1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

MICHELLE LEAL, et al. ) 

 ) 

 Plaintiff, )

) 

 v. ) CASE No.: 2:13 CV 318 

 ) 

TSA STORES, INC. d/b/a THE SPORTS ) 

AUTHORITY, et al ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

Plaintiff, Michelle Leal (hereafter “Leal”) suffered injuries in a bicycling accident. She 

filed a state court complaint against several defendants including TSA Stores Inc. d/b/a The 

Sports Authority (hereafter “Sports Authority”), Urban Express Assembly LLC (hereafter 

“Urban Express”), Yong Qi Bicycle Industrial Co. (“Yong Qi”), LTD., Go Configure, Inc., and 

Guhlam Thomas (“Thomas”) (referred collectively herein as “Defendants”) alleging that their 

negligence in designing, manufacturing, producing, and assembling the bicycle and/or a design 

defect with the bicycle were responsible for her injuries.1

 The case was then removed to federal 

court. [DE 3]. 

Defendant, Urban Express filed the present Motion for Summary Judgment pursuant to 

Fed. R. Civ. P. 56,2

 asserting that there is no genuine issue of material fact that it either 

assembled or was negligent in the assembly of the bicycle thereby causing the injuries suffered 

 

1

 While the current motion was pending, Defendants East Coast Supply and Go Configure, Inc. have been dismissed 

from the case by court order. See DE 91, 92. 

2

Urban Express originally filed the motion in the Porter County Superior Court pursuant to Ind.Tr.R. 56. Thereafter, 

the case was removed to federal court on the basis of diversity jurisdiction. Under the Erie doctrine, federal courts 

in diversity cases (and any other cases in which state law supplies the rule of decision) apply state “substantive” law 

but federal “procedural” law. E.g., Gasperini v. Center for Humanities, 518 U.S. 415, 427 (1996); Mayer v. Gary 

Partners & Co., 29 F.3d 330 (7th Cir.1994). 
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by Leal. [DE 12]. Plaintiff did not originally oppose the motion but two other defendants did. 

After the Court requested supplemental briefing on the issue of whether the other defendants had 

standing to oppose the motion for summary judgment [DE 52], Plaintiff sought leave to file a 

belated response which the Court granted. [DE 72, 74]. 

For the following reasons, Urban Express’s Motion for Summary Judgment will be 

GRANTED. 

APPLICABLE STANDARD 

Summary judgment is appropriate when the movant shows that there is no genuine dispute as 

to any material fact and that the movant is entitled to judgment as a matter of law. A “material 

fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A] party seeking summary judgment always 

bears the initial responsibility of informing the district court of the basis for its motion, and 

identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the 

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 

S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[T]he burden on the moving party may be discharged by 

‘showing’—that is, pointing out to the district court—that there is an absence of evidence to 

support the nonmoving party's case.” Id. at 325. 

FACTUAL BACKGROUND 

On August 17, 2011, Leal was injured while riding her bicycle, a K2 Breeze, which was 

purchased by Leal’s husband, already assembled, at Sports Authority. [Second Amended 
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Complaint, ¶8]. The bicycle was purchased on July 7, 2011,3 from the Sports Authority store 

located in Merrillville, Indiana. 

According to Leal, while riding the bicycle, the handlebar shifted suddenly causing her to 

fall. [Id. ¶8]. Leal was cycling uphill and put pressure on the handlebars of the bicycle at which 

time the handlebars came loose turning all the way to the left. As a result of the bicycle 

malfunction and the resulting fall, Leal was injured. 

Prior to Leal’s accident, on February 1, 2011, Urban Express entered into a “Delivery, 

Assembly, and Installation Services Agreement (“the Agreement”) with Sports Authority. 

[Affidavit of Arthur Lagrega (“Lagrega Aff” or “Lagrega”), ¶3]. Under the terms of the 

Agreement, when requested, Urban Express provided pickup services at Sports Authority 

locations and delivery, assembly, and installation services as well as swap out services at Sports 

Authority customer locations. [Id]. Equipment covered under the Agreement included bicycles, 

fitness equipment, sporting goods, and grills. [Id. at ¶4.]. 

As it pertained to bicycles, Urban Express did not ship or deliver any bicycles to Sports 

Authority under the Agreement. Rather, Sports Authority was required to place an order with 

Urban Express indicating the equipment Sports Authority needed assembled under the 

Agreement and the quantity of equipment that was required to be assembled. In turn, Urban 

Express arranged to have an independent contractor technician schedule a date to assemble the 

equipment, including bicycles. [Id. at ¶5]. However, under the terms of the Agreement, the 

Sports Authority also had the right to have its own employees assemble bicycles at the Sports 

Authority location. [Id. at ¶7]. 

 

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 There are two different purchase dates in Plaintiff’s brief. See page 4 (“The bicycle at issue was purchased on July 

7, 2011.”); and page 5 (“Urban Express admits that Leal purchased a bicycle on July 27, 2011.”). The difference in 

dates does not have any affect on the outcome of this motion. 
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Lagrega is the President of Urban Express and has held that position at all relevant times 

relating to this lawsuit. According to Lagrega, each time an independent contractor technician 

visits the Sports Authority location to assemble or repair equipment pursuant to the Agreement, 

the technician generates an invoice that logs particular information including: the date of the 

visit, the technician’s name, the particular Sports Authority location, the name of the store 

manager, the serial and model numbers of the equipment being assembled or repaired, and the 

assembly or repair code, Lagrega Aff. ¶8. The invoice contains a signature line for the Sports 

Authority manager and contains the following language, “By signing this invoice I authorize 

payment to the vendor o associate for In-store services rendered. I have verified and completed 

the Bike Quality Checklist and personally ensured that the bikes built today are in ride ready 

condition.” Id.at ¶9. These invoices are generated and maintained as part of Urban Express’s 

ordinary course of business. 

 Lagrega regularly undertakes a review of the invoices. The bicycle involved in this 

matter is a K2 Trine or Breeze bicycle with serial number G100711036 purchased on or around 

July 27, 2011. Lagrega reviewed all invoices from March 6, 2011 through August 1, 2011 for 

the Merrillville, Indiana store where Leal purchased the bicycle but was unable to locate an 

invoice for the assembly or repair of the a K2 Trine or Breeze bicycle with the serial number 

G100711036. Thus, Lagrega does not believe that Urban Express assembled the bicycle Leal 

was riding at the time of her accident. 

 Based upon these facts, Urban Express asserts it is entitled to summary judgment. 

DISCUSSION 

 Leal asserts that she suffered damages as a result of falling from a bicycle that was 

negligently assembled by Urban Express. To prove her negligence claim, Leal must establish 
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three elements, one of which is that the defendant owed a duty of care to her. Purcell v. Old Nat'l 

Bank, 972 N.E.2d 835, 842 (Ind.2012). Absent a duty, there can be no breach and no recovery in 

negligence. Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind.2011). The existence of a legal duty 

owed by one party to another in a negligence case is appropriate for summary judgment, as it is 

generally a pure question of law for the court to decide. Indiana Dep't of Transp. v. 

Howard, 879 N.E.2d 1119, 1122 (Ind.Ct.App.2008); Lee v. GDH, LLC, 2015 WL 291939, 5 

(Ind.Ct.App.,2015)

 In this case, as Urban Express points out, Leal has not set forth any evidence whatsoever, 

that would create a genuine issue of material fact as to whether Urban Express is the party that 

assembled the bicycle let alone that the assembly fell below the standard of care owed to her. 

Urban Express argues that it has produced unopposed affidavit testimony from Lagrega in which 

he avers: (1) Urban Express had an Agreement with the Sports Authority to assemble some, but 

not all equipment, including bicycles; (2) independent contractors acting for Urban Express 

made records in the ordinary course of business identifying the serial and model number of 

bicycles assembled by Urban Express independent contractors for the Merrillville, Indiana store; 

and (3) Urban Express reviewed records for a substantial period of time before the plaintiff 

purchased the bicycle and was injured and has no documentation linking Urban Express to the 

bicycle’s assembly. As a result, Urban Express contends it had no duty to the plaintiff which it 

could have breached since it did not assemble the bicycle. 

 In response, the only affirmative argument made by Leal to support her contention that 

Urban Express owed her a duty is the Agreement itself which, she contends, demonstrates that 

Urban Express must have assembled the bicycle since it was contractually obligated to do so. 

Leal also argues that the absence of records is insufficient proof from which the court could 
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conclude that Urban Express owed no duty to Leal in light of Urban Express’s admission that it 

had the Agreement with the Sports Authority. Third, it asserts that Urban Express did not 

examine enough records or that it failed to examine records in the proper time frame and thus, by 

default, the court should find that Urban Express owed a duty of care to Leal. Finally, she 

argues, that Urban Express has not accounted for “the fact that the bicycle at issue may have 

been assembled for any Sports Authority store other than the Merrillville, Indiana store, and that 

the bicycle was then shipped from another Sports Authority store to the Merrillville store in 

order to meet customer demand or balance existing inventory.” (Resp. p. 5). 

 The problem with all of Leal’s arguments is two-fold. First, to prevail on summary 

judgment, Leal has an obligation to rebut the evidence Urban Express submitted to support its 

proposition that it owed no legal duty to her with competent evidence showing that genuine 

issues of material fact, at the very least, call into question the existence of a legal duty by Urban 

Express and a breach thereof warranting a trial. See Anderson, 477 U.S. at 257 (“To survive 

summary judgment, the nonmovant may not simply rely on the facts alleged in the complaint but 

must instead produce affirmative evidence.”). She has not done so. She has presented absolutely 

no evidence demonstrating that Urban Express assembled the bicycle; she has presented no 

evidence as to when the bicycle was, in fact assembled at all– only that at the time of purchase it 

was assembled; and she has presented no evidence that the contractual relationship she relies 

upon to attempt to establish Urban Express’s duty to her was even in effect at the time the 

bicycle was assembled. Thus, Leal has produced nothing more than speculation that Urban 

Express assembled the bicycle. 

 Second, all of Leal’s arguments about the absence of records or the manner in which 

Urban Express conducted its record search are discovery matters. If Leal believed that Urban 
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Express had not conducted a thorough enough search of its records or that the searches 

conducted were too limited, it could have pursued those avenues during discovery. Moreover, if 

she believed she could not formulate an appropriate response to the pending Motion for 

Summary Judgment, she could have requested a stay of the motion pending additional discovery. 

See Fed.R.Civ. P. 56(d) (permitting the Court to order further discovery). But she did neither.4

 At trial, Leal bears the burden of demonstrating all the elements of negligence including 

the existence of a duty. That said, when the opposing party would have the burden of proof on a 

dispositive issue at trial, the moving party need not produce evidence which negates the 

opponent's claim. See, e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, 

the moving party need only point to matters which demonstrate the absence of a genuine material 

factual issue. See Celotex, 477 U .S. at 32324 (“[W]here the nonmoving party will bear the 

burden of proof at trial on a dispositive issue, a summary judgment motion may properly be 

made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions 

on file.’ ”). Indeed, summary judgment should be entered, 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. See id. at 322. In this case, Leal has altogether failed to set forth evidence, other than 

speculation and conjecture, creating a genuine issue for trial on an essential element of her 

negligence claim. Accordingly, Urban Express’s Motion for Summary Judgment is GRANTED. 

CONCLUSION 

 

4

 In fact, she did not even contest the motion originally until after the Court entered its Order requesting 

supplemental briefs on the issue of whether co-defendants had standing to contest another co-defendants’ 

motion for summary judgment. 
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“Summary judgment is not a discretionary remedy. If the plaintiff lacks enough evidence, 

summary judgment must be granted.” Jones v. Johnson, 26 F.3d 727, 728 (7th Cir.1994), cert. 

granted 513 U.S. 1071, 115 S.Ct. 713, 130 L.Ed.2d 621 (1995). That is precisely the situation 

with respect to the present claim, and the defendant’s motion for summary judgment [DE 12] 

must be granted. 

This Entry does not resolve all claims against all parties. As a result, no partial final 

judgment shall issue at this time. 

Entered this 23rd day of February, 2015. 

s/ William C. Lee 

United States District Court