Mickalowski v. Office Depot, et al
Filing
72
ORDER denying 40 Motion for Summary Judgment; adopting Report and Recommendations re 59 Report and Recommendations.. Signed by Judge S. Thomas Anderson on 8/16/12. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
JAMIE C. MICKALOWSKI and JOHN )
MICKALOWSKI
)
)
Plaintiffs,
)
)
v.
)
No. 10-2926-STA-cgc
)
OFFICE DEPOT, INC. and BLUE CHIP )
INVESTMENTS f/k/a BLUE CHIP
)
INVESTMENTS PARTNERSHIP,
)
)
)
Defendants.
)
______________________________________________________________________________
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________
Before the Court is Defendant Office Depot, Inc.’s (“Defendant”) Motion for Summary
Judgment (D.E. # 40), filed on April 5, 2012. Plaintiffs filed a Response (D.E. # 46-47) on April
30, 2012, and Defendant filed a Reply (D.E. # 49) on May 18, 2012. The Court referred the
Motion to the Magistrate Judge for Report and Recommendation (“R&R”) on May 31, 2012.
(D.E. # 51.) The Magistrate Judge issued an R&R recommending that the Court deny
Defendant’s Motion on July 27, 2012. (D.E. # 59.) Neither party has filed objections to the
Report. For the reasons set forth below, the Magistrate Judge’s Report is ADOPTED, and
Defendant’s Motion is DENIED.
BACKGROUND
1
This personal injury case arises from Plaintiff Jamie Mickalowski’s (“Mrs.
Mickalowski”) slip and fall outside Defendant’s retail location in Germantown, Tennessee, a
suburb of Memphis, in January of 2010. (Compl. ¶ 6.) Plaintiffs initially filed their Complaint
in Shelby County Circuit Court on December 8, 2010, but Defendant removed the case to this
Court on December 22, 2010 on the basis of diversity jurisdiction. (D.E. # 1.) Although both
Defendant and Defendant Blue Chip Investments (“Blue Chip”) filed Motions for Summary
Judgment, Blue Chip and Plaintiffs filed a Notice of Settlement on July 23, 2012. (D.E. # 56.)
Thus, the remaining parties to the case are Plaintiffs and Defendant.
According to the R&R, the parties were required to file objections with the court by
August 10, 2012. Both parties have filed motions since the R&R issued on July 27. For
example, Plaintiffs filed a Motion for a Protective Order (D.E. # 62) and a Motion to Compel
(D.E. # 70), and Defendant filed a Motion to Exclude the Opinion Testimony of Russell
Kendzior (D.E. # 61). All of these Motions are currently pending before the Magistrate Judge.
Notably, neither party moved to extend the deadline to file objections to the R&R.
ANALYSIS
Although neither party has filed objections to the R&R, the Court is obligated to review
the Magistrate Judge’s recommendations to determine whether it will “accept, reject, or modify
[them] in whole or in part.”1 After reviewing the R&R and other documents filed in the case de
novo, the Court concludes that the Magistrate Judge correctly recommended denying Defendant’s
Motion. The Magistrate Judge correctly noted that several issues of fact remain in the case,
including whether Mrs. Mickalowski undertook a greater risk than an ordinarily prudent person
1
28 U.S.C. § 636(b)(1)(C).
2
would take under the circumstances, whether Mrs. Mickalowski proceeded with sufficient
caution given the weather conditions, and the exact conditions outside the Office Depot when
Mrs. Mickalowski fell, especially regarding the extent of the shoveling and sweeping of snow to
clear the path. Moreover, the presence and application of comparative fault are circumstances for
the factfinder to consider and determine.2 The Court finds that a number of disputed factual
issues remain, and Tennessee law generally mandates submission of questions of comparative
fault to a jury. Therefore, the Court ADOPTS the Magistrate Judge’s Report and DENIES
Defendant’s Motion for Summary Judgment.
CONCLUSION
For the reasons set forth above, this Court ADOPTS the Magistrate Judge’s Report and
Recommendation. Defendant’s Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: August 16, 2012.
2
Timmons v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 307 S.W.3d 735, 745
(Tenn. Ct. App. 2009).
3
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