Dixon v. Haza Foods of Louisiana, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DARRELL DIXON CIVIL ACTION

VERSUS NO. 20-389

HAZA FOODS OF LOUISIANA, LLC SECTION M (1)

ORDER

Before the Court is a motion by plaintiff Darrell Dixon seeking relief from this Court’s

Order granting summary judgment in favor of defendant Haza Foods of Louisiana, LLC (“Haza”)

and dismissing all of Dixon’s claims with prejudice.1 Haza responds in opposition.2 Having

considered the parties’ memoranda, the record, and the applicable law, the Court denies Dixon’s

motion.

I. BACKGROUND

Dixon alleges that he was injured when he tripped and fell over a piece of rebarb intended

to hold a cement parking curb in place in the parking lot of a Wendy’s restaurant owned and

operated by Haza.3 Haza moved for summary judgment, arguing that Dixon has no evidence

proving that any Wendy’s or Haza employee had actual or constructive knowledge of the alleged

hazard, which is necessary for Dixon to prove his claim.4 Haza’s motion was set to be submitted

to the Court on May 6, 2021.5 Local Rule 7.5 requires that a memorandum in opposition to a

1 R. Doc. 30 (citing R. Doc. 28).

2 R. Doc. 37.

3 R. Doc. 1-1 at 1-2. The parking curbs are also known as wheel stops, parking chocks, curb stops, parking

bumpers, bumper blocks, and parking blocks. They are located at the end of a parking space and usually consist of

concrete slabs.

4 R. Doc. 24-2 at 2.

5 R. Doc. 27. The original submission date was April 8, 2021. R. Doc. 24. The Court continued it to May

6, 2021, after granting plaintiff’s motion to continue. R. Docs. 25; 27.

motion be filed no later than eight days before the noticed submission date, which in this case was

April 28, 2020. Dixon, who is represented by counsel, did not timely file an opposition, whereupon

this Court granted Haza’s motion after determining that it was well-founded.6

Thereafter, Dixon filed a motion for leave to file an untimely memorandum in opposition

to Haza’s motion for summary judgment.7 After considering Haza’s opposition to Dixon’s motion

for leave, which addressed the merits of Dixon’s position as set out in his proposed memorandum

in opposition to Haza’s summary-judgment motion,8 this Court granted Dixon’s motion for leave

permitting him to file the opposition memorandum.9

Dixon also filed the instant motion for relief from the Order granting summary judgment

in Haza’s favor.10 Dixon argues that his attorney inadvertently calendared the wrong due date for

the opposition memorandum and prays that the Court consider the merits of his opposition to

Haza’s motion for summary judgment.11 In opposition, Haza argues that granting Dixon relief

from the Order is futile because he cannot prevail on the merits of his claims as he has no evidence

of constructive notice.12

II. LAW & ANALYSIS

A. Applicable Legal Standard

Invoking Rule 60(b) of the Federal Rules of Civil Procedure, Dixon seeks relief from an

order granting summary judgment and dismissing with prejudice all of his claims. He asserts that

the dismissal resulted from his attorney’s mistake in calendaring the due date of the opposition.

However, no final judgment had yet been entered on the order. A Rule 60(b) motion cannot be

6 Id.

7 R. Doc. 34.

8 R. Doc. 37.

9 R. Doc.

10 R. Doc. 30.

11 R. Doc. 30-1.

12 R. Doc. 37.

filed until a final judgment has been entered. Lambert v. McMahon, 2007 WL 713706, at *1 (5th

Cir. Mar. 6, 2007). Where a motion does not challenge a final judgment, it is considered under

Rule 54(b). See McClendon v. United States, 892 F.3d 775, 781 (5th Cir. 2018). Under Rule

54(b), a district court “is free to reconsider and reverse its decision for any reason it deems

sufficient, even in the absence of new evidence or an intervening change in or clarification of the

substantive law.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017). Unlike motions

to alter or amend a judgment under Rule 59(e), “Rule 54(b)’s approach to the interlocutory

presentation of new arguments as the case evolves can be more flexible, reflecting the inherent

power of the rendering district court to afford such relief from interlocutory judgments as justice

requires.” Id. at 337 (quoting Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015)) (internal

quotation marks omitted). However, the district court must exercise this broad discretion sparingly

to forestall the perpetual reexamination of orders and the resulting burdens and delays. See

Calpecto 1981 v. Marshall Expl., Inc., 989 F.2d 1408, 1414-15 (5th Cir. 1993) (“if the district

court was required to reconsider [an interlocutory order] simply because [the losing party]

belatedly came forward with evidence not submitted prior to the ruling[,] ... the cycle of

reconsideration would be never-ending”); Domain Protection, LLC v. Sea Wasp, LLC, 2019 WL

3933614, at *5 (E.D. Tex. Aug. 20, 2019) (“although a district court may revisit an interlocutory

order on any ground it sees fit, it may also use its discretion to prevent parties from, without

justification, raising new arguments for the first time”) (emphasis in original; alterations and

internal quotation marks omitted); 18B CHARLES A. WRIGHT, ARTHUR R. MILLER, & EDWARD H.

COOPER, FEDERAL PRACTICE AND PROCEDURE § 4478.1 (3d ed. 2019).

B. Summary Judgment Reexamined

Louisiana Civil Code article 2317 provides that “[w]e are responsible, not only for the

damage occasioned by our own act, but for that which is caused by the act of persons for whom

we are answerable, or of the things which we have in our custody.” Article 2317.1 provides that

the owner of a thing is responsible “for damage occasioned by its ruin, vice, or defect, only upon

a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice,

or defect which caused the damage, that the damage could have been prevented by the exercise of

reasonable care, and that he failed to exercise such reasonable care.” La. Civ. Code art. 2317.1.

Article 2322 provides that the owner of a building is “answerable for damages only upon a showing

that he knew or, in the exercise of reasonable care, should have known of the vice or defect which

caused the damage, that the damage could have been prevented by the exercise of reasonable care,

and that he failed to exercise such reasonable care.” Id. art. 2322.

Now having considered Dixon’s opposition to Haza’s motion for summary judgment, the

Court determines that Dixon has not demonstrated that Haza had actual or constructive knowledge

of the alleged protruding rebarb. Dixon argues that the deposition testimony of the store manager,

Cornell Paul, and a photograph of the moved parking slab, raise genuine issues of material fact

regarding constructive notice.13 Paul testified that, on the day of the accident, a Haza employee

inspected the parking lot for hazards but did not see the moved parking slab, and that he assumed

that moving it would leave scuffs in the pavement, but that none were visible.14 The photograph

shows leaves piled up behind the moved parking slab.15

13 R. Doc. 39 at 3-5.

14 Id. (citing R. Docs. 39-1; 39-2).

15 R. Doc. 39-4.

A plaintiff in a Louisiana premises liability claim involving a merchant “must make a

positive showing of the existence of the condition prior to the fall.” Leger v. Wal-Mart La. LLC,

343 F. App’x 953, 2009 WL 2900250, at *1 (5th Cir. Sept. 10, 2009) (quoting White v. Wal-Mart

Stores, Inc., 699 So. 2d 1081, 1084 (La. 1997)); see also Brown v. United States, 2017 WL

3267337, at *2 (E.D. La. Aug. 1, 2017)). The evidence Dixon proffers raises nothing more than

speculation, not genuine issues of material fact, regarding constructive notice. Dixon is making

logical leaps that are not justified by the evidence. Rather than showing that a Haza employee

must have seen the moved parking slab, Paul’s testimony regarding the inspection, after which no

safety issues were reported, tends to show that the parking slab was not out of place at the time of

the inspection, which cuts against constructive notice. Further, Paul is not an expert in the friction

produced by moving concrete and makes an assumption, at counsel’s prompting, that moving it

might cause scuffs in the pavement. This statement is itself conjecture and in no way positive

proof that the parking slab had been out of place for such a substantial period that any hypothetical

scuffs would have eroded. Moreover, the photograph showing leaves piled up behind the moved

parking slab does not indicate that it was out of place for some time but, instead, tends to show

that those leaves were pushed behind the slab whenever it was moved. The photograph is not

positive proof of constructive notice – that is, that the parking slab had been moved for such a

length of time that Haza’s employees should have seen it. In sum, because Dixon has no evidence

of constructive notice, Haza is entitled to summary judgment dismissing his premises liability

claim.

The same holds true for Dixon’s negligence claim under Louisiana Civil Code article 2315.

Dixon has not shown that Haza breached a duty of care and that such breach caused the accident.

See Encalade v. A.H.G. Sols., LLC, 204 So. 3d 661, 668 (La. App. 2016) (owner not liable under

article 2317.1 where it did not have actual or constructive notice of the defective bathroom door

until after the accident). As such, Haza is also entitled to summary judgment dismissing Dixon’s

negligence claim against it.16

III. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Dixon’s motion for relief from judgment (R. Doc. 30) is DENIED.

New Orleans, Louisiana, this 21st day of May, 2020.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE

16 Because Dixon alleges that he fell on a merchant’s premises, his claims are controlled exclusively by La.

R.S. 9:2800.6 (Louisiana’s merchant liability statute), and the Court is not permitted to consider claims under 2315,

2317, and 2317.1, even in the alternative. Brown, 2017 WL 3267337, at *2 n.11 (quoting Guidry v. Murphy Oil USA,

Inc., 2015 WL 5177569, at *4 (M.D. La. Sept. 3, 2015)).