Brown et al v. Wal-Mart Stores, Inc. et al
Filing
64
OPINION AND ORDER granting Defendant Wal-Mart Stores East, LPs Motion for Summary Judgment 40 and dismissing Defendant John Doe. Signed by Judge William S. Duffey, Jr on 1/27/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARY BROWN and CLAUDE
BROWN,
Plaintiffs,
v.
1:16-cv-111-WSD
WAL-MART STORES EAST, LP,
and JOHN DOE,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendant Wal-Mart Stores East, LP’s
(“Defendant”) Motion for Summary Judgment [40].
I.
BACKGROUND1
A.
Plaintiff Mary Brown’s Slip and Fall
On the evening of December 29, 2013, Plaintiff Mary Brown (“Plaintiff
Mary”) was shopping inside a Wal-Mart store (“Wal-Mart”) operated by
Defendant. (DSMF ¶ 1). At 6:09:52 p.m., an unknown Wal-Mart customer hit a
shampoo display with her shopping cart, knocking shampoo bottles onto the floor.
(DSMF ¶ 2; [42] ¶ 9; [42] at 8-10). The bottles broke and spilled shampoo on the
floor in front of the display. (DSMF ¶ 2). Four (4) minutes and sixteen (16)
seconds later, at 6:14:08 p.m., Plaintiff Mary slipped on the spilled shampoo and
fell. (DSMF ¶ 4; [42] ¶ 9; [42] at 14-15). From the time that the spill occurred
through the time that Plaintiff Mary fell, there were no Wal-Mart employees in the
1
Plaintiffs’ Response to Defendant’s Statement of Material Facts [50.1]
(“DSMF Resp.”) purports to dispute, but does not “directly refute[],” several of the
facts asserted in Defendant’s Statement of Material Facts [41] (“DSMF”).
LR 56.1(B)(2)(a)(2)(ii), NDGa. Pursuant to Local Rule 56.1, the Court deems
each of these facts as admitted. See LR 56.1(B)(2)(a)(1) (“This Court will deem
each of the movant’s facts as admitted unless the respondent . . . directly refutes
the movant’s fact.”). Plaintiffs also make several factual assertions in the body of
their response brief that are not included in Plaintiffs’ Response to Defendant’s
Statement of Material Facts or in Plaintiffs’ Statement of Additional Material
Facts [50.3]. The Court disregards these assertions because they do not comply
with Local Rule 56.1. See LR 56.1(B)(1)-(2) (stating that the court will not
consider any fact “set out only in the brief”); Reese v. Herbert, 527 F.3d 1253,
1268 (11th Cir. 2008) (stating that compliance with Local Rule 56.1 is the “only
permissible way . . . to establish a genuine issue of material fact”).
2
immediate vicinity of the shampoo. (DSMF ¶¶ 7-8; see also [40.3] ¶¶ 9-10; [42] ¶
20).
B.
Defendant’s Safety Policies and Procedures
Defendant has adopted policies and procedures to “keep[] [its store] aisles
clean and free of foreign substances.” (DSMF ¶ 9). These policies and procedures
were in place on December 29, 2013, when Plaintiff Mary slipped and fell.
(DSMF ¶ 9). All Wal-Mart employees are required to “constantly” conduct “safety
sweeps,” meaning they must “visually scan the area they [are] working in to ensure
the floor [is] clean and clear of any hazards to customers.” (DSMF ¶ 10; [53] at
71-72). The employees carry towels in their pockets, and are required to
immediately remove any hazards that they see. (DSMF ¶ 10; [53] at 71). If the
hazard cannot be removed immediately, the employees must “guard” the hazard
until it can be addressed safely. (DSMF ¶ 10). Maintenance employees also are
required to sweep the floors, with a broom, “at all times” throughout the day.
(DSMF ¶ 11; [53] at 49-50, 72). During the “strategic hours” of 11 a.m. through
8 p.m., the maintenance employees sweep the aisles with increased regularity.
(DSMF ¶ 11; [53] at 49, 72).
Jeremy Sanders-Winder (“Sanders-Winder”) is Wal-Mart’s Safety Team
Leader. (DSMF ¶ 12). In December 2013, he “held safety training meetings for
3
store associates on [customer safety] topics three times a week.” ([40.2] ¶ 3).
Sanders-Winder followed Defendant’s safety procedures on December 29, 2013.
(DSMF ¶12; [40.2] ¶ 6). From 12 p.m. through 9 p.m., he inspected Wal-Mart’s
“Front End where the cashiers are located, the main front aisle [where the shampoo
was spilled], and the electronics department in the rear.” ([40.2] ¶ 6; DSMF
¶¶ 12-13). He “visually inspected [these areas] for spills, debris or any foreign
substance which could pose a slip, trip or fall hazard.” (DSMF ¶¶ 12-13; see
[40.2] ¶¶ 6-7). He did not see the spilled shampoo on which Plaintiff Mary
slipped. (DSMF ¶ 13).2
C.
Procedural History
On December 28, 2015, Plaintiffs filed their Complaint [1.2] in the State
Court of Cobb County, Georgia. Plaintiff Mary asserts a claim for premises
liability, her husband, Plaintiff Claude Brown (“Plaintiff Claude”), asserts a claim
2
Plaintiffs state that Defendant’s Asset Protection Office (“APO”) “watch and
monitor the multiple monitors presenting live video feed from the surveillance
cameras of the store.” (DSMF Resp. ¶¶ 8-13). The extent to which the APO
monitors this video feed, and exactly which areas of Wal-Mart are videoed and
streamed to the APO, and when, is unclear. (See, e.g., [53] at 91-99). There is no
evidence that Plaintiff Mary’s accident was, or should have been, streamed live to
the APO. There is no evidence that the APO was required to, or did, watch the
accident in real time. Wal-Mart’s APO Manager, Aleron Morton, stated he did not
witness Plaintiff Mary’s fall on December 29, 2013. ([42] ¶ 6). Wal-Mart’s
Assistant Manager, James Provost, testified that the APO reviews video footage
after an accident. ([53] at 91-93).
4
for loss of consortium, and both Plaintiffs seek attorney’s fees and costs under
O.C.G.A § 13-6-11. On January 13, 2016, Defendant filed its Notice of
Removal [1], removing this action from state court. On August 8, 2016, Defendant
filed its Motion for Summary Judgment, seeking summary judgment on all of
Plaintiffs’ claims.
II.
LEGAL STANDARD
“Summary judgment is appropriate where 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 moving party is entitled to judgment as a matter
of law.” Ahmed v. Air France-KLM, 165 F. Supp. 3d 1302, 1309 (N.D. Ga.
2016); see Fed. R. Civ. P. 56. “An issue of fact is material if it ‘might affect the
outcome of the suit under the governing law.’” W. Grp. Nurseries, Inc. v. Ergas,
167 F.3d 1354, 1360 (11th Cir. 1999) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “An issue of fact is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Id. at 1361
(quoting Anderson, 477 U.S. at 248).
The party seeking summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying [materials]
which it believes demonstrate the absence of a genuine issue of material fact.”
5
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The movant[] can meet this
burden by presenting evidence showing there is no dispute of material fact, or by
showing that the nonmoving party has failed to present evidence in support of
some element of its case on which it bears the ultimate burden of proof.”
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1281-82 (11th Cir. 1999).
The moving party need not “support its motion with affidavits or other similar
materials negating the opponent’s claim.” Celotex, 477 U.S. at 323. Once the
moving party has met its initial burden, the nonmoving party must demonstrate that
summary judgment is inappropriate by designating specific facts showing a
genuine issue for trial. Graham, 193 F.3d at 1282. The nonmoving party “need
not present evidence in a form necessary for admission at trial; however, he may
not merely rest on his pleadings.” Id. “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247-48.
“If the evidence presented by the non-moving party is merely colorable, or is
not significantly probative, summary judgment may be granted.” Apcoa,
Inc. v. Fid. Nat. Bank, 906 F.2d 610, 611 (11th Cir. 1990) (internal quotation
marks omitted) (quoting Anderson, 477 U.S. at 250). The party opposing
6
summary judgment “must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal
quotation marks omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986)).
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Id. “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.” Id. “[C]redibility determinations, the weighing of
evidence, and the drawing of inferences from the facts are the function of the jury.”
Graham, 193 F.3d at 1282. “The nonmovant need not be given the benefit of every
inference but only of every reasonable inference.” Id.
Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be “no genuine issue as to
any material fact,” since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.
7
Celotex, 477 U.S. at 322-23; see Freeman v. JPMorgan Chase Bank N.A., -- Fed.
App’x --, 2017 WL 128002, at *4 (11th Cir. Jan. 13, 2017) (same);
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1247 (11th Cir. 1999) (“If the
non-movant in a summary judgment action fails to adduce evidence which would
be sufficient, when viewed in a light most favorable to the non-movant, to support
a jury finding for the non-movant, summary judgment may be granted.”); cf.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (a party
is entitled to summary judgment if “the facts and inferences point overwhelmingly
in favor of the moving party, such that reasonable people could not arrive at a
contrary verdict” (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1526
(11th Cir. 1997) (internal quotation marks omitted))).
III.
DISCUSSION
A.
Plaintiff Mary Brown’s Slip-and-Fall Claim
“[I]n order to recover for injuries sustained in a slip-and-fall action, an
invitee must prove (1) that the defendant had actual or constructive knowledge of
the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the
exercise of ordinary care due to actions or conditions within the control of the
owner/occupier.” Robinson v. Kroger Co., 493 S.E.2d 403, 414 (Ga. 1997); see
Am. Multi-Cinema, Inc. v. Brown, 679 S.E.2d 25, 28 (Ga. 2009) (“The plaintiff
8
must plead and prove that: (1) the defendant had actual or constructive knowledge
of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her
own personal safety, lacked knowledge of the hazard due to the defendant’s actions
or to conditions under the defendant’s control.”). “The fundamental basis for a
defendant’s liability is that party’s superior knowledge of the hazard encountered
by the plaintiff.” Brown v. Host/Taco Joint Venture, 699 S.E.2d 439, 442 (Ga. Ct.
App. 2010). “The mere existence of a dangerous condition does not render the
proprietor liable, for the proprietor is not a guarantor of the invitee’s safety.” Id. at
443.
Plaintiffs do not argue, and the evidence does not show, that Defendant had
actual knowledge of the spilled shampoo at the time of the accident. Thus,
Plaintiff Mary’s premises liability claim hinges on whether Defendant had
constructive knowledge of the hazard.
A plaintiff can prove the owner’s constructive knowledge of the
hazard by showing: (1) that an employee of the owner was in the
immediate area of the hazard and could have easily seen the hazard
and removed it prior to the slip and fall, or (2) that the hazard had
existed on the premises for a sufficient length of time that it should
have been discovered and removed if the owner had exercised
ordinary care to inspect the premises to keep it safe.
Youngblood v. All Am. Quality Foods, Inc., 792 S.E.2d 417, 419 (Ga. Ct. App.
2016); see Flanagan v. Quiktrip Corp., No. 1:13-cv-3836, 2015 WL 3472957, at *3
9
(N.D. Ga. June 1, 2015); Brown, 699 S.E.2d at 442; Wallace v. Wal-Mart Stores,
Inc., 612 S.E.2d 528, 530 (Ga. Ct. App. 2005); Matthews v. The Varsity, Inc., 546
S.E.2d 878, 880 (Ga. Ct. App. 2001).
Plaintiffs fail to establish constructive knowledge under this standard. The
parties agree, and the evidence shows, that “there were no employees in the
vicinity of the [shampoo spill], either before or immediately after the fall.” ([50] at
2, 4, 7-8; see [43.1] at 115; [40.3] ¶¶ 9-10). Even if an employee was nearby,
“[i]nasmuch as the purported hazard was not readily visible to [Plaintiff Mary], she
did not establish that [a Wal-Mart] employee . . . could have easily seen and
removed it.” Matthews v. The Varsity, Inc., 546 S.E.2d 878, 880 (Ga. Ct. App.
2001).
The undisputed evidence also shows that Plaintiff Mary slipped only
four (4) minutes and sixteen (16) seconds after the shampoo was spilled. This is
insufficient to establish Defendant’s constructive knowledge of the spill. See
Kroger Co. v. Williams, 617 S.E.2d 160, 162-63 (Ga. Ct. App. 2005) (“Given the
short amount of time [(five minutes)] the bean was actually on the floor, Williams,
as a matter of law, cannot show that even if Kroger employees had exercised
reasonable care in inspecting and cleaning the premises, they would have
discovered the bean on the floor before her fall.”); Moore v. Winn-Dixie Stores,
10
Inc., 454 S.E.2d 532, 532 (Ga. Ct. App. 1995) (“Where it appears a foreign object
had not been present for more than 10 to 15 minutes, the allegations show no
actionable negligence on the part of the proprietor in failing to discover it.”).3
Plaintiffs have not shown that an employee was in the immediate area of the
spilled shampoo and could easily have seen and removed it, or that the shampoo
was on the floor for long enough that it should have been discovered and removed
before Plaintiff Mary’s fall.
“Constructive knowledge [also] may be inferred when there is evidence that
the owner lacked a reasonable inspection procedure. In order to prevail at
summary judgment based on lack of constructive knowledge, the owner must
3
See also Hardee’s Food Sys., Inc. v. Green, 502 S.E.2d 738, 741 (Ga. Ct.
App. 1998) (reversing denial of summary judgment for defendant, including
because “Green submitted no evidence that the grease was on the floor for any
length of time”); Haskins v. Piggly Wiggly S., Inc., 496 S.E.2d 471, 473 (Ga. Ct.
App. 1998) (affirming summary judgment for defendant because “Haskins failed to
offer any evidence even suggesting that the foreign substance was present for a
sufficient time for knowledge of its presence to be imputed to Piggly Wiggly”);
Hopkins v. Kmart Corp., 502 S.E.2d 476, 479 (Ga. Ct. App. 1998) (affirming
summary judgment for defendant where the hazard was on the floor for less than
30 minutes, including because “in the absence of evidence that a reasonable
inspection would have discovered the foreign substance, no inference can arise that
defendant’s failure to discover the defect was the result of its failure to inspect”);
Coffey v. Wal-Mart Stores, Inc., 482 S.E.2d 720, 725 (Ga. Ct. App. 1997)
(affirming summary judgment for defendant where the hazard was on the floor for
less than 15 minutes, including because there was no “evidence that the hazard
existed for a length of time sufficient for the defendant to discover the hazard and
remove it”).
11
demonstrate not only that it had a reasonable inspection program in place, but that
such program was actually carried out at the time of the incident.” Brown, 699
S.E.2d at 443; see Higgins v. Food Lion, Inc., 561 S.E.2d 440, 442 (Ga. Ct. App.
2002) (“The evidence must establish an adherence to customary inspection and
cleaning procedures on the day in question and not simply that such procedures
exist”); Shepard v. Winn Dixie Stores, Inc., 527 S.E.2d 36, 38 (Ga. Ct. App. 1999).
This is because “a proprietor has a duty to inspect the premises to discover possible
dangerous conditions and to take reasonable precautions to protect the invitee from
foreseeable dangers on the premises.” Brown, 699 S.E.2d at 442. The proprietor,
however, “is under no duty to continuously patrol the premises in absence of facts
showing that the premises are unusually dangerous.” Flanagan, 2015 WL
3472957, at *7; see Brown, 699 S.E.2d at 442 (“[I]t is well settled that a proprietor
is under no duty to patrol the premises continuously in the absence of facts
showing that the premises are unusually dangerous.”).
The parties agree, and the evidence shows, that Defendant had a reasonable
inspection program in place. (See [50] at 7; [41] ¶ 9). All Wal-Mart employees
are required to “constantly” conduct “safety sweeps,” meaning they must “visually
scan the area they [are] working in to ensure the floor [is] clean and clear of any
hazards to customers.” (DSMF ¶ 10; [53] at 71-72). The employees carry towels
12
in their pockets, and are required to immediately remove any hazards that they see.
(DSMF ¶ 10; [53] at 71). If the hazard cannot be removed immediately, the
employees must “guard” the hazard until it can be addressed safely. (DSMF ¶ 10).
Maintenance employees also are required to sweep the floors, with a broom, “at all
times” throughout the day. (DSMF ¶ 11; [53] at 49-50, 72). Maintenance
employees are particularly active in the aisles from 11 a.m. through 8 p.m. (DSMF
¶ 11; [53] at 49, 72).
The evidence also shows that Defendant executed this inspection program
throughout the day of the accident. ([41] ¶¶ 11-13). Wal-Mart’s Safety Team
Leader testified that he followed Defendant’s safety procedures during the period
that Plaintiff Mary was at the store. On December 29, 2013, from 12 p.m. through
9 p.m., he inspected Wal-Mart’s “Front End where the cashiers are located, the
main front aisle [where the shampoo was spilled], and the electronics department
in the rear.” ([40.2] ¶ 6; DSMF ¶¶ 12-13). He “visually inspected [these areas] for
spills, debris or any foreign substance which could pose a slip, trip or fall hazard.”
(DSMF ¶¶ 12-13; see [40.2] ¶¶ 6-7). In December 2013, he also “held safety
training meetings for store associates on [floor safety] topics three times a week.”
13
([40.2] ¶ 3). Plaintiffs have not presented any contrary evidence suggesting that
Defendant failed to follow its safety procedures on December 29, 2013.4
Plaintiffs have failed to establish that Defendant had actual or constructive
knowledge of the spilled shampoo at the time of the slip-and-fall incident.
Defendant is thus entitled to summary judgment on Plaintiff Mary’s claim for
premises liability. See Flanagan, 2015 WL 3472957, at *3 (“To survive a motion
for summary judgment, a plaintiff must come forward with evidence that, viewed
in the most favorable light, would enable a rational trier of fact to find that the
defendant had actual or constructive knowledge of the hazard.” (quoting Brown,
679 S.E.2d at 28)).
4
Plaintiffs claim that Defendant violated its safety procedures because the
shampoo display was overstocked, a “bump test” was not conducted on the display
shelf, there were no Wal-Mart employees in the immediate area of the spill when
Plaintiff Mary slipped, and the employees “fail[ed] to perform the required safety
sweeps.” (See [50] at 3, 7-8, 10, 13). The Court disregards these factual assertions
because they were made in Plaintiffs’ response brief, not in Plaintiffs’ statements
of material facts. See LR 56.1(B)(1)-(2) (stating that the court will not consider
any fact “set out only in the brief”); Reese, 527 F.3d at 1268 (stating that
compliance with Local Rule 56.1 is the “only permissible way . . . to establish a
genuine issue of material fact”). Even if the Court considered Plaintiffs’
assertions, they would not create a genuine issue of material fact because they are
speculative and unsupported by the evidence. See Scott, 550 U.S. at 380 (stating
that the party opposing summary judgment “must do more than simply show that
there is some metaphysical doubt as to the material facts”); Apcoa, 906 F.2d at 611
(“If the evidence presented by the non-moving party is merely colorable, or is not
significantly probative, summary judgment may be granted.”).
14
B.
Plaintiff Claude Brown’s Loss of Consortium Claim
Plaintiff Claude seeks “loss of income, earning capacity, and loss of the
society, companionship and consortium of his spouse brought about by personal
injuries which Plaintiff Mary sustained due to Defendant’s negligence.” (Compl.
¶ 23). This claim “is a derivative one, stemming from the right of the other spouse
to recover for her injuries.” Holloway v. Northside Hosp., 496 S.E.2d 510, 511
(Ga. Ct. App. 1998). “When the other spouse cannot recover from the alleged
tortfeasor as a matter of law, however, the alleged tortfeasor also is not liable for
loss of consortium arising from those injuries.” Id.
Because the Court has found that Plaintiff Mary is not entitled to relief on
her slip-and-fall claim, Defendant is entitled to summary judgment on Plaintiff
Claude’s derivative claim for loss of consortium. See Behforouz v. Vakil, 636
S.E.2d 674, 676 (Ga. Ct. App. 2006) (“[T]he trial court properly granted summary
judgment to Vakil on Behforouz’s personal injury claims [arising out of a slip and
fall]. Since Behforouz’s husband’s claim for loss of consortium is derivative of his
wife’s personal injury claims, the trial court properly granted summary judgment
to Vakil on the loss of consortium claim as well.”)
15
C.
Plaintiffs’ Claim for Attorney’s Fees
Plaintiffs claim “Defendants have acted in bad faith, has [sic] been
stubbornly litigious, and has [sic] caused Plaintiffs unnecessary trouble and
expense with the result that Plaintiffs are entitled to recover from Defendants all
reasonable expenses of litigation, including reasonably attorney’s fees pursuant to
O.C.G.A. § 13-6-11.” (Compl. ¶ 26).5
“Having determined that Defendant is entitled to summary judgment on
Plaintiff[s’] other claims, Defendant is also entitled to summary judgment on
Plaintiff[s’] claim for attorney’s fees and costs.” Jordan v. CitiMortgage, Inc., No.
1:11-cv-565, 2014 WL 695211, at *7 (N.D. Ga. Feb. 24, 2014) (citing O.C.G.A.
§ 13-6-11); see D.G. Jenkins Homes, Inc. v. Wood, 261 Ga.App. 322, 582 S.E.2d
478 (Ga. Ct. App. 2003) (“The derivative claims of attorney fees and punitive
damages will not lie in the absence of a finding of compensatory damages on an
5
O.C.G.A. § 13-6-11 provides: “The expenses of litigation generally shall
not be allowed as a part of the damages; but where the plaintiff has specially
pleaded and has made prayer therefor and where the defendant has acted in bad
faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble
and expense, the jury may allow them.” O.C.G.A. § 13-6-11. “A recovery for
stubborn litigiousness or causing unnecessary trouble and expense is authorized if
no bona fide controversy or dispute existed as to the defendant’s liability.” King
Indus. Realty, Inc. v. Rich, 481 S.E.2d 861, 867 (Ga. App. Ct. 1997).
16
underlying claim.”).6
IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Wal-Mart Stores East, LP’s
Motion for Summary Judgment [40] is GRANTED.
IT IS FURTHER ORDERED that Defendant John Doe is DISMISSED.
IT IS FURTHER ORDERED that this action is DISMISSED.
SO ORDERED this 27th day of January, 2017.
6
Plaintiffs’ Complaint names John Doe as a defendant in this action.
Fictitious party pleading is not permitted in federal court unless “the plaintiff’s
description of the [fictitious] defendant is so specific as to be at the very worst,
surplusage.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citation
and internal quotation marks omitted). Plaintiffs have not provided any allegations
or evidence regarding the identity or actions of the John Doe defendant. Defendant
John Doe is required to be dismissed from this action.
17
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