New v. Kohl's Department Stores, Inc.

Filing 137

OPINION and ORDER: The Court DENIES Plaintiff's Motion for Reconsideration (Dkt. 124 ) and DENIES AS MOOT Plaintiff's Motion for Sanctions (Dkt. 115 ) and Motion for Clarification (Dkt. 132 ). Signed by Judge Michael L. Brown on 8/9/2021. (tmf) Modified on 8/9/2021 to edit text(tmf).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Dorothy Linda New,
Plaintiff,
Case No. 1:18-cv-2529-MLB
v.
Kohl’s Department Stores, Inc.,
Defendant.
________________________________/
OPINION & ORDER
Before the Court is Plaintiff Dorothy Linda New’s motion for
reconsideration of the Court’s previous order granting in part and
denying in part Defendant Kohl’s Department Stores, Inc. (“Kohl’s”)
motion for summary judgment. (Dkts. 130; 124.) The Court denies
Plaintiff’s motion for reconsideration. The Court also denies as moot
Plaintiff’s motion for sanctions and motion for clarification. (Dkts. 115;
132.)
I.

Background
On February 21, 2017, Plaintiff was shopping at the Kohl’s store in

Acworth, Georgia when she fell. (Dkt. 1-1 ¶¶ 2, 7.) In April 2018,

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Plaintiff sued Defendant, alleging common law negligence and statutory
negligence. (Id. at 5–8.) On May 24, 2018, Defendant removed the case
to this Court. (Dkt. 1.) On April 14, 2020, Defendant moved for summary
judgment. (Dkt. 81.) While that motion was pending, Plaintiff moved for
sanctions due to spoliation of evidence. (Dkt. 115.) The Court held a
status conference on Plaintiff’s motion during which the Court stated
Defendant would have twenty days after the Court issued its order on
Defendant’s motion for summary judgment to respond to the motion for
sanctions. (Dkt. 119.) The Court also stated that Plaintiff could file a
motion for reconsideration if it properly meets the standard and believes
the Court incorrectly addresses the spoliation issue in its summary
judgment order. (Id.) The Court also noted it would consider spoliation
as argued in the briefs on summary judgment and not consider the late
motion as a supplement. (Hearing Tr. 2/5/21.) The Court later granted
in part and denied in part Defendant’s motion for summary judgment.
(Dkt. 124.) Plaintiff now moves for reconsideration of that order. (Dkt.
130.)

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II.

Standard of Review
“The Court does not reconsider its orders as a matter of routine

practice.” Belmont Holdings Corp. v. SunTrust Banks, Inc., 896 F. Supp.
2d 1210, 1223 (N.D. Ga. 2012) (citing LR 7.2(E), NDGa). Under the Local
Rules of this Court, “[m]otions for reconsideration shall not be filed as a
matter of routine practice,” but only when “absolutely necessary.” LR
7.2(E), NDGa.

Such absolute necessity arises only when there is

“(1) newly discovered evidence; (2) an intervening development or change
in controlling law; or (3) a need to correct a clear error of law or fact.”
Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258–59 (N.D. Ga. 2003). A
motion for reconsideration may not be used “to present the court with
arguments already heard and dismissed or to repackage familiar
arguments to test whether the court will change its mind.” Id. at 1259.
Nor may it be used “to offer new legal theories or evidence that could have
been presented in conjunction with the previously filed motion or
response, unless a reason is given for failing to raise the issue at an
earlier stage in the litigation.” Adler v. Wallace Comput. Servs., Inc., 202
F.R.D. 666, 675 (N.D. Ga. 2001). Finally, “[a] motion for reconsideration
is not an opportunity for the moving party . . . to instruct the court on

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how the court ‘could have done it better’ the first time.” Pres. Endangered
Areas of Cobb’s Hist., Inc. v. U.S. Army Corps of Eng’rs, 916 F. Supp.
1557, 1560 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996). “Motions
for reconsideration are left to the sound discretion of the district court
and are to be decided ‘as justice requires.’” Belmont, 896 F. Supp. 2d at
1223.
III. Discussion
Plaintiff contends her motion is an argument the Court committed
clear error in several instances by incorrectly applying the summary
judgment standard by failing to draw reasonable inferences in Plaintiff’s
favor.1 (Dkt. 133 at 13–14.) A clear error consists of a manifest error of
law or fact “made despite a clear presentation of the issue by the party
seeking reconsideration.” Paper Recycling, Inc. v. Amoco Oil Co., 856 F.
Supp. 671, 678 (N.D. Ga. 1993), on reconsideration (Dec. 14, 1993). “If

At points, Plaintiff argues the Court did not “draw all inferences” in her
favor. (See Dkt. 130 at 2, 8.) Only justifiable inferences may be drawn
in her favor. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993) (the Court must “resolve all reasonable doubts about the facts
in favor of the non-movant[] and draw all justifiable inferences in his or
her favor”). Plaintiff acknowledges this qualification in her reply brief
and states that her mention of “all inferences” was a short-handed
reference to the proper standard.

1

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the district court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.”

Ledford v. Warden, Ga.

Diagnostic & Classification Prison, 818 F.3d 600, 632–33 (11th Cir.
2016).
Plaintiff argues the Court did not draw all inferences from disputed
facts in her favor as to (1) the identity of the cart and (2) the significance
of the warning on a later cart model. (Dkt. 130 at 2–13.) Plaintiff also
argues that the Court’s rejection of Plaintiff’s spoliation claim improperly
takes the issue from the jury. (Id. at 16–18.) Plaintiff finally contends
that Defendant’s supplemental filing on Plaintiff’s negligence claim does
not refute the genuine disputes of material fact the Court found in
partially denying Defendant’s motion for summary judgment. (Id. at 13–
16.)
Defendant contends, and the Court agrees, Plaintiff’s motion
repackages the same arguments raised before, adds new arguments, and

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asks the Court to rethink its prior ruling.2 (Dkt. 131 at 3.) “Parties . . .
may not employ a motion for reconsideration as a vehicle to present new
arguments or evidence that should have been raised earlier, introduce
novel legal theories, or repackage familiar arguments to test whether the
Court will change its mind.” Brogdon ex rel. Cline v. Nat’l Healthcare
Corp., 103 F. Supp. 2d 1322, 1338 (N.D. Ga. 2000); see also Bacho v.
Rough Country, LLC, No. 3:14-CV-40, 2016 WL 4607902, at *2 (N.D. Ga.,
June 1, 2016) (denying a motion for reconsideration when the defendant
rehashed “the same cases and arguments offered before, but with
renewed vigor to attempt to illustrate just how mistaken the Court was”).
A.

Identity of the Cart

Plaintiff contends the Court did not properly accept her testimony
as to the description of the cart she was using and did not resolve all
reasonable doubts in her favor. (Dkt. 130 at 3.) The Court’s summary
judgment order bifurcated Plaintiff’s claims into arguments about a “nonKohl’s cart” and a “Kohl’s cart.” (See generally Dkt. 124.) Plaintiff argues
these characterizations do not reflect the record in the case. (Dkt. 130 at

Defendant also correctly noted Plaintiff’s motion does not mention “clear
error” and does not even reference the standard required for
reconsideration. (Dkt. 131 at 2–3.)

2

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3.) Plaintiff testified that the cart she used was found inside the front of
the store with other shopping carts.

(Dkt. 38 at 31:4–12, 32:2–7.)

Plaintiff contends this testimony should have given rise to an inference
that the cart she was using belonged to Defendant. (Dkt. 130 at 4.)
Plaintiff, for the first time, argues the non-Kohl’s cart belonged to
Kohl’s. (Dkt. 130 at 4, 8.) She must mean it was a non-standard Kohl’s
cart that somehow “belonged” to Kohl’s. Even if this argument were
timely, which it is not, it is unsupported. While Plaintiff testified she
found the cart inside the store, she also testified the cart she was using
had a canvas (not mesh bag) with a black jig-jag/zig-zag design on it and
it was different from all the other shopping carts at the store. (Dkt. 38
at 312–36:1, 39:1–5.) The cart she used was also smaller than the black
mesh cart depicted in a photograph of the cart the manager on duty said
Plaintiff was using before she fell. (Dkts. 38 at 108:6–8; 81-6 ¶¶ 4, 7; 81-4
¶ 8; 81-7 ¶¶ 3, 4; 81-8 ¶¶ 4, 5.) The Court found, from this testimony, a
jury could conclude there was a non-Kohl’s cart in the store or Plaintiff
was mistaken and using the standard Kohl’s cart. (Dkt. 124 at 10–11.)
That was why the Court considered alternative claims based on the

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possibility Plaintiff was using either a Kohl’s cart and a non-Kohl’s cart—
to give Plaintiff the benefit of all reasonable inferences from the evidence.
The record requires no inference to conclude Plaintiff testified she
was not using a Kohl’s cart. She said that. Beyond Plaintiff’s own
testimony, Patricia Donaldson, the store manager, testified by
declaration that during her 18 years of employment with Kohl’s, none of
the Kohl’s stores she has worked in ever had shopping carts with a beige
canvas bag or with beige canvas bags with a black zig zag design. (Dkt.
81-6 at 3.) David Barnes, a loss prevention supervisor, also testified by
declaration that during his employment with Kohl’s, none of the Kohl’s
stores he worked in have ever had shopping carts with a beige canvas bag
or with beige canvas bags with a black zig zag design. (Dkt. 81-7 ¶ 3.)
Any inference a cart with a beige canvas bag “belonged” to Kohl’s is
unreasonable—“no reasonable jury may infer from the assumed facts the
conclusion upon which the non-movant’s claim rests.” Gomez v. Harbor
Freight Tools USA, Inc., No. 3:17-CV-41, 2018 WL 3430685, at *3 (M.D.
Ga. July 16, 2018) (quoting Mize v. Jefferson City Board of Educ., 93 F.3d
739, 743 (11th Cir. 1996)).

The Court is unpersuaded by Plaintiff’s

untimely argument that the non-Kohl’s cart “belonged” to Kohl’s.

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B.

Significance of Warning

Plaintiff argues the Court’s “unnaturally narrow construction of the
warning Kohl’s placed” on a different cart design violates the summary
judgment standard. (Dkt. 130 at 8.) In her response to Defendant’s
motion for summary judgment, Plaintiff claimed the presence of a
warning—“Do Not Use As a Walking Aid”—was evidence from which a
jury could infer Defendant knew that putting weight on its carts is
dangerous. (Dkt. 89 at 17, 19.) The Court held, however, Plaintiff never
argued she was using the cart as a walking aid and there was nothing to
support Plaintiff’s contention that the warning was the same as a
warning to not put weight on or lean on the cart. (Dkt. 124 at 24.)
Plaintiff argues the Court attributes an unreasonably narrow
construction to the plain meaning of the warning, taking away the jury’s
province to make that deduction from the words. (Dkt. 130 at 9.) She
contends, without citation and for the first time, that “[t]he plain and
reasonable meaning of a ‘walking aid’ is an item that a person who needs
assistance to walk safely would utilize for that purpose.” (Id.) Plaintiff,
however, testified that she did not use any kind of walking aid at the time
of the incident and she did not think she was using the shopping cart to

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maintain her balance at the time of the incident. (Dkt. 38 at 28:22–29:1,
109:12–24.) Plaintiff testified that she was preparing to turn the cart—
placed her right hand on the right side of the frame—at the time of the
incident. (Id. at 67:14–68:25.) She was going to move the cart forward,
but the right side of the cart went down. (Id. at 109:22–24.) Nothing in
the record suggests Plaintiff was using the cart as a walking aid.
Plaintiff also argues, as she did in her response to Defendant’s
motion for summary judgment, that the existing warning encompasses a
warning not to lean on the cart. (Dkt. 130 at 10.) Plaintiff contends the
warning proves and would permit a jury to conclude that Defendant was
aware placing weight on its carts could result in a dangerous incident.
(Id. at 12.) First, this is not a leaning-on-a-cart case. Second, the Court
found there to be no evidence of any prior substantially similar incidents.
(Dkt. 124 at 21–22.) Third, the Court found there was no indication that
Plaintiff would not have fallen while turning any other cart. (Id. at 24.)
Fourth, a motion for reconsideration may not be used “to present the
court with arguments already heard and dismissed or to repackage
familiar arguments to test whether the court will change its mind,”
Bryan, 246 F. Supp. 2d at 1259, or “to instruct the court on how the court

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‘could have done it better’ the first time.” Pres. Endangered Areas, 916
F. Supp. at 1560.
Plaintiff, for the first time, cites product liability failure to warn
cases for the proposition that it is for the jury to determine the adequacy
of warnings. (Dkt. 130 at 11 n.2.) A motion for reconsideration, however,
is not an opportunity “to offer new legal theories or evidence that could
have been presented in conjunction with the previously filed motion or
response.” Adler, 202 F.R.D. at 675. This is also not a product liability
failure to warn case and has nothing to do with the adequacy of any
warning. Plaintiff tries to use the warning on a different Kohl’s cart to
prove knowledge—an attempted use that has nothing to do with
adequacy. The Court thus finds Plaintiff’s arguments about the warning
on another cart unavailing.
C.

Spoliation

Plaintiff contends that the Court’s rejection of her spoliation claim
improperly takes the issue from the jury. (Dkt. 130 at 16.) In the Court’s
summary judgment order, it held Plaintiff had not met her burden of
showing spoliation occurred, in part because she made no attempt to
address the issue of bad faith. (Dkt. 124 at 27 n.13.)

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On January 27, 2021, Plaintiff filed a motion for sanctions due to
spoliation of evidence. (Dkt. 115.) On February 5, 2021, the Court held
a status conference on Plaintiff’s motion for sanctions. (Dkt. 119.) In
Plaintiff’s motion for reconsideration, she contends it is unclear whether
the Court took consideration of her additional briefing—her motion for
sanctions—in rejecting Plaintiff’s spoliation claims. (Dkt. 130 at 16.) In
her motion for reconsideration, Plaintiff simply “reiterates and
incorporates by references” the arguments in her spoliation motion. (Id.
at 17.) As stated during the February 5, 2021 hearing, the Court did not
consider Plaintiff’s supplemental briefing when ruling on Defendant’s
motion for summary judgment. (Hearing Tr. 2/5/21.) It is inappropriate
for Plaintiff to simply reiterate and incorporate by reference a motion the
Court said it would not consider in connection with the summary
judgment motion. Plaintiff articulates no grounds establishing any error,
let alone clear error, for the Court’s summary judgment order finding
Defendant did not spoliate evidence.
The only possible argument the Court can glean from Plaintiff’s
motion for reconsideration is that the Court misapplied the role of bad
faith in spoliation. (Dkt. 130 at 16.) Even if that is Plaintiff’s argument,

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that was not the sole ground for the Court’s holding. As to the shopping
cart, the Court found Plaintiff did not provide any evidence or argument
that showed Defendant received express notice of actual litigation before
her attorney’s letter which was sent seventeen days after Plaintiff’s fall
and seventeen days after Defendant put the cart back in circulation.
(Dkt. 124 at 28.) See Canales v. Pilot Travel Ctrs., LLC, No. 7:19-CV-100,
2020 WL 8093583, at *10 (M.D. Ga. Nov. 30, 2020) (“An injury ‘without
more, is not notice that the injured party is contemplating litigation
sufficient to automatically trigger the rules of spoliation.’” (quoting
Aubain-Gray v. Hobby Lobby Stores, Inc., 747 S.E.2d 684, 687 (Ga. Ct.
App. 2013))). As to the surveillance video, the Court found Plaintiff only
speculated that there may have been video of herself in other areas of the
store. (Dkt. 124 at 29.) See Wright v. Wal-Mart Stores E., L.P., No. 1:18CV-1006, 2021 WL 86836, at *7 (N.D. Ga. Jan. 11, 2021) (“Simply put,
there is no evidence whatsoever of any additional footage that existed,
and Plaintiff’s speculation is insufficient to establish a spoliation claim.”).
Second, a motion for reconsideration is not an opportunity “to offer new
legal theories or evidence that could have been presented in conjunction
with the previously filed motion or response.” Adler, 202 F.R.D. at 675.

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Plaintiff could have expanded on her bad faith arguments in her response
to Defendant’s motion for summary judgment, but she did not.
D.

Negligence Claim

In the Court’s summary judgment order, the Court invited
Defendant to file a supplemental filing if it believed it addressed
Plaintiff’s negligence claim in its motion for summary judgment. (Dkt.
124 at 1 n.1.) On April 9, 2021, Defendant filed its supplemental filing,
arguing it addressed Plaintiff’s negligence claim in its motion. (Dkt. 128.)
Plaintiff now, in her motion for reconsideration, responds to that filing.
(Dkt. 130 at 13–16.)
In Defendant’s supplemental filing, it argues Plaintiff’s negligence
and premises liability claims make the exact same allegations. (Dkt. 128
at 2.)

Defendant contends that its motion for summary judgment

addressed Plaintiff’s negligence and premises liability claims because as
plead, they are essentially one in the same.

(Id. at 3.)

Defendant

contends in its motion for summary judgment it argued the cart was not
hazardous, defective, or unsafe and Defendant did not have superior
knowledge of an alleged hazardous conditions, so both of Plaintiff’s
negligence claims fail. (Id. (citing Owens v. Wal-Mart Stores East, LP,

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No. 1:18-CV-3979, 2020 WL 1800309 (N.D. Ga. Jan. 23, 2020).)3
Defendant, however, never explicitly addressed Plaintiff’s negligence
claim. (See generally Dkt. 81-2.) See United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles
buried in briefs.”). It never argued in the alternative or mentioned active
negligence. In Defendant’s supplemental briefing, it discusses inspection
procedures, but the Court held there was no evidence to suggest
inspections were carried out on the day of the incident, so a material fact
exists as to constructive knowledge.

(Dkts. 128 at 4; 124 at 18.)

Defendant also contends there was no evidence of causation, but Plaintiff
testified the cart’s downward flexibility caused her to fall. (Dkts. 128 at
4; 38 at 53:7–11, 70:13–20.) Defendant’s final contention is that it was

In Owens, the plaintiff argued the case was a premises liability case, or
in the alternative, a case of active negligence. 2020 WL 1800309, at *5.
The court first analyzed the plaintiff’s claim using premises liability rules
and found there was no evidence the defendant had superior knowledge
of the hazard. Id. at *3–4. The court then examined previous court’s
holdings and the evidence and concluded there was no evidence the
alleged hazard was created by an act or omission by the defendant while
the plaintiff was on the premises, the undisputed evidence was that there
was no leaking on spilling of water onto the floor, and an inspection was
conducted five to ten minutes before the incident. Id. at *5–6. But here
the parties did not explicitly argue in the alternative and Defendant
presented no evidence to suggest inspections were carried out on the day
of the incident. (Dkt. 124 at 1 n.1, 18.)
3

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not negligent in supplying a non-Kohl’s cart because three Kohl’s
witnesses all testified that there was never a non-Kohl’s cart in the store.
(Dkt. 128 at 5.) But in deciding summary judgment, the court does “not
weigh conflicting evidence or make credibility determinations.” Wate v.
Kubler, 839 F.3d 1012, 1018 (11th Cir. 2016). The Court thus maintains
its original holding denying Defendant’s motion for summary judgment
as to Plaintiff’s negligence claim. (Dkt. 124 at 1 n.1.)
E.

Plaintiff’s Motion for Sanctions

In Defendant’s response to Plaintiff’s motion for reconsideration, it
contends “Plaintiff should be sanctioned, and Kohl’s awarded its
attorneys’ fees incurred in responding to this frivolous motion.” (Dkt. 131
at 1.)

The Court finds that, although ultimately subject to denial,

Plaintiff’s motion for reconsideration is not objectively frivolous. During
the March 5, 2021 teleconference, the Court invited Plaintiff to move for
reconsideration. (Dkt. 119.) Although Plaintiff was told to only file a
motion for reconsideration if she properly meets the standard, which she
does not, the Court’s invitation weighs against awarding fees. The Court

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thus finds the motion not objectively frivolous and denies Defendant’s
request for sanctions and attorneys’ fees.4
IV.

Conclusion
The Court DENIES Plaintiff’s Motion for Reconsideration (Dkt.

124) and DENIES AS MOOT Plaintiff’s Motion for Sanctions (Dkt. 115)
and Motion for Clarification (Dkt. 132).
SO ORDERED this 9th day of August, 2021.

Defendant also only offhandedly mentions attorneys’ fees twice—once
in the introduction and once in the conclusion—in its response to
Plaintiff’s motion for reconsideration. (Dkt. 131 at 1, 22.)

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