McDonald v. Nationwide Building Services Inc et al

Filing 52

MEMORANDUM RULING re 38 MOTION for Partial Summary Judgment filed by Nationwide Building Services Inc. Signed by Judge Terry A Doughty on 4/5/2019. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
MARGARET MCDONALD

CIVIL ACTION NO. 3:17-CV-00981

VERSUS

JUDGE TERRY A. DOUGHTY

BROOKSHIRE GROCERY CO., ET AL.

MAG. JUDGE KAREN L. HAYES
RULING

Pending here is a Motion for Partial Summary Judgment filed by Defendant Nationwide
Building Services, Inc., (“Nationwide”) [Doc. No. 38].

Plaintiff Margaret McDonald

(“McDonald”) filed an opposition [Doc. No. 48]. Nationwide filed a reply to the opposition [Doc.
No. 49].
Pending here also is McDonald’s Motion for Leave to File Third Supplemental & Amended
Petition for Damages [Doc. No. 43]. Nationwide has filed an opposition [Doc. No. 50].
The motions are fully briefed and the Court is prepared to rule.
I.

FACTS AND PROCEDURAL BACKGROUND
McDonald contends that she suffered injuries on June 20, 2016, when she slipped and fell

on water left after the cleaning and buffering of the floor at Defendant Brookshire Grocery
Company’s (“Brookshire”) store in Jonesboro, Louisiana. On May 26, 2017, she filed a Petition
for Damages against Defendants Brookshire, Nationwide, and The Travelers Indemnity Company
of Connecticut (“Travelers”) in the Second Judicial District Court for the Parish of Jackson, State
of Louisiana. On August 1, 2017, the lawsuit was removed to this Court.
On November 9, 2017, the Court issued a Scheduling Order [Doc. No. 15] setting a trial
date of November 13, 2018. The deadline for joinder of parties and amendment of pleadings was

set as March 29, 2018.
On March 12, 2018, McDonald filed a First Supplemental and Amended Petition [Doc.
No. 16], adding as an additional Defendant Argel Building Services, Inc., (“Argel”). She alleged
liability on the basis that Brookshire had retained the services of Nationwide, who in turn had
retained the services of Argel, to clean the floors of the business.
On May 3, 2018, McDonald filed a Motion to Modify Pretrial Scheduling Order [Doc. No.
21], which the Court granted [Doc. No. 23]. A new Scheduling Order was issued, re-setting the
trial for April 15, 2019, and extending the deadline for joinder of parties and amendment of
pleadings to August 29, 2018 [Doc. No. 24].
On October 8, 2018, Argel filed a Motion to Continue Trial and Modify Scheduling Order
[Doc. No. 27], which the Court granted [Doc. No. 28]. A new Scheduling Order was issued, resetting the trial for October 15, 2019, and extending the deadline for joinder of parties and
amendment of pleadings to February 28, 2019 [Doc. No. 29].
On February 28, 2019, McDonald filed a Motion to File Second Supplemental and
Amended Petition [Doc. No. 32] adding as an additional Defendant United Specialty Insurance
Company (“United”), the alleged insurer of Argel. The motion was granted after McDonald cured
a deficiency, and her Second Supplemental and Amended Petition was filed on March 5, 2019
[Doc. No. 36].
On March 7, 2019, Nationwide filed the pending Motion for Partial Summary Judgment
[Doc. No. 38] on the basis that it had no liability to McDonald because it had performed no floor
cleaning or buffering services at the Jonesboro Brookshire store, but, rather, had sub-contracted
that work to Argel, as an independent contractor.
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On March 18, 2019, Brookshire and Travelers filed a Cross Claim against Nationwide
[Doc. No. 42], alleging that the written contract between Brookshire and Nationwide contained an
indemnity clause which provided that Nationwide would defend, indemnify, and hold Brookshire
harmless from any and all claims, damages, or obligations arising out of the performance of
services in cleaning floors at the Brookshire store.
On March 28, 2019, a month after the deadline for amendment of pleadings, McDonald
filed the pending Motion for Leave to File Third Supplemental & Amended Petition for Damages
[Doc. No. 43]. On that same date, she filed a Motion to Continue Trial and Modify Pretrial
Scheduling Order [Doc. No. 45], which the Court denied, observing that the case had been pending
since August 2017 and that the trial date had been continued twice before [Doc. No. 47].
On March 29, 2019, McDonald filed her opposition to Nationwide’s Motion for Partial
Summary Judgment [Doc. No. 48]. On April 1, 2019, Nationwide filed its reply to McDonald’s
opposition [Doc. No. 49].
On April 3, 2019, Nationwide filed an opposition to McDonald’s Motion for Leave to File
Third Supplemental & Amended Petition [Doc. No. 50].
The motions are fully briefed, and the Court is prepared to rule.
II.

LAW AND ANALYSIS
A.

Summary Judgment

Summary judgment Ashall [be] grant[ed] . . . if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.@ FED. R.
CIV. P. 56(a). A fact is Amaterial@ if proof of its existence or nonexistence would affect the
outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477
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U.S. 242, 248 (1986). A dispute about a material fact is Agenuine@ if the evidence is such that a
reasonable fact finder could render a verdict for the nonmoving party. Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving
party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than Asome
metaphysical doubt as to the material facts.@ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court
must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its
favor. Anderson, 477 U.S. at 255.
B.

Analysis

McDonald alleges that on June 20, 2016, she “slipped and fell on some excess water after
the cleaning and buffering of the floors, causing her to fall, [and] causing her serious injury to her
person.” [Doc. No 36, p. 2]. She further alleged that Brookshire “retains the services of
[Nationwide], who in turn upon information and belief, retained the services of [Argel], who is
responsible for cleaning the floors of the business.” Id.
Nationwide moves for summary judgment on the basis that it owed no legal duty to
McDonald, for the following reasons.
On June 15, 2016, Brookshire entered into a Cleaning Maintenance Services Agreement
with Nationwide for cleaning and maintenance services for floors, lavatories, and other areas at
Brookshire grocery store in Jonesboro, Louisiana (the “CMS Agreement”) [Doc. No. 38-3, p. 38].
On January 1, 2016, Nationwide entered into an Independent Sub-Contractor Agreement
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(the “Subcontract Agreement”) with Argel to provide services in the nature of cleaning premises
for certain stores which are customers of Nationwide, including the Brookshire store where this
accident occurred. Id. at pp. 9-22. The Subcontract Agreement included provisions expressly
recognizing both Argel’s expertise in providing professional premises cleaning services and the
independent contractor status governing the business relationship between Nationwide and Argel.
Id. at p. 9.
Nationwide produced the Affidavit of Jose Monemayor, its Vice-President, which states
that on the date of the accident the floor services were performed by employees of Argel, using
supplies and equipment owned by Argel; that Nationwide employees have never preformed floor
cleaning and buffering services at the store; that none of its employees were present at the store on
the date of the accident; that it does not own or operate the Brookshire store premises; and that it
did not place pallets and/or display materials at the store [Doc. No. 38-3, p. 2].
Nationwide argues that it is entitled to a dismissal of McDonald’s claims against it as a
matter of law because there are no genuine issues of material fact that (1) Nationwide did not
perform any floor cleaning or buffering services that allegedly caused or contributed to
McDonald’s slip and fall incident, (2) said services were performed by Argel pursuant to the
Subcontract Agreement, (3) Nationwide did not own or operate the Brookshire’s grocery premises
on the date of the incident, and (4) Nationwide did not place pallets and/or display materials at any
time.
McDonald offers no summary judgment evidence in opposition to the motion. Instead,
she argues that additional time is needed for discovery and that there are potential contractual
indemnity and insurance obligations between and amongst the Defendants.
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Despite the lack of any pertinent factual allegations in her prior pleadings, she argues
further that the “extent of Nationwide’s supervision and involvement [of Argel] is still unknown
and is to be further determined through discovery;” and, that the Court “must look at the potential
of Nationwide’s selection of an insufficiently insured, unskilled subcontractor to perform the
services in question.” [Doc. No. 48-2, p. 5].
In an effort to remedy this lack of factual allegations, on March 28, 2019, after the February
28, 2019 deadline for filing amended pleadings, and after Nationwide filed its Motion for
Summary Judgment on March 7, 2019, McDonald filed a Motion for Leave to File Third
Supplemental and Amended Petition for Damages [Doc. No. 43]. Her proposed pleading makes
the following additional allegations:
“[Nationwide] failed herein for the following non-exclusive particulars:
a) They failed by selecting an unqualified, untrained and unskilled subcontractor;
b) They failed to impose appropriate terms and conditions upon [Argel] in their
contract;
[c]) They failed to properly supervise and monitor compliance of their
subcontractor [Argel] with its obligations under the contract; and
[d]) Other acts of negligence which will be more fully shown herein.”
[Doc. No. 43-3, pp. 3-4].
The Court will address Nationwide’s motion for partial summary judgment first
and then will address McDonald’s motion for leave to amend.
1.

Nationwide’s Motion for Partial Summary Judgment

Nationwide asserts that it has no liability to McDonald because Louisiana law is clear that
a party is not liable for the torts of its subcontractor unless that party retains the right to control the
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manner in which the contractor performs his work. Carmouche v. W.G. Yates and Sons Const.,
No. 2:04-CV-2397, 2006 WL 1635703, at *3 (La. W.D. June 12, 2006) (citing Mack v. CDI
Contractors, Inc., 757 So.2d 93 (La. App. 5 Cir. 2000).)
Nationwide has provided uncontradicted summary judgment evidence that it subcontracted
the work to Argel and retained no right to control the manner in which Argel performed the work.
[Doc. No. 38-3].
Therefore, Nationwide has met its initial burden. The burden now shifts to McDonald to
establish the existence of a genuine issue of material fact for trial. Toward that end, she offers the
following arguments.
a.

The Need for Additional Discovery

McDonald first argues that “Nationwide’s motion [for summary judgment] is in fact
premature,” and states that “[d]iscovery is in its infancy.” [Doc. No. 48-2, p. 3, 7].
“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.” Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002).
This accident occurred on June 20, 2016, nearly three (3) years ago. McDonald’s Petition
for Damages was filed in Louisiana state court on May 26, 2017, and removed to this Court on
August 1, 2017. The original trial date of November 13, 2018, was first continued to April 15,
2019, and then to October 15, 2019.
Nationwide asserts that, as of the date McDonald filed her opposition, she had propounded
no discovery upon any party in this matter. “Not a single interrogatory or request for production
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was propounded upon any defendant, and not a single deposition had been noticed, much less
taken, by Plaintiff.” [Doc. No. 49, p. 4].
Therefore, the Court is not persuaded McDonald’s first argument has merit.1
b.

Potential Contractual Indemnity and Insurance Obligations Between and
Amongst the Co-Defendants

McDonald next refers to language in the contracts between the Co-Defendants concerning
purported defense, indemnity and insurance obligations between themselves. She also cites the
fact that Brookshire recently filed a Cross Claim against Nationwide contending that Nationwide
has a contractual obligation to indemnify Brookshire [Doc. No. 42].
McDonald has not shown how potential risk transfer provisions in contracts between the
Co-Defendants have a bearing on her burden of proof against Nationwide. She is not a party to
those contracts. Her discussion of contractual risk transfer and insurance obligations is irrelevant
to the instant motion, which concerns whether Nationwide owed a legal duty to her.
The Court is not persuaded that McDonald’s second argument has merit.
c.

Previously Unpled Theories of Recovery

Nationwide filed its Motion for Partial Summary Judgment based on the allegations
McDonald set forth in her latest, Second Amended Petition for Damages [Doc. No. 36] filed into
the record on March 5, 2019.
But now McDonald seeks to defeat summary judgment by making new allegations. She
alleges that the extent of Nationwide’s supervision and involvement of Argel is still unknown and
that Nationwide potentially may have selected an insufficiently insured, unskilled subcontractor.

1

To the extent McDonald moves for a delay in ruling on the MSJ and for additional time to take discovery under
Rule 56(d), she has not met the requirements of that rule, and relief is not warranted.

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When a claim is raised for the first time in response to a summary judgment motion, the
district court should construe that claim as a motion to amend the complaint under Federal Rule
of Civil Procedure 15(a). Riley v. Sch. Bd. Union Parish, 379 F. App’x 335, 341 (5th Cir. 2010).
Here, McDonald has, in fact, simultaneously filed a Motion for Leave to File Third
Supplemental & Amended Petition for Damages [Doc. No. 43] in an effort to assert these new
allegations.
The Court is required to address that motion at this point in its analysis.
When deciding whether to grant a party leave to amend, the court considers the following
factors: (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies
by previous amendments, (4) undue prejudice to the opposing party, and (5) futility of the
amendment. Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). Absent any of these factors, leave should be granted. Smith v.
EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citation omitted).
With regard to the “undue delay” factor, McDonald’s motion for leave to amend, filed on
March 28, 2019, is clearly untimely. The deadline to amend pleadings was February 28, 2019,
and that deadline had been extended twice before that.
Additionally, this lawsuit was removed to this Court on August 1, 2017. McDonald has
had more than one-and-one-half years to propound discovery, yet she has failed to propound any
discovery at all to any party. Therefore, the “undue delay” factor operates against allowing the
amendment.
With regard to the “bad faith or dilatory motive” factor, McDonald offers no factual basis
for her new allegations asserting a completely new theory of recovery against Nationwide. This
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new theory is not based on newly discovered material. Nationwide asserts that McDonald’s
new allegations are not based on anything but were “created out of whole cloth.” [Doc. No. 50,
p. 5]. McDonald amended her petition more than a year ago, on March 12, 2018, to name as an
additional Defendant, Argel, who actually performed the work at the Brookshire store on the date
in question. Yet she has taken no steps since then to discover facts that might support her new
allegations. It seems apparent that the sole purpose of McDonald’s request to amend is to
attempt to defeat Nationwide’s motion for summary judgment. Thus, the “bad faith or dilatory
motive” factor operates against allowing the amendment.
With regard to the “repeated failure to cure deficiencies by previous amendments” factor,
this new request for leave to file her Third Supplemental and Amended Petition comes less than
a month after McDonald filed her Second Supplemental and Amended Petition on March 5,
2019. The only thing that has changed since that time is Nationwide’s filing of Motion for
Summary Judgment. McDonald has cited no reason why she could not have made these new
allegations in her prior amended pleadings.

This factor, too, operates against allowing the

amendment.
With regard to the “undue prejudice to the opposing party” factor, McDonald has had at
least three prior opportunities, in her original petition and the two subsequent amended petitions,
to frame her claims and her theories of recovery against all of the parties. Nationwide in good
faith filed its motion for summary judgment almost three (3) years after the accident, based on all
allegations made by McDonald during that time. To allow McDonald to amend her petition
after the deadline to amend pleadings has passed, and after Nationwide has filed its motion for
summary judgment, would be patently unfair and would also result in undue prejudice to
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Nationwide. The process could go on indefinitely. Therefore, this factor also operates against
allowing the amendment.
With regard to the last factor, “futility of the amendment,” McDonald offers nothing to
suggest additional discovery will reveal facts in her favor. She merely asserts that the “extent of
Nationwide’s supervision and involvement [of Argel] is still unknown and is to be further
determined through discovery.” [Doc. No. 48-2, p. 5].
The Fifth Circuit has emphasized “the fact that a defendant has filed a motion for
summary judgment is significant in the determination whether a plaintiff's motion to amend is
timely.” Little v. Liquid Air Corp., 952 F.2d 841, 846, n.2 (5th Cir. 1992). The Fifth Circuit has
noted that “[m]uch of the value of summary judgment procedure ... would be dissipated if a party
were free to rely on one theory in an attempt to defeat a motion for summary judgment and then,
should that theory prove unsound, come back long thereafter and fight on the basis of another
theory.” Id.
The Court concludes, after careful consideration of all of the above factors, that
McDonald’s motion for leave to amend should be DENIED.
Having made that determination, the Court concludes that Nationwide is entitled to
judgment as a matter of law holding that it has no liability to McDonald. Louisiana law is clear
that a party is not liable for the torts of its subcontractor unless that party retains the right to control
the manner in which the contractor performs his work. There is no genuine issue of material fact
which would preclude summary judgment in Nationwide’s favor. Nationwide’s motion for
summary judgment, therefore, should be GRANTED.
III.

CONCLUSION
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For the foregoing reasons, McDonald’s Motion for Leave to File Third Supplemental &
Amended Petition for Damages [Doc. No. 43] is DENIED.
Additionally, Nationwide’s Motion for Partial Summary Judgment [Doc. No. 38] is
GRANTED. McDonald’s claims against Nationwide are DISMISSED WITH PREJUDICE.
Nationwide will remain a party because of the Cross-Claim [Doc. No. 42].
MONROE, LOUISIANA, this 5th day of April, 2019.

____________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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