Joiner v. Winn Dixie Louisiana, Inc.

Filing 25

ORDER AND REASONS that Winn-Dixie Montgomery LLCs "Motion for Summary Judgment" is GRANTED. Signed by Judge Nannette Jolivette Brown on 7/6/2015. (cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VIOLA JOINER

CIVIL ACTION

VERSUS

CASE NO. 14-2081

WINN-DIXIE LOUISIANA, INC.

SECTION: “G” (4)

ORDER AND REASONS
Presently pending before the Court is a “Motion for Summary Judgment”1 filed by Defendant
Winn-Dixie Montgomery, LLC (“Winn-Dixie”).2 This motion was filed on March 17, 2015 and set
for submission on April 1, 2015. Pursuant to Local Rule 7.5, opposition to a motion must be filed
eight days before the noticed submission date. Joiner has filed no opposition at this time, and
therefore the Court deems this motion unopposed. District courts may grant an unopposed motion
for summary judgment, as long as the motion has merit.3
Joiner filed this action against Winn-Dixie on August 12, 2014, in the Civil District Court
for the Parish of Orleans, seeking recovery for losses or damages incurred as a result of a December
19, 2013 accident in one of Defendant’s stores.4 Specifically, she contends that she slipped and fell
1

Rec. Doc. 17.

2

Joiner named “Winn Dixie Louisiana, Inc.” as Defendant. In Winn Dixie’s Notice of Removal, however,
it avers that:
Winn-Dixie Louisiana, Inc. was the “non-survivor” of a mergers [sic] with Winn-Dixie Montgomery,
LLC which was filed with the Louisiana Secretary of State on January 31, 2005. Winn-Dixie
Louisiana, Inc., has been on “inactive” status with the Louisiana Secretary of State since January 2005.
Rec. Doc. 1 at p. 1 n.1.
3

See Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001); John v. State of La. (Bd. of Trustees for State Colleges
and Universities), 757 F.2d 698, 709 (5th Cir. 1985).
4

Rec. Doc. 1-1.

on rice spilled on the floor of an aisle in Winn-Dixie’s store on Tchoupitoulas Street in New Orleans,
and that this accident was caused solely and proximately by the negligence of Winn-Dixie.5 This case
was removed to this Court by Defendant on September 11, 2014. Joiner further contends that WinnDixie “spoiled or otherwise did not preserve evidence pertinent to this matter,” warranting “an
adverse presumption regarding evidence and burden of proof issues.”6 On September 15, 2014,
Winn-Dixie filed an answer.7 On March, 17, 2015, Winn-Dixie filed the instant motion,8 which was
submitted without opposition on April 1, 2015.
In the instant motion, Winn-Dixie contends that it is entitled to judgment as a matter of law
because Joiner cannot prove that Winn-Dixie employees had actual or constructive notice of the
condition that allegedly caused her injuries, and therefore cannot satisfy the requirements of LA. REV.
STAT. § 9:2800:6, which governs negligence claims against a merchant arising from a “fall due to
a condition existing in or on a merchant’s premises.”9 Winn-Dixie contends that statements made
by Joiner and Cryln Cosey, who was shopping with Joiner at the time of the events in question,
demonstrate that neither Joiner nor Cosey know how long the rice was on the floor before Joiner
allegedly slipped on it.10 Thus, Winn-Dixie argues, Joiner “produces no evidence to create a ‘positive
showing’ that any Winn-Dixie employee had actual notice of the condition, created the condition,

5

Rec. Doc. 1-1 at pp. 1–2.

6

Id. at p. 2.

7

Rec. Doc. 6.

8

Rec. Doc. 17.

9

Rec. Doc. 17-1 at pp. 4; 7 (citing LA. REV. STAT. § 9:2800.6).

10

Id. at pp. 7–8.

2

or that the condition was on the floor for such a period of time that Winn-Dixie should have
discovered it in the exercise of reasonable care.”11 Consequently, Winn-Dixie contends, Joiner
“cannot prove the elements necessary to meet her burden of proof at trial,” making summary
judgment appropriate.12
Joiner has filed no opposition to the pending motion. Thus, there are no material facts at
issue here. The Court therefore finds that Winn-Dixie’s motion has merit. Accordingly,
IT IS HEREBY ORDERED that Winn-Dixie Montgomery LLC’s “Motion for Summary
Judgment”13 is GRANTED.
NEW ORLEANS, LOUISIANA, this ______ day of July, 2015.
6th

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

11

Id. at p. 8.

12

Id.

13

Rec. Doc. 17.

3