The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
AYESHA SHABAZZ, : Case No. 1:23-cv-751
Plaintiff, □ Judge Matthew W. McFarland
v
WALMART, INC., et al.,
Defendants.
ORDER AND OPINION
This matter is before the Court on Defendant Walmart, Inc.’s Motion for Summary
Judgment (Doc. 20). Plaintiff has not filed a response in opposition, and the time to do so
has passed. Thus, the matter is ripe for review. For the following reasons, Defendant
Walmart Inc.’s Motion for Summary Judgment (Doc. 20) is GRANTED.
BACKGROUND
On October 9, 2021, Plaintiff Ayesha Shabazz entered a Walmart store in
Cincinnati, Ohio (“Store”). (Shabazz Dep., Doc. 18-1, Pg. ID 116.) After she arrived,
Plaintiff walked almost the full length of a Store aisle when her shopping cart suddenly
ran into a large, lone shelf on the aisle floor. (Id. at Pg. ID 117.) When her shopping cart
hit the shelf on the ground, the shelf “popped” up and hit Plaintiff's knee. (Id. at Pg. ID
117-18.) Plaintiff claims that she has suffered permanent physical injuries as a result of
this incident. (Compl., Doc. 6, 23.)
Plaintiff initially filed suit in Hamilton County Court of Common Pleas on October
2, 2023. (Compl., Doc. 6.) Defendant Walmart, Inc. (“Walmart”) removed the case to this
Court on November 13, 2023. (Notice of Removal, Doc. 1.) Plaintiff brings negligence
claims against Walmart independently, as well as under the doctrine of respondeat
superior. (Compl., Doc. 6, 9 9-25.) Plaintiff also brings subrogation claims against
Defendants Aetna Health Insurance Company (“Aetna”) and Ohio Department of
Medicaid (“Medicaid”). (Id. at {J 26-33.)
On November 1, 2024, Walmart filed a Motion for Summary Judgment (Doc. 20).
On November 11, 2024, Plaintiff's attorneys filed a Motion to Withdraw as Attorneys
(Doc. 21), which this Court granted. (12/12/2024 Notation Order.) In granting the Motion
to Withdraw, this Court advised Plaintiff that she had thirty days to attain new counsel,
and once new counsel had entered an appearance, she had thirty additional days to
respond to Walmart’s Motion for Summary Judgment. (Id.) Plaintiff did not advise the
Court of new counsel within the thirty-day period from the date of the Notation Order,
at which point the clock began running for her response to the Motion. Thirty additional
days have now passed, and Plaintiff has not responded to Walmart’s Motion.
LAW & ANALYSIS
When there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law, the district court shall grant summary judgment.
Fed. R. Civ. P. 56(a). The moving party has the burden to conclusively show that no
genuine issue of material fact exists. Celofex Corp. v. Catrett,477 U.S. 317, 323
(1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). If the moving party
meets that burden, then it becomes the nonmoving party’s responsibility to point to
specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 US. 242,
250 (1986). A court is under no obligation to search the record for genuine issues of
material fact. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996).
Moreover, a “mere scintilla” of evidence in support of the nonmoving party's
position is not enough to avoid summary judgment. Daniels v. Woodside, 396 F.3d 730, 734
(6th Cir. 2005). Rather, to preclude summary judgment, the nonmoving party must put
forward probative evidence on which a jury could reasonably reach a verdict in that
party’s favor. Anderson, 477 U.S. at 251-52; Lansing Dairy, F.3d at 1347. If the
nonmoving party fails to make the necessary showing for an element on which it has the
burden of proof, then the moving party is entitled to summary judgment. Celotex, 477
US. at 323.
Furthermore, the Sixth Circuit’s stance on abandonment of claims is clear: “a
plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in
response to a motion for summary judgment.” Brown v. VHS of Michigan, Inc., 545 F.
App’x 368, 372 (6th Cir. 2013); see also Hicks v. Concorde Career Coll., 449 F. App’x 484, 487
(6th Cir. 2011); Clark v. City of Dublin, 176 F. App’x 522, 524-25 (6th Cir. 2006). And, a
plaintiff's failure to respond to a motion for summary judgment constitutes “forfeiture of
the claims to which the motion is addressed.” Curtis v. Burgess, No. 1:22-CV-266, 2023 WL
5021898, at *2 (W.D. Mich. July 6, 2023). Opposition to the summary judgment motion “is
waived, and dismissal, is appropriate, where the plaintiff fails to respond” to the motion.
Id.; see also Humphrey v. United States Attorney General’s Office, 729 F. App’x 328, 331 (6th
Cir. 2018).
Walmart filed its Motion for Summary Judgment on November 1, 2024. (See Doc.
20.) While Plaintiff would usually have twenty-one days to file a response in opposition,
Plaintiff's attorneys moved to withdraw as counsel on November 11, 2024. (S.D. Ohio
Civ. R. 7.2(a)(2); Motion to Withdraw as Attorneys, Doc. 21.) As such, when the Court
granted that Motion to Withdraw, it provided —in the interests of justice — Plaintiff with
thirty days to attain new counsel, plus an additional thirty days thereafter to respond to
Walmart’s Motion for Summary Judgment. (12/12/2024 Notation Order.) These
deadlines have passed, and Plaintiff has still not filed a response to Walmart’s Motion for
Summary Judgment. By failing to respond, Plaintiff has waived her opposition to the
Motion and granting summary judgment is therefore appropriate.
For the foregoing reasons, the Court ORDERS the following:
1. Walmart’s Motion for Summary Judgment (Doc. 20) is GRANTED;
2. Plaintiff's claims against Walmart are DISMISSED WITH PREJUDICE;
3. Plaintiff's subrogation claims against Aetna and Medicaid are DISMISSED
WITH PREJUDICE;
4. Medicaid’s Crossclaim against Walmart and Aetna (Doc. 8) is DISMISSED AS
MOOT; and
5. This matter is TERMINATED from the Court’s docket.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IO
Weta Heald
By: ‘
JUDGE MATTHEW W. McFARLAND