Berg v. United Air Lines, Inc.

Filing 37

ORDER granting 14 MOTION for Partial Summary Judgment as to First Cause of Action; NOTICE re: Consideration of Sua Sponte Entry of Partial Summary Judgment as to Second Cause of Action Pursuant to FRCP 56(f). Signed by Judge Samuel Conti on 08/24/2012. (sclc2, COURT STAFF) (Filed on 8/24/2012)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 10 For the Northern District of California United States District Court 9 11 12 13 DEBRA BERG, ) ) Plaintiff, ) ) v. ) ) UNITED AIR LINES, INC., and DOES 1 ) through 20, inclusive, ) ) Defendants. ) ) Case No. 11-3612-SC ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT; NOTICE RE: CONSIDERATION OF SUA SPONTE ENTRY OF PARTIAL SUMMARY JUDGMENT PURSUANT TO RULE 56(F) 14 15 16 I. INTRODUCTION Plaintiff Debra Berg ("Plaintiff" or "Berg") sued Defendant 17 United Air Lines, Inc. ("Defendant" or "United") in California 18 state court on May 16, 2011. 19 Ex. A ("Compl."). 20 for negligence, arising from two incidents which allegedly injured 21 her feet: (1) a slip-and-fall at United's "Red Carpet Club" where 22 Berg was waiting to board a United flight to her home city of 23 Portland (the "slip-and-fall claim"), and, (2) once she boarded, an 24 incident in which a United flight attendant allegedly struck one of 25 Berg's injured feet with a beverage cart (the "beverage-cart 26 claim"). Id. 27 grounds. NOR at 2. 28 matter for a jury trial commencing September 4, 2012, and gave the ECF No. 1 (notice of removal ("NOR")) Berg's complaint asserts two causes of action United removed the case to this Court on diversity On November 18, 2011, the Court set this 1 parties a discovery cutoff date of July 5, 2012 and a final motion 2 hearing date of July 27, 2012. ECF No. 12. On the last day to timely file a motion, June 22, 2012, United 3 4 filed the first motion by either party, one for partial summary 5 judgment. 6 slip-and-fall claim. 7 ("Opp'n"), 16 ("Reply").1 ECF No. 14 ("Mot."). Id. The motion addressed only Berg's It has been fully briefed. ECF Nos. 15 On August 1, 2012, the Court sua sponte issued an Order to 8 United States District Court Show Cause requiring United to demonstrate that the case satisfied 10 For the Northern District of California 9 the amount-in-controversy requirement for diversity-based removal 11 jurisdiction. 12 motion for partial summary judgment without prejudice pending 13 resolution of the jurisdictional question. 14 a responsive brief on August 10. 15 Order, the Court issues an order retaining jurisdiction and deeming 16 the previously deferred summary-judgment motion ripe for ruling. ECF No. 20 ("OSC"). The Court also denied United's OSC at 6. ECF No. 21. United filed Concurrent with this For the reasons set forth below, the Court GRANTS United's 17 18 motion for partial summary judgment with respect to Berg's slip- 19 and-fall claim. 20 claim against Berg and in favor of United. 21 to Federal Rule of Civil Procedure 56(f), the Court notifies Berg 22 1 23 24 25 26 27 28 The Court will separately enter judgment on that Furthermore, pursuant The parties have submitted declarations in support of their briefs. ECF Nos. 14-1 (declaration of Richard G. Grotch, counsel for United ("Grotch Decl. ISO Mot.")), 15-1 (declaration of John P. Hannon, counsel for Berg ("Hannon Decl."), 15-2 (declaration of Berg ("Berg Decl.")), 16-1 ("Grotch Decl. ISO Reply"), 16-2 (declaration of Gary Juliano, United employee and manager of the club where Berg allegedly was injured ("Juliano Decl.")). Both parties submit excerpts of a transcript of United's deposition of Berg, taken on March 23, 2012. E.g., Grotch Decl. ISO Mot. Ex. A, Hannon Decl. at 2-8 (collectively, "Berg Depo."). Because both sides cite to the same certified copy of the deposition transcript, the Court refers to the transcript's internal page and line numbers without respect to which party filed the particular excerpt. 2 1 that it is considering entering summary judgment against her and in 2 favor of United with respect to her beverage-cart claim. The jury trial of Plaintiff's remaining cause of action 3 4 remains scheduled to begin on September 4, 2012. 5 6 II. BACKGROUND The following account is taken from the evidence submitted by 7 8 the parties viewed in the light most favorable to Berg.2 9 26, 2010, Berg was in the Red Carpet Room, a club operated by On June See Berg United States District Court For the Northern District of California 10 United within the San Francisco International Airport. 11 Depo. at 19:8-10. 12 watching a sporting event on the club's television. 13 20. 14 seat at the bar and went to the ladies' restroom within the Red 15 Carpet Room. 16 on one of the overhead flight information monitors located within 17 the Red Carpet Club that her flight to Portland was starting to 18 board. 19 accumulated on the granite floor. 20 Decl. ¶ 2-3; Grotch Decl. ISO Mot. Ex. C (Berg's responses to 21 interrogatories ("Interog. Resp.")) ¶ 13. 22 sprained and fractured both feet. 23 also injured her pelvis, low back, and hip, and suffers from 24 anxiety and stress related to these injuries. Berg was sitting at the bar, drinking coffee and After "at least" a half-hour and up to an hour, Berg left her Id. at 20:8-16. Id. at 20:17-21:7. After leaving the restroom, she saw Berg then slipped in water that had Id. at 21:18-25, 22:13-17; Berg In the fall, Berg Interog. Resp. ¶¶ 2, 6. 26 ¶ 15. 27 2 Berg Id. After Berg fell, she boarded her flight to Portland. 25 28 Id. at 19:11- See id. Once Berg was onboard, the passenger in front of her allowed The account does not include matters deemed admitted pursuant to Federal Rule of Civil Procedure 36 which, as set forth in Section IV infra, prove dispositive of this motion. 3 1 her to place one of her injured feet on the armrest. Id. While 2 Berg's foot was elevated, one of the United flight attendants 3 struck it with the beverage cart. Id. 4 5 III. LEGAL STANDARD 6 Entry of summary judgment is proper "if the movant shows that 7 there is no genuine dispute as to any material fact and the movant 8 is entitled to judgment as a matter of law." 9 56(a). Fed. R. Civ. P. Summary judgment should be granted if the evidence would United States District Court For the Northern District of California 10 require a directed verdict for the moving party. Anderson v. 11 Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). 12 without the ultimate burden of persuasion at trial -- usually, but 13 not always, a defendant -- has both the initial burden of 14 production and the ultimate burden of persuasion on a motion for 15 summary judgment." 16 Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "A moving party Nissan Fire & Marine Ins. Co., Ltd. v. Fritz "In order to carry its burden of production, the moving party 17 18 must either produce evidence negating an essential element of the 19 nonmoving party's claim or defense or show that the nonmoving party 20 does not have enough evidence of an essential element to carry its 21 ultimate burden of persuasion at trial." 22 its ultimate burden of persuasion on the motion, the moving party 23 must persuade the court that there is no genuine issue of material 24 fact." 25 non-moving party. 26 States, 474 F.3d 616, 621 (9th Cir. 2007). 27 /// 28 /// Id. Id. "In order to carry The moving party may rely on facts admitted by the Fed. R. Civ. P. 56(c)(1)(A); Conlon v. United 4 1 IV. DISCUSSION 2 A. Berg's Slip-and-Fall Claim 3 In seeking summary judgment with respect to Berg's slip-and- 4 fall claim, United argues that Berg has already admitted matters 5 that defeat her claim and require entry of summary judgment in its 6 favor. 7 Reply at 2-4. The Court concludes that United is correct. Under Rule 36, "[a] matter is admitted unless, within 30 days 8 after being served, the party to whom the request is directed 9 serves on the requesting party a written answer or objection United States District Court For the Northern District of California 10 addressed to the matter and signed by the party or its attorney." 11 Fed. R. Civ. P. 36(a)(3). 12 establish "conclusively" the matter admitted. 13 motion to establish the admissions is needed because Rule 36 is 14 self-executing." 15 1210 (C.D. Cal. 2004). 16 The effect of a failure to respond is to Id. 36(b). "No Cook v. Allstate Ins. Co., 337 F. Supp. 2d 1206, The district court may, however, entertain a motion to 17 withdraw the admission. 18 should grant the motion to withdraw an admission when doing so 19 would promote the presentation of the merits of the case and would 20 not prejudice the other party. 21 Co., 291 F. Supp. 2d 1104, 1111 (C.D. Cal. 2003). 22 Fed. R. Civ. P. 36(b). District courts Wright v. Paul Revere Life Ins. When, however, a party not only fails to respond to a request 23 for admission but also fails to file a motion seeking to withdraw 24 the admissions, entry of summary judgment against that party on the 25 basis of the admissions is proper. 26 O'Campo v. Hardisty, 262 F.2d 621, 624 (9th Cir. 1958)); Wright v. 27 Paul Revere Life Ins. Co., 291 F. Supp. 2d 1104, 1111 (C.D. Cal. 28 2003); see also Cereghino v. Boeing Co., 873 F. Supp. 398, 403 (D. 5 Conlon, 474 F.3d at 621 (citing 1 Or. 1994) (negligence case where district court granting summary 2 judgment on issue of damages ruled that "a request for admission 3 under Rule 36, and a resultant admission, are not improper merely 4 because they, as here, relate to an 'ultimate fact,' or prove 5 dispositive of the entire case."); Asea, Inc. v. S. Pac. Transp. 6 Co., 669 F.2d 1242, 1247-48 (9th Cir. 1981) (no "absolute right" to 7 have admissions withdrawn, even when admission "amount[s] almost to 8 an admission of liability")). 9 withdrawn or amended cannot be rebutted by contrary testimony or Further, "[a]n admission that is not United States District Court For the Northern District of California 10 ignored by the district court simply because it finds the evidence 11 presented by the party against whom the admission operates more 12 credible." 13 v. AAA Legal Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991)). 14 However, before a district court enters summary judgment on the 15 basis of admissions alone, the moving party must provide admissible 16 evidence, such as a declaration, that its request for admission has 17 been served and no response has been received. 18 Metro Police Dept., 4 F. App'x 414, 416 (9th Cir. 2001). 19 Cook, 337 F. Supp. 2d at 1210 (quoting Am. Auto. Ass'n See Carrasco v. In this case, United has submitted an uncontroverted 20 declaration stating that United served its requests for admission 21 on Berg, through her counsel, on May 31, 2012. 22 ISO Reply at ¶ 2. Berg had until July 5, 2012 to respond to 23 United's requests. See Fed. R. Civ. P. 36(a)(3) (thirty-day 24 deadline); id. 6(d) (adding three days to deadline if service is 25 effected in certain ways). 26 responded. See Grotch Decl. As of July 13, 2012, Berg had not Grotch Decl. ISO Reply at ¶ 4. 27 28 6 Thus, by operation of 1 Rule 36(b), Berg is deemed to have admitted the matters contained 2 in United's request for admission.3 Those matters are dispositive of Berg's slip-and-fall claim 3 4 and justify entry of summary judgment in favor of United with 5 respect to that claim. 6 which was removed on diversity grounds. 7 F.3d 493, 495 (9th Cir. 2002) (citing Klaxon Co. v. Stentor Elec. 8 Mfg. Co., 313 U.S. 487, 496 (1941)). 9 property owner must have actual or constructive knowledge of a California law applies to this action, See Patton v. Cox, 276 Under California law, "a United States District Court For the Northern District of California 10 dangerous condition before liability will be imposed." 11 Rogers Jewelry, 203 Cal. App. 4th 381, 385 (Cal. Ct. App. 2012) 12 (citing Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (Cal. 2001)). 13 Thus, United, to win summary judgment against Berg's slip-and-fall 14 claim, must show that Berg "does not have enough evidence of an 15 essential element to carry [her] ultimate burden of persuasion at 16 trial" and that there is no genuine issue of material fact. 17 Nissan, 210 F.3d at 1102. 18 admissions alone. 19 evidence" that United knew of the water in which she slipped, "no 20 evidence" that United should have known of it, and "no idea" how 21 long the water was there. 22 2-4. 23 establish that United had actual or constructive notice of the 24 water on the floor of the Red Carpet Club, which is an essential 25 3 26 27 28 Getchell v. United can do so on the basis of Berg's Berg has admitted, inter alia, that she has "no Grotch Decl. ISO Reply Ex. A ("RFA") ¶¶ Berg, in other words, admits to having no evidence tending to Berg has been on notice of her failure to respond since United filed its reply brief focusing on July 13, six weeks ago. Reply at 2-4. Since then, Berg has neither moved to withdraw her admissions nor made any mention of her failure to respond. This observation, of course, should not be construed to mean that United was under any affirmative duty to notify Berg, who is represented by counsel, of her own failure to abide by the Federal Rules. It was not. 7 1 element of her negligence cause of action for the slip-and-fall 2 incident. 3 Berg has admitted that there is none. 4 genuine issue of material fact. 5 and-fall claim. 6 Moreover, no contrary evidence has been presented, and Id. Hence there is no Berg's admissions doom her slip- Even if the Court were to ignore the matters deemed admitted 7 under Rule 36 -- and it may not, see Cook, 337 F. Supp. 2d at 1210 8 -- the Court still would grant summary judgment to United. 9 Consistent with Berg's apparent failure to participate in United States District Court For the Northern District of California 10 discovery, she has mustered only the barest resistance to United's 11 motion by filing a four-page opposition brief, nearly three pages 12 of which is devoted to an analysis-free recital of background facts 13 and laws. 14 She states that the "only evidence that is before this court is the 15 testimony of Berg as provided in her deposition." 16 That is true, but Berg's deposition testimony hardly helps her 17 slip-and-fall claim, since she admitted in that deposition that she 18 did not "have any way of saying how long the water had been there 19 [on the floor of the Red Carpet Club]." 20 admission, as explained above, proves fatal to her negligence 21 claim, because Berg admits that she has no way to say whether the 22 water was on the floor long enough to impute to United constructive 23 notice of its presence on the floor of the Red Carpet Club. 24 other words, Berg admitted at her deposition the same fact that she 25 admitted by operation of Rule 36(b). 26 And the analysis Berg does offer is thin gruel indeed. Opp'n at 3. Berg Depo. 28:3-5. This In Berg suggests in her opposition that United's motion must fail 27 because United has not presented evidence of their premises 28 inspection or maintenance policies. 8 Opp'n at 3-4. This argument 1 betrays a misapprehension of how summary judgment works. 2 may prevail by showing out that Berg "does not have enough evidence 3 of an essential element to carry [her] ultimate burden of 4 persuasion at trial." 5 so, since, as Berg concedes, the only evidence before the Court is 6 Berg's deposition testimony, in which Berg admits that she has no 7 way of knowing how long the water was on the floor. 8 that Berg cannot prove that United had notice of the alleged spill, 9 United has carried its burden of persuasion. Nissan, 210 F.3d at 1102. United United has done By showing And, because the only United States District Court For the Northern District of California 10 evidence before the Court are the excerpts of Berg's deposition 11 testimony offered by the parties through counsel, including Berg's 12 counsel, there can be no genuine issue regarding this material 13 fact. 14 with respect to Berg's slip-and-fall claim even if the matters 15 deemed admitted under Rule 36(b) did not so entitle it. Thus, United would be entitled to entry of summary judgment 16 B. Berg's Beverage-Cart Claim 17 The foregoing analysis appears to apply with equal force to 18 Berg's second negligence claim, arising from the alleged beverage- 19 cart incident. 20 after the slip-and-fall incident, a United flight attendant struck 21 her elevated foot with the onboard beverage cart. 22 operation of Rule 36(b), however, Berg is deemed to have admitted, 23 and thus conclusively established, that this never happened. 24 22. 25 claim. 26 That claim was premised on Berg's allegation that, Compl. ¶ 14. By RFA ¶ Such an admission is obviously fatal to Berg's beverage-cart The Court has the power to enter summary judgment against Berg 27 on her beverage-cart claim sua sponte after providing her with 28 notice and a full and fair opportunity to be heard. 9 Fed. R. Civ. 1 P. 56(f)(3); Norse v. City of Santa Cruz, 629 F.3d 966, 971 (9th 2 Cir. 2010) cert. denied, 132 S. Ct. 112 (U.S. 2011). 3 courts have availed themselves of this procedure in a variety of 4 circumstances. 5 5434240 (D. Ariz. Oct. 24, 2011) (issuing Rule 56(f) notice after 6 determining that possible lack of genuine issue of fact pertaining 7 to defendant's intent might result in pointless trial for nominal 8 damages); Hall v. City of Fairfield, 2:10-CV-00508-GEB, 2012 WL 9 1205651 (E.D. Cal. Apr. 11, 2012) (issuing "tentative" summary United States District Court For the Northern District of California 10 11 District E.g., Byrd v. Arpaio, CV 04-02701-PHX-NVW, 2011 WL judgment ruling after review of pretrial filings). Normally, summary judgment should not be entered sua sponte 12 until the parties have had an opportunity to respond that is 13 equivalent to the filing of a brief opposing a motion for summary 14 judgment. 15 version of Rule 56, district court erred in entering summary 16 judgment against a party sua sponte without giving that party 17 notice equivalent to that provided by Federal Rules of Civil 18 Procedure and applicable local rules and without giving party 19 chance to develop evidentiary record relating to the particular 20 issue on which summary judgment was granted). 21 decided before the December 2010 revisions to Rule 56 removed the 22 previous 10-day notice requirement. 23 court specifically declined to decide what effect the applicable 24 local rules would have "in the absence of a specific national 25 rule," as well as whether the two-day notice given by the district 26 court in that case "would have been 'reasonable' under the revised 27 rule." 28 exercise special care in providing notice when contemplating See Norse, 629 F.3d at 971-73 (under then-operative Id. However, Norse was See id. at 972 n.5. The Norse "In all cases, however, district courts should 10 1 granting summary judgment sua sponte on the eve of trial after the 2 dispositive motion deadline has passed." Id. In this case, the Court is confident that it exercising the 3 of whether she should be permitted to withdraw her admission that 6 the beverage cart never hit her foot pursuant to Rule 36(b). 7 the Court previously stated, Berg has not yet made any such motion. 8 If she were to do so, the only factors the Court need consider are 9 whether permitting her to withdraw the admission would promote the 10 United States District Court requisite care. 5 For the Northern District of California 4 The only issue that Berg need address is the issue presentation of the merits of the case and would not prejudice the 11 other party. 12 required to dispose of these issues beyond a declaration from the 13 parties' counsel and perhaps the parties themselves. 14 the Federal Rules no longer contain any firm notice requirements, 15 instead deferring to judicial discretion and district courts' local 16 rules. 17 provide judges with latitude to notice motions as dictated by the 18 circumstances of the case. 19 motions shall be noticed pursuant to the requirements of Civ. L.R. 20 7-2 and 7-3), id. 7-2 (35 days' notice required "[e]xcept as 21 otherwise ordered or permitted" by the Court), id. 7-3 (providing 22 "not more than" 14 days for filing opposition). Wright, 291 F. Supp. 2d at 1111. See Fed. R. Civ. P. 56(b). As No evidence is As to notice, This Court's local rules See Civ. L.R. 56-1 (summary judgment The Court hereby notifies Berg that, for the reasons stated 23 24 herein, it is considering entering summary judgment against her and 25 in favor of United as to her beverage-cart claim. 26 shall be heard at the previously scheduled pre-trial conference and 27 hearing on United's motions in limine set for August 31. 28 /// 11 This matter 1 V. CONCLUSION 2 For the foregoing reasons, the Court hereby GRANTS United's 3 motion for partial summary judgment against Berg with respect to 4 her first cause of action for negligence, pertaining to the alleged 5 slip-and-fall incident within United's Red Carpet Club. 6 separately will enter judgment on that claim against Berg and in 7 favor of United. 8 9 The Court Berg's second cause of action for negligence, pertaining to the alleged beverage-cart incident, is subject to sua sponte entry United States District Court For the Northern District of California 10 of partial summary judgment due to Berg's admission under Rule 11 36(b) that no beverage cart ever collided with her. 12 of whether partial entry of summary judgment shall issue as to that 13 claim shall be heard at the previously noticed pretrial conference 14 and motion hearing set for 10:00 a.m. on Friday, August 31, 2012, 15 in Courtroom 1, United States Courthouse, 450 Golden Gate Avenue, 16 San Francisco, California. 17 18 The question The jury trial set for September 4, 2012 remains scheduled to begin on that date. 19 20 IT IS SO ORDERED. 21 22 23 Dated: August 24, 2012 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 12

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