Reynolds v. Dollar General Corporation et al
MEMORANDUM OPINION AND ORDER signed by Senior Judge Joseph H. McKinley, Jr. on 11/13/20; denying 67 Motion for Summary Judgment: IT IS HEREBY ORDERED that Defendant Mann Construction, Inc.s Motion for Summary Judgment [DN 67 ] is DENIED without prejudice. Defendant can renew its motion at the close of discovery. cc: Counsel(DJT)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 4:18-CV-00173-JHM
DOLLAR GENERAL CORPORATION;
DOLLAR GENERAL PARTNERS;
DG STRATEGIC VI, LLC;
NATIONAL MERCHANDISING OF AMERICA, INC.;
MANN CONSTRUCTION, INC.;
BUDGET ELECTRIC, LLC;
NATIONAL RESETS & REMODELS, LLC
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Mann Construction, Inc.’s Motion for
Summary Judgment. [DN 67]. Fully briefed, this matter is ripe for decision. For the following
reasons, Defendant’s Motion for Summary Judgment is DENIED without prejudice.
According to the Second Amended Complaint, Plaintiff Bonnie Reynolds was injured by
a falling shelving unit as she walked into a Dollar General store in Owensboro, Kentucky. [DN
32 ¶¶ 11–12]. The store was under construction at the time, and several contractors were
performing work on the building. [Id. at ¶¶ 21–23]. Plaintiff sued Dollar General Corporation,
its subsidiaries, and four contractors or subcontractors who performed construction work,
asserting negligence. [Id. at ¶ 21]. Defendant Mann Construction, Inc. (“Mann Construction”)
was one of the contractors. [Id.].
Mann Construction now moves for summary judgment. [DN 67]. It claims that its
remodel work on the Dollar General store was limited to certain types of maintenance, electrical,
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and flooring work, and it was not responsible for the shelving units that caused Plaintiff’s
injuries. [Id. at 2]. In response, Plaintiff asks the Court to deny or defer the motion until the end
of discovery, pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. [DN 74]. In
support, Plaintiff provides an affidavit stating that the coronavirus pandemic delayed Plaintiff’s
ability to conduct discovery. [DN 74-1]. Plaintiff was hospitalized with COVID-19 and her
counsel’s office closed for two weeks in July after a staff member tested positive for COVID-19.
[DN 74 at 3–4, DN 74-1 at ¶¶ 6–7].
II. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the nonmoving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
Although the Court must review the evidence in the light most favorable to the
nonmoving party, the nonmoving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the
nonmoving party to present specific facts showing that a genuine factual issue exists by “citing
to particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence . . . of a genuine dispute.” FED. R. CIV. P. 56(c)(1). “The mere existence of
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a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there
must be evidence on which the jury could reasonably find for the [nonmoving party].”
Anderson, 477 U.S. at 252.
Mann Construction moves for summary judgment on the basis that it had no control over
the shelving that allegedly caused Plaintiff’s injuries. Plaintiff does not dispute the merits of
Mann Construction’s argument—she instead asks the Court to deny or defer ruling on the
summary judgment motion until she can conduct discovery. FED. R. CIV. P. 56(d)(2).
Rule 56(d) provides that if a nonmovant “shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, 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.” FED. R. CIV. P. 56(d). “The burden is
on the party seeking additional discovery to demonstrate why such discovery is necessary.”
Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004) (citing Wallin v. Norman, 317 F.3d 558, 564
(6th Cir. 2003)). While the nonmoving party usually must file a formal Rule 56 affidavit that
states “the materials [it] hopes to obtain with further discovery,” id., the Sixth Circuit has
recognized Rule 56(d) is satisfied if the party “complie[s] with the substance and purpose of
Rule 56(d)” by “inform[ing] the district court of [the] need for discovery prior to a decision on
the summary judgment motion.” Moore v. Shelby Cty., 718 F. App’x 315, 319 (6th Cir. 2017)
(quoting Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 627 (6th
Cir. 2002)). In Moore, the Sixth Circuit concluded that a plaintiff made a sufficient request for
additional discovery when she argued for additional discovery in a summary judgment motion
but did not file a Rule 56(d) affidavit. Id. Granting summary judgment simply because the
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plaintiff did not file a “redundant” Rule 56(d) affidavit, the court held, would “unduly exalt form
over substance.” Id.
Here, the Plaintiff went further than the plaintiff in Moore—she actually filed a Rule
56(d) affidavit. [DN 74-1]. While the affidavit does not explicitly state the materials she hopes
to obtain with additional discovery, the answer appears obvious: information about Mann
Construction’s control over the shelving unit that injured her. Granting summary judgment
because Plaintiff failed to include that detail would “unduly exalt form over substance.” See
Moore, 718 F. App’x at 719.
Further, it is well-settled in the Sixth Circuit that “when the parties have no opportunity
for discovery . . . ruling on a summary judgment motion is likely to be an abuse of discretion.”
CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008) (citing Ball v. Union Carbide Corp.,
385 F.3d 713, 719 (6th Cir. 2004)). In Moore, the court reversed a district court’s grant of
summary judgment because the defendant moved for summary judgment only eight days after
discovery opened. 718 F. App’x at 320. The court stated that such early grants of summary
judgment “are extraordinary and not the norm,” because “before a district court tests a party’s
evidence, the party should have the opportunity to develop and discover the evidence.” Id.
The parties in this case held the scheduling conference on March 17—right at the
beginning of the coronavirus pandemic. At the beginning of July, the parties agreed to extend
discovery “due to delays caused by the coronavirus pandemic.” [DN 64]. Mann Construction
moved for summary judgment twenty-eight days later, with six months left in discovery. While
Plaintiff had some opportunity for discovery prior to the summary judgment motion, she did not
have a sufficient opportunity to “develop and discover the evidence.” Moore, 718 F. App’x at
320. Mann Construction’s summary judgment motion was premature.
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For the reasons set forth above, IT IS HEREBY ORDERED that Defendant Mann
Construction, Inc.’s Motion for Summary Judgment [DN 67] is DENIED without prejudice.
Defendant can renew its motion at the close of discovery.
November 13, 2020
Counsel of Record
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