before FLAUM and ROVNER, Circuit Judges, and KENDALL, District Judge.^*

Opinion

KENDALL, District Judge.

Kristen Zuppardi slipped and fell on the floor of a retail store owned and operated by Wal–Mart Stores, Inc. She subsequently brought this action against Wal–Mart. The district court granted summary judgment in favor of Wal–Mart and Zuppardi appealed. Zuppardi presents three arguments on appeal. She maintains that the district court abused its discretion in denying her motion to strike Wal–Mart's reply for submitting a declaration in bad faith and violating a Central District of Illinois local rule. But the declaration was not a bad faith filing and the district court was well within its discretion in determining that the local rule did not prevent Wal–Mart from replying in the manner it did. Zuppardi further contends that the district court erred by deeming certain of Wal–Mart's facts admitted due to Zuppardi's violation of the same local rule. We find the district court again acted within its discretion in enforcing the rule. She finally argues that the district court erred in awarding summary judgment to Wal–Mart. For the reasons set forth below, we affirm.

I. Background

Around 4 P.M. on June 15, 2010, Zuppardi, her brother, and her son visited the Wal–Mart in Champaign, Illinois. Upon entering, Zuppardi took a shopping cart from the front of the store and proceeded down an action alley, a highly trafficked main aisle of the store, toward the back of the store to buy milk. She was walking at a normal speed and did not see any other customers or Wal–Mart employees as she traveled down the aisle. As Zuppardi was walking, she slipped and fell in a puddle of water on the concrete floor of the store. She thought the puddle was composed of water because it was clear and odorless. Zuppardi testified that the puddle was two feet in diameter and that “it was really blended in with the floor.” She did not see the puddle before falling and does not know how the water accumulated. There were no warning signs or caution cones around the puddle. Nor were there any track marks, footprints, or trails leading to or from the puddle. Zuppardi's fall occurred near a set of doors in the back of the store frequently used by employees because they lead to the store's overstock merchandise, time clock, break room, and management offices. The fall did not take place near any store displays.

There were no other customers or Wal–Mart employees in the immediate area when Zuppardi fell. As a result, Zuppardi had to look for an employee to assist her in the aftermath. She found an employee stocking shelves in the grocery section of the store. It is unclear what products were being stocked, but Zuppardi mentioned it may have been cookies, hot dogs, pop (soda products), or water. Water bottles were located six aisles away from the location of the fall while cookies, hot dogs, and soda products were placed in different aisles; however, Wal–Mart employees used the action alley regularly in order to restock items found throughout the grocery section.

An assistant manager of the store at the time, George Steward, did not witness the fall but stated that because it occurred in close proximity to the frequently-used back doors, Wal–Mart personnel would have promptly dealt with the puddle even if Zuppardi had not fallen. According to Steward, Wal–Mart employees were required to follow Wal–Mart's policies and procedures, including the conducting of regular safety sweeps of the store that focus on high traffic areas, such as any action alleys. The employees were tasked with monitoring the action alleys and scanning for unsafe conditions while performing their other job duties. Upon encountering a spill, employees were required to stay with it until removed. All employees carried a “towel in pocket” to clean up any discovered spill, something Wal–Mart called the “clean-as-you-go” method. Steward further testified that although he had no personal recollection of any investigation conducted regarding Zuppardi's fall, including any incident file that may have been created, it was Wal–Mart policy to pursue such a course of action and he had no reason to doubt that the protocol was followed. However, Wal–Mart was unable to locate Zuppardi's customer incident file and was accordingly incapable of producing any documents related to the investigation other than five photographs taken the day of the incident depicting the location of the fall and a copy of the claim report submitted to CMI, Wal–Mart's casualty claims administrator. Further, no video footage was available because Wal–Mart did not have any of its surveillance cameras focused on the pertinent area on June 15, 2010.

Zuppardi filed a complaint against Wal–Mart in an Illinois court on June 8, 2012, and Wal–Mart removed the case to federal court on July 19, 2012. The district court granted Wal–Mart's motion for summary judgment on September 17, 2013, finding that Wal–Mart had not caused the puddle and did not have actual or constructive notice of the puddle prior to Zuppardi's fall. This timely appeal followed.

II. Discussion

A. The District Court did not Abuse Its Discretion in Denying the Motion to Strike or Deeming Certain Facts Admitted

Zuppardi first argues that the district court erred in denying her motion to strike Wal–Mart's reply. Zuppardi maintains two grounds for striking the reply: that Wal–Mart (1) acted in bad faith by making contradictory assertions in its factual allegations and (2) violated Central District of Illinois Local Rule 7.1 by providing explanation in response to undisputed material facts. A district court's grant or denial of a motion to strike is reviewed for an abuse of discretion. Herzog v. Graphic Packaging Int'l, Inc., 742 F.3d 802, 805 (7th Cir.2014) ; Bernstein v. Bankert, 733 F.3d 190, 216 (7th Cir.2013).

The district court did not abuse its discretion in denying Zuppardi's motion to strike under either rationale. Zuppardi's contention that Wal–Mart's reply brief contained factual allegations contradictory to those found in the motion for summary judgment is inaccurate. Zuppardi sought to strike Wal–Mart's reply brief pursuant to Federal Rule of Civil Procedure 56(h) by pointing to three instances of allegedly contradictory factual statements; however, none of the statements were inconsistent to those found in the original motion. The district court considered each statement and correctly concluded that while the statements found in the reply added clarity to those found in the original motion for summary judgment, they did not oppose or contradict any prior statement. Accordingly, this argument provides no basis for a finding of an abuse of discretion.

Nor did the district court abuse its discretion when it determined that Wal–Mart had not violated Central District of Illinois Local Rule 7.1 by providing brief explanations where Wal–Mart believed that an undisputed material fact was unclear or incomplete. The Central District of Illinois requires a summary judgment movant's reply to additional facts to succinctly state whether each fact is (1) conceded to be material and undisputed; (2) conceded to be material but disputed; (3) immaterial but disputed; or (4) immaterial and undisputed. C.D. Ill. R. 7.1(D)(3)(a)(1–4). Rule 7.1 further states that a failure to respond to any numbered fact will be deemed an admission of that fact. C.D. Ill. R. 7.1(D)(3)(a)(5). Zuppardi argues that Wal–Mart's reply brief was deficient because it occasionally conceded an additional fact was undisputed while clarifying that fact with an additional statement and a citation to the record. But Rule 7.1 contains no language prohibiting the clarification of additional facts in a reply. The district court came to the conclusion that Wal–Mart did not violate Rule 7.1 when it provided a brief explanation regarding an undisputed fact, and a district court's interpretation of its own rules is due considerable deference. See Bunn v. Khoury Enters., 753 F.3d 676, 681 (7th Cir.2014) ; Elustra v. Mineo, 595 F.3d 699, 710 (7th Cir.2010). We will intrude on that discretion only where we are “convinced” the district court made a mistake. Bunn, 753 F.3d at 681. We cannot say we are “convinced” the district court erred in this case when there is nothing at all in the rules to suggest that it did. The district court made a discretionary call concerning a matter not explicitly covered by the local or federal rules, and it was perfectly entitled to do so.

Zuppardi also contends that the district court abused its discretion when it deemed admitted certain facts listed in Wal–Mart's motion for summary judgment. Zuppardi, however, has waived the argument because she failed to identify which facts were improperly deemed admitted or how the alleged error by the district court affected its decision. See Guzman v. City of Chicago, 689 F.3d 740, 744 n. 3 (7th Cir.2012) (quoting Spath v. Hayes Wheels Int'l–Ind. Inc., 211 F.3d 392, 397 (7th Cir.2000) ) (“Perfunctory and undeveloped arguments are waived, especially when, as here, a party fails to develop the factual basis of a claim on appeal and, instead, merely draws and relies upon bare conclusion.” (citation and internal quotation marks omitted)). Waiver aside, we see no error in the district court's handling of Zuppardi's response to Wal–Mart's statement of facts. The same local rule discussed above allowed the district court to deem certain of Wal–Mart's facts admitted, and the district court acted within its discretion in enforcing the rule. Rule 7.1 requires the party...