### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 30746 Summary Calendar

BRENDA ADAMS,

Plaintiff

– Appellant

v. DOLGENCORP, L

. L

. C

. , Defendant

– Appellee

Appeal from the United States District Court for the Middle District of Louisiana U.S.D.C. No. 3:11

- CV

- 784

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges

. PER CURIAM: * Brenda Adams appeals the district court’s grant of summary judgment to Dolgencorp, L

. L

. C

. (“Dollar General”) for injuries she suffered after slipping

on spilled lotion and falling in a Dollar General store. We AFFIRM. FACTUAL AND PROCEDURAL BACKGROUND In May 2011, Brenda Adams visited a Dollar General store in Baton Rouge, Louisiana to purc hase various items

. The store opened at

* Pursuant to 5 TH C IR . R. 47.5, the court has deter mined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 24, 2014 Lyle W. Cayce Clerk Case: 13-30746 Document: 00512570900 Page: 1 Date Filed: 03/24/2014No. 13

- 30746 approximately 8:00 a.m. and Adams arrived between 9:00 and 9:30 a.m

. Adams alleges after turning a corner from one aisle to another , she slipped on a fluid substance later determin ed to be lotion. She claims the r esulting fall caused injuries to her wrists, shoulders, and knees. She originally brought this suit in Louisiana state court

. Dollar General removed the case to t he United States District Court for the Middle District of
Louisiana pursuant to the court’ s diversity jurisdiction

. Throughout the course of the litigation, the parties disputed the relevance and availability of the security camera footage taken the day Adams was injured in the store. Pursuant to company policy, once a person has been injured in the store, Dollar General copies and preserves security camera footage from thirty seconds before the injured person entered the store and ending thirty se conds after that person left . Adams rests some of her argument on the preserved and existing footage, but she also has arguments related to unavailable footage. The district court granted summary judgment to Dollar General . In ad dition, the district
court three times denied Adams leave to amend her complaint to add clai m s of

sp oliation of evidence against individual employees and later against Dollar General for not maintaining all of the security camera footage Adams wished to review. Adams appeals. DISCUSSION We review a district court’s grant of summary judgment de novo

. Summary judgment is proper “if the movant shows there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists only if “a reasonable jury could return a verdict for the nonmoving party.” An derson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A district court’ s decision to deny a motion for leave to amend is reviewed for an abuse of discretion. S&W Enter., L.L.C. v. South Trust Bank of Alabama, NA , 315 F.3d 533, 535 (5th Cir. 2003). 2 Case: 13-30746 Document: 00512570900 Page: 2 Date Filed: 03/24/2014No. 13

- 30746
A. Negl igence To prevail in a negligence claim under Louisiana law against Dollar General , Adams must prove : (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable. (2) The merchant either create d or had actual or constructive notice of the condition which caused the damage, prior to the

occurrence. (3) The merchant failed to exercise reasonable care.

L A

. R EV

. S TAT . § 9: 2800.6(B).

“Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

Id

. § 9:2800.6(C)(1).
The Louisiana Supreme Court has interpreted this statute to m ean that the plaintiff has the burden of showing the dangerous co ndition existed for some discrete period of time ; it is not enough simply to show that the condition existed before the plaintiff’s injury. White v. Wal

- Mart Stores, Inc. , 699 So. 2d 1081, 1 084 (La. 1997). The summary judgment evidence consisted primarily of the testimony of Yolanda Hunter, a Dollar General employee who was working in the immediate vicinity of Adams’ fall , and the security camera footage partially showing the area near whe re Adams slipped and fell

. The footage does not show the portion of the floor where the lotion spilled, nor does it actually show the spilled lotion. Hunter stated that she inspected all of the aisles and opened the store before 8:00 a.m. , at which time there was no lotion on the floor. 3 Case: 13-30746 Document: 00512570900 Page: 3 Date Filed: 03/24/2014No. 13

- 30746 Further, she stated she was working very near the area where Adams fe ll and that she was not aware of the spilled lotion until she and another employee helped Adams to her feet. Adams argues that the presence of Hunter and other Dollar General employees in the immediate vicinity of the spilled lotion is enough to create a genuine issue of material fact as to whether Dollar General had actual or constructive notice and as to whether those employees were exercising the

rea sonabl e care required under Section 9: 2800.6(C)(1)

. She further arg ues that the security camera footage showing Adams walking to the aisle where she was injured indicates the lotion must have been on the floor for long enough
to be discovered

. Doll ar General argues this is not enough to show actual or constructive notice, because the “presence of an employee . . . in the vicinity in which the condition exists” is not enough to support a finding of constructive notice , “unless it is shown that the emplo yee knew, or in the exercise of reasonable care should have known, of the condition

. ” See L A

. R EV

. S TAT . § 9: 2800.6(C)(1). Dollar General further argues that the security camera footage does not actually show the area of the flo or where the lotion was sp illed, but that even if it did, footage merely showing the presence of the condition is not enough to show it was there long enough to be discovered. We agree. Adams’ argument that the employees’ presence in the immediate vicinity of the spilled lotion gives rise to an inference of constructive notice fails under the plain language of Section 9:2800.6(C)(1). She further failed to present any evidence of how or why the lotion was spilled, much less any showing that Hunter or any other Dollar General empl oyee were exercising less than reasonable care in not discovering it. See id

. With respect to Adams’ argument that the available security camera footage should give rise to an inference that the lotion was on the floor long enough to be discovered, we fi nd one of our
4 Case: 13-30746 Document: 00512570900 Page: 4 Date Filed: 03/24/2014No. 13

- 30746 unpublished opinions instructive. See Taylor v. Wal

- Mart Stores , 464 F. App’x 337 (5th Cir. 2012). In Taylor , security camera footage showing a particula r area of a store, which captured a time period of one hour prior to the plaintiff’s fa ll, revealed that one person had shuffled past the allegedly wet portion of the floor. Id. at 338

- 39. We noted that the footage did not clearly show any liquid on the floor , but that it did show numerous other individuals passing through the area without incident. Id. “M ere speculation or suggestion is not sufficient to meet this burden, and courts will not infer constructive notice for purposes of summary judgment where the plaintiff’s allegations are no more likely than any other potential scenario.” Id. at 339 ( quoting Bagley v. Albertsons, Inc. , 492 F.3d 328, 330 (5th Cir. 2007)). We accept that analysis and find it to be applicable here. Here, where the footage does not show the substance nor the area of the floor on which the substance was spilled, we conclude the temporal inference Adams seeks to draw from the footage would be inappropriate. See id

. Adams has failed to produce evidence showing Dollar General had actual or
constructive noti ce of the spilled lotion or any evidence showing when or how the lotion was spilled. We conclude t he district court did not err by granting summary judgment to Dollar General on Adams’ negligence claim

. B. Denial of Leave to Amend Adams filed three separat e motions for leave t o amend her complaint. The first two were attempt s to add a spoliation of evidence claim against
individual employees as defendants. The third sought to add the claim of spoliation of evidence against Dollar General due to the securit y camera footage preservation policy and because it no longer had custody of th e lotion bottle

. Adams argues that Dollar General’s footage retention policy resulted in the deletion of video that would have shown when and how the lotion was spilled . If sh e had the now

- deleted footage, Adams argues, she could bear her 5 Case: 13-30746 Document: 00512570900 Page: 5 Date Filed: 03/24/2014No. 13

- 30746 burden of showing enough passage of time to support her claim of constructive
notice. The first motion was denied without prejudice for failure to allege all the elements of spoliation again st individual defendants , but not Dollar General

. T he second was denied with prejudice for substantially the same reasons

– but against different individual defendants

– and the additional reason that higher scrutiny is applied to amendments that would de stroy complete diversity due to the Louisiana residency of the added individual defendants . The third sought to bring the spoliation of evidence against Dollar General and was denied because it was filed ten months after the deadline for amended pleadings in the scheduling order and the district court concluded it failed t o meet the “good cause” standard for alteri ng scheduling orders. See F ED

. R. C IV

. P . 16

. In Louisiana, the “tort of spoliation of evidence provides a cause of action for an intentional destruction of evidence carried out for the purpose of depriving an opposing party of its use.” Burge v. St. Tammany Parish , 336 F.3d 363, 374 (5th Cir. 2003). In her first two amended complaints, Adams alleges only that various individual defendants permitted important evidence to be destroyed. Neither of Adams’ first two amended complaints allege facts showing any individual defendant intentionally destroyed the footage “for the purpose of depriving [Adams] of its use. ” See id. We conclude the district court did not abuse its discretion by denying Adams’ first two motions for leave to amend her complaint, since both proposed amendments fail to properly stat e a claim for spoliation. Adams filed her third amended complaint on February 15, 2013

– nearly ten months after the scheduling order’s April 25, 2012 deadline for amended pleadings. Adam s then alleged spoliation and impairment of a civil claim against Dollar General, after having not included it in her previous two 6 Case: 13-30746 Document: 00512570900 Page: 6 Date Filed: 03/24/2014No. 13

- 30746 amended pleadings. The district court denied this motion because Adams could not show “good cause” for her failure to assert these claims within the deadlines set by the scheduling order. S ee F ED

. R. C IV

. P . 16. The district court applied the four

- factor test we used in R eliance Ins. Co. v. La. Land & Exp. Co.

. See 110 F. 3d 253, 257 (5th Cir. 1997). The four factors are: “ ( 1) the explanation for the failure to [ add two claims against Dol lar General ]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a cont inuance to cure such prejudice.” Id. The district court applied these factors, concluding only the second factor weighe d in Adams’ favor. The district court determined Adams was aware of what footage was available and what footage was not well before the deadline; the defendant would be prejudiced by having to undertake yet more discovery ; and a continuance would unnecessarily delay the resolution of the litigation . The district court did not abuse its disc retion by denying Adams’ third motion based on these conclusions. AFFIRMED.

7 Case: 13-30746 Document: 00512570900 Page: 7 Date Filed: 03/24/2014