Green v. Dollar General et al

Filing 39

ORDER AND REASONS GRANTING 29 MOTION to Continue Submission Hearing Date of Defendant's Motion for Summary Judgment. FURTHER ORDERED that the defendant may supplement its motion no later May 15, 2018, and the plaintiff may supplement its opposition no later than May 22, 2018. Signed by Judge Martin L.C. Feldman on 3/16/2018.(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PAMELA GREEN

CIVIL ACTION

v.

NO. 17-2101

DOLLAR GENERAL AND
ABC INSURANCE COMPANY

SECTION "F"

ORDER AND REASONS
Before

the

Court

is

Pamela

Green’s

expedited

motion

to

continue the submission date of the defendant’s motion for summary
judgment. For the reasons that follow, the motion is GRANTED.
Background
Pamela

Green

visited

a

Dollar

General

store

in

Violet,

Louisiana on the evening of March 5, 2016. When she opened the
door to the store freezer to retrieve some popsicles, an insulated
plastic half-gallon jug called the Igloo Legend Beverage Cooler
fell from its perch above the freezer onto Green’s head. The
contact allegedly caused a cervical herniation at the C-5/6 level.
The insulated jug weighed 1.1 lbs.
Green sued DG Louisiana, LLC (Dollar General) in the 34th
Judicial District Court in St. Bernard Parish on January 27, 2017.
The action was removed to this Court on March 13, 2017. It was set
for trial on October 10, 2017, but was continued. The trial is now
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scheduled to take place on June 25, 2018. On March 5, 2018, the
defendant filed a motion for summary judgment. The motion heavily
relied

on

the

deposition

of

Mindy

McBride,

a

Dollar

General

employee. McBride testified that she had inspected the cooler
placement

an

hour

and

a

half

before

the

incident,

that

the

employees perform safety checks of the shelves and freezers three
times a day, and that she personally tested the stability of the
coolers by performing a “bump test.” According to McBride, shortly
after the incident she bumped up against the freezers and slammed
their doors and yet the stacked coolers did not move. On March 12,
2018, the plaintiff filed a motion to continue the submission date
of the defendant’s motion for summary judgment, and a motion to
expedite the motion to continue.
The motion asks to continue the submission date from March
21, 2018 until discovery is complete on May 10, 2018, pursuant to
Federal

Rule

of

Civil

Procedure

56(d).

It

alleges

that

the

plaintiff’s counsel recently became aware that Mindy McBride was
intimidated and coerced by her former manager at Dollar General,
Mike Wiltz, before giving her deposition. Eric O’Bell, counsel for
plaintiff, stated in a sworn declaration that McBride approached
Green, told her that she was coerced, and provided copies of text
messages between McBride and Wiltz. The plaintiff did not provide
copies of the text messages to the Court with the initial moiton.
2

The motion to continue also states that the defendant has not
provided

the

plaintiff

with

a

working

copy

of

the

video

surveillance of the premises from the day of the incident. Further,
Green plans to depose former store manager, Mike Wiltz, and a
former employee on duty during the incident, Katie Martinez. The
plaintiff claims that obtaining the video, deposing the additional
witnesses,

and

revisiting

and

assessing

the

credibility

of

McBride’s testimony, which the defendant’s motion relies on, will
create a genuine issue of material fact.
On March 13, 2018, the Court granted the motion to expedite,
reset the submission date to March 15, 2018, and ordered the
defendant to submit his opposition by March 14, 2018. The defendant
submitted a timely opposition, and the plaintiff filed a reply.
The plaintiff also submitted a sworn affidavit by Green and copies
of the text messages. Additionally, the plaintiff submitted an
opposition to the motion for summary judgment.
In an affidavit attached to Green’s reply, Green states that
she knew McBride before the incident because they went to high
school together. On November 2, 2017, McBride contacted Green via
Facebook Messenger asking Green to call her. McBride told Green
that

before

the

deposition,

she

had

been

contacted

by

her

supervisor via text and that he informed her that she could be
held personally responsible if Dollar General was found at fault.
3

McBride emailed the text messages to Green on November 3, 2017.
They have not communicated since. Green attached a copy of the
texts to the reply. In response to a text from Mindy McBride
stating that she has the deposition for Green tomorrow, a contact
named “Mike Dollar General” replied:
I thought that was a couple of weeks ago. [J]ust remember
what I said if your store is found to be negligent then that
is a direct reflection on you and you could be terminated for
failing to protect company assets so you better say whatever
it is you have to say to cover your ass.

Mindy responded, “I know.” The deposition took place on July 28,
2017. Notably, Mike Wiltz was terminated from Dollar General on
April 9, 2017 and was not her manager when she gave the deposition.
I.
Federal Rule of Civil Procedure 56(d) permits a district court
to defer considering a pending motion for summary judgment “[i]f
a nonmovant shows by affidavit or declaration that, for specified
reasons,

it

cannot

present

facts

essential

to

justify

its

opposition.” Rule 56(d) motions “are broadly favored and should be
liberally granted” because they “safeguard non-moving parties from
summary judgment motions that they cannot adequately oppose.”
Culwell v. City of Fort Worth, 468 F.3d 868, 872 (5th Cir. 2006).
Regardless, the party seeking a continuance “may not simply rely
on vague assertions that additional discovery will produce needed,
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but unspecified, facts.”

Raby v. Livingston, 600 F.3d 552, 561

(5th Cir. 2010)(quoting Sec. & Exch. Comm’n v. Spence & Green Chem.
Co., 612 F.2d 896, 901 (5th Cir. 1980)).

Instead, the party must

indicate (1) “why he needs additional discovery” and (2) “how the
additional discovery will create a genuine issue of material fact.”
Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1442 (5th Cir. 1993).

II.
A.
Green seeks a continuance of the submission date for the
defendant’s pending motion for summary judgment. She contends that
the evidence of witness intimidation, remaining two depositions,
and need to review a workable copy of the surveillance video
demonstrate a need for additional discovery. According to Green,
without

the

video,

depositions

from

the

manager

and

on

duty

employee, and without further probing McBride to determine the
accuracy of her testimony, she does not have essential facts to
oppose the summary judgment motion.
Dollar General vigorously opposes the motion. Although it had
not yet viewed the text messages when it submitted its opposition,
it contends that because Wiltz had been terminated months before
McBride gave her deposition, he was not in a position to intimidate
or influence her. Moreover, McBride was terminated from Dollar
5

General on October 10, 2017. She contacted the plaintiff about
three weeks later. On November 29, 2017, the plaintiff’s counsel
served the defendant with requests for admission. Four of the
requests refer to a Dollar General employee communicating with an
employee about offering untruthful testimony. For example, Request
for Admission No. 1 states, “Admit or deny that any representative
of Dollar General encouraged any Dollar General employee to protect
the

company

defendant

by

testifying

contends

that

untruthfully

these

questions

in

this

make

matter.”

clear

that

The
the

plaintiff’s counsel was aware of Wiltz’s text messages, yet they
waited three and a half months and until the defendant submitted
a motion for summary judgment to notify the defendant or the Court.
Dollar General also attacks the plaintiff’s complaint that
the defendant has not produced a usable surveillance video. The
defendant produced a CD copy of the store surveillance video to
the plaintiff in September 2017. After the plaintiff notified the
defendant that the CD did not work, the defendant’s counsel invited
the plaintiff to send a copying service of their choosing to make
a copy of the defendant’s original CD. Although the plaintiff
stated in January and February that he would send over a copying
service, the parties did not meet to exchange the CD until last
week.

Because the plaintiff has not diligently sought to resolve

this issue, the defendant contends that he should not get an
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extension

of

time.

Additionally,

there

is

no

video

of

the

plaintiff’s incident or of the aisle and freezers; there was no
surveillance camera filming that area of the store. Dollar General
contends that even if the plaintiff had a workable copy, it would
not illuminate contested issues of material fact because the
existing video surveillance does not show the how the thermos was
positioned on top of the freezers or how the thermos fell.
Finally, the defendant alleges that the plaintiff has not
actively pursued discovery. The plaintiff’s recent request to
depose Mike Wiltz and Katie Martinez was preceded by months of
inactions; until this month, the plaintiff had not attempted to
since it deposed McBride on July 28, 2017.

Although the plaintiff

became aware of Mike Wiltz or Katie Martinez in July 2017 through
the production of the incident report, the plaintiff did not
request to depose Mike Wiltz until March 1, 2018 and Katie Martinez
until March 8, 2018. The defendant filed its motion for summary
judgment on March 5, 2018. It alleges that the plaintiff’s lack of
diligence

in

completing

discovery

bars

her

from

obtaining

a

continuance.
B.
The Court is not impressed with the plaintiff’s counsel’s
timeliness in pursuing discovery in this case. Nonetheless, Green
has satisfied her burden by demonstrating why she needs discovery
7

and how the discovery will create a genuine issue of material fact.
There are only a few employees who have personal knowledge of the
Dollar General’s operations on the day of the incident. Most, if
not

all,

information

on

the

record

that

pertains

to

Dollar

General’s conduct in regards to stacking inventory and the facts
surrounding

the

incident

in

question

comes

from

McBride’s

testimony. The defendant’s motion for summary judgment heavily
relies on McBride’s testimony; the motion does not cite to any
other Dollar General employee or use any other source for factual
information except for the plaintiff’s testimony. As there are
credible

allegations

that

undermine

the

accuracy

of

her

statements, further discovery to assess the truthfulness of her
testimony and to simply obtain testimony from other Dollar General
employee’s is necessary.
In regards to the testimony itself, the Court is deeply
concerned by the evidence presented by Green. Even if Wiltz was
terminated, the evidence, if provable, may discredit McBride’s
testimony. 1

However,

the

Court

is

equally

troubled

by

the

plaintiff’s counsel’s handling of this issue. The Court recognizes

1

Moreover, the Court is compelled to articulate its concern that
one or more of the witnesses to this case fails to appreciate the
criminal consequences of lying under oath. Counsel should be aware
that this Court will not hesitate to refer anyone suspected of
perjury to the United States Attorney’s Office and related agencies
for investigation.
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that Green became aware of this issue four and a half months ago,
and that the November requests for admission suggest that the
plaintiff’s counsel was also aware of the allegedly tampered
testimony. If true, counsel wasted the Court’s and the defendant’s
time by not notifying either of this very serious allegation. 2 The
plaintiff has had months to address McBride’s allegedly falsified
testimony,

and

develop

a

credible

record.

Waiting

until

the

defendant filed a motion for summary judgment that wholly relies
on that testimony to raise this issue is inefficient at best, and
deceitful and unethical at worst. However, as the plaintiff does
not request any relief specifically in regards to the allegedly
coerced testimony, the Court only notes its concern. 3
Accordingly, IT IS ORDERED: that the submission date for the
defendant’s motion for summary judgment is hereby continued until
May 30, 2018. IT IS FURTHER ORDERED: that the defendant may
supplement its motion no later May 15, 2018, and the plaintiff may
supplement its opposition no later than May 22, 2018.

2

Counsel might wish to become better acquainted with 28 U.S.C. §
1927.
3 The Court may not and has not made any credibility determinations
of McBride’s testimony in resolving the pending motion for summary
judgment. Nothing in this Order and Reasons should be construed as
a finding that McBride was coerced and intimidated, or that her
testimony was false.
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New Orleans, Louisiana, March 16, 2018

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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