[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-10524

Non-Argument Calendar

____________________

JANE DELOVSKY, 

Plaintiff-Appellant,

versus

WAL-MART STORES, INC.,

Defendant,

JANE DOE,

WAL-MART STORES EAST, LP, 

Defendants-Appellees.

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2 Opinion of the Court 20-10524

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:18-cv-00207-ELR

____________________

Before WILLIAM PRYOR, Chief Judge, NEWSOM, and ANDERSON, 

Circuit Judges.

PER CURIAM:

Jane Delovsky appeals pro se the summary judgment against 

her complaint about the alleged negligence of Wal-Mart Stores 

East, LP, for failing to maintain its premises in a safe condition, 

negligent maintenance and inspection of a cart escalator, employee 

negligence, and failure to train. Delovsky sustained injuries after 

walking through safety obstruction guards to put her shopping cart 

on a cart escalator. The district court denied Delovsky’s motions to 

subpoena witnesses, to amend her complaint, and to strike the motion for summary judgment against her complaint, and it then 

granted that motion. We affirm.

Delovsky drove to a Walmart store in Chamblee, Georgia, 

to purchase groceries for her Thanksgiving meal. The store had a 

small parking lot level with its main entrance and an underground 

parking garage with separate escalators for customers and for their 

shopping carts. Delovsky parked in the underground garage and 

rode the customer escalator up to the store. 

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After purchasing groceries, Delovsky asked Barbara Hall, a 

Walmart customer host, how to get her shopping cart to the parking garage. Hall told Delovsky about the escalator system and, as 

shown on a store surveillance video recording, Hall accompanied 

Delovsky up to the plastic safety guards. Each safety guard had two 

warning signs. The left guard had signsthat stated “CARTS ONLY” 

and “NO CHILDREN” with an illustration that barred children 

from sitting in the cart. The right guard had signs that stated “NO 

ENTRY” and “STAND CLEAR” with an illustration that barred 

persons from entering the cart escalator.

A surveillance video recording showed that, after Delovsky 

failed one time to push her shopping cart on the cart escalator, she 

walked behind her cart through the safety guards. Hall later testified that she yelled for Delovsky to “turn the cart aloose” and, 

when Delovsky did not respond, she grabbed Delovsky’s jacket, 

yelled “turn the cart aloose” three to four times, and pressed the 

emergency stop button before Delovsky’s cart began its descent. 

The video footage showed Hall stop the cart escalator and Delovsky turn around, walk back through the safety guards, and begin to 

scream while clutching her left arm. Hall directed Delovsky to a 

nearby wall and contacted her assistant manager.

Video footage showed numerous Walmart customers, including a child, using the cart escalator without incident. The footage also showed Brandon Hamilton, a cart pusher for Walmart, inspecting the cart escalator and that twelve customers used the 

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apparatus before Delovsky’s accident, the last of which preceded 

her by less than one minute.

Delovsky, with the assistance of counsel, filed a four-count 

complaint in a Georgia court against Walmart, which promptly removed the action to the district court. Delovsky complained of 

premises liability, negligent maintenance and inspection, employee 

negligence, and failure to train. Delovsky alleged that Walmart was 

negligent in failing to “post signs or instructions reasonably calculated to provide . . . instructions and/or warnings on use of the cart 

escalator”; in “failing to shut down . . . or limit access to the system 

while it was broken or otherwise malfunctioning”; in “us[ing] a system inherently or unreasonably dangerous . . . [without] safety bars 

or mechanisms designed to prevent . . . invitees from falling down 

or onto the cart escalator”; and in “not properly check[ing] shopping carts to insure they were not broken or otherwise incompatible with the cart escalator system.” Delovsky also alleged that she 

fell when the cart escalator “gave way” as she tried to push her cart 

onto it and that she was harmed because “Jane Doe improperly advised/instructed [her] on the use of the cart escalator system and 

. . . failed to hit the ‘Stop button/switch’ timely after [her] fall.”

When deposed, Hamilton testified that the cart escalator 

functioned properly on the day of Delovsky’s accident. Hamilton—

consistent with video surveillance footage—described riding down 

the customer escalator about ten minutes before the incident to 

examine the adjoining cart escalator. Video footage also corroborated Hamilton’s testimony that, after Delovsky’s accident, he put 

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the cart escalator in reverse and removed her cart and that, minutes 

after another employee restarted the apparatus, Walmart customers used the cart escalator without incident.

Hall testified that Delovsky caused her own injuries. Hall recalled instructing Delovsky to push her shopping cart through the 

safety guards and the rail would take the cart down to the parking 

garage. Hall testified that Delovsky walked through the safety 

guards and failed to release her shopping cart despite Hall’s instructions to do so. Hall recounted that she grabbed Delovsky’s jacket 

while pushing the emergency stop button with her right hand, that 

Delovsky released her cart, and that she turned around and walked 

back through the safety guards screaming and holding her left arm. 

Hall also stated—consistent with video footage—that Delovsky 

never fell and walked out of the cart escalator and that the store 

restarted the cart escalator after Delovsky’s accident.

Delovsky testified that she saw two plastic guards in front of 

the entrance to the cart escalator, but she could not recall whether 

the guards bore warning signs. She recalled that Hall told her to 

push her shopping cart onto the cart escalator, that it took several 

attempts to push her cart onto its escalator, that the escalator was 

“broken” and not moving, that she somehow ended up on the apparatus with her cart, and that the escalator started moving after 

she stepped onto it. Delovsky could not recall how she exited the 

cart escalator, only that she was in serious pain once outside the 

escalator. She also testified that she did not fall on the escalator.

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During discovery, Delovsky’s attorney withdrew and, after 

Delovsky elected to represent herself, she twice moved unsuccessfully for issuance of subpoenas duces tecum. The district court denied Delovsky’s first motion that sought records from her former 

attorneys, a video recording of her accident from Walmart, and a 

copy of the police report from the Chamblee Police Department. 

The district court ruled that Delovsky had yet to request the materials using traditional means of discovery and urged her to communicate with Walmart. The district court denied Delovsky’s second motion for subpoenas for “fail[ing] to articulate . . . whom she 

is requesting to subpoena and what relevant evidence she seeks to 

obtain.”

After Walmart moved for summary judgment, Delovsky 

filed motions for leave to amend her complaint to add Hall as a 

defendant and to issue subpoenas to two elevator servicing companies, the Chamblee Police Department, and Walmart. The district 

court denied both of Delovsky’s motions as untimely and also denied her motion to amend as unduly prejudicial to Hall and to 

Walmart.

Delovsky next filed a motion to strike the motion for summary judgment as untimely filed and served, but the district court 

denied her motion. Delovsky argued that Walmart had filed and 

served its motion one day after the deadline for filing dispositive 

motions. Walmart responded that its motion was timely filed and 

served electronically and, with respect to service by mail, it moved 

for a one-day extension of time to complete service of process on 

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Delovsky. See Fed. R. Civ. P. 6(b)(1)(B). The district court found 

that Walmart timely had filed its motion and effectuated electronic 

service, and as to service by mail, the district court granted 

Walmart a one-day extension to complete service on Delovsky. 

The district court entered summary judgment in favor of 

Walmart. The district court ruled that Delovsky’s lack of evidence 

doomed her complaints of premises liability, negligent maintenance or inspection, and failure to properly train. The district court 

also ruled that Delovsky’s complaint for employee negligence and 

respondeat superior failed as a matter of law.

Three standards of review govern this appeal. We review de 

novo the summary judgment in favor of Walmart. See Newcomb 

v. Spring Creek Cooler Inc., 926 F.3d 709, 713 (11th Cir. 2019). We 

review for clear error the finding of fact regarding the timeliness of 

filing and service by Walmart. See United States v. Gupta, 363 F.3d 

1169, 1173 (11th Cir. 2004). We review for abuse of discretion the 

decisions to extend the time for Walmart to effect service of process, see Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 

1325 (11th Cir. 1996), to deny Delovsky leave to amend her pleading, see Laurie v. Ala. Ct. of Crim. Appeals, 256 F.3d 1266, 1274 

(11th Cir. 2001), and to deny her requests for subpoenas, see Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006).

The district court did not err by entering summary judgment in favor of Walmart. Delovsky failed to establish a material 

factual dispute about whether the condition of the premises at 

Walmart or its negligent maintenance or inspection caused her 

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injury because the evidence “quite clearly contradict[ed] . . . [her] 

story” that the cart escalator malfunctioned. See Scott v. Harris, 

550 U.S. 372, 378 (2007). The surveillance video recording, which 

showed customers using the cart escalatorsafely before Hamilton’s 

inspection and then before and after Delovsky’s accident, established that the escalator was maintained and operable and that she 

injured herself by holding onto her cart past the safety guards. Id.

at 378–79. Nor did Delovsky create a material factual dispute about 

whether Walmart could be held liable for its employees’ negligence, their violation of a safety rule or policy, or their lack of training about using the cart escalator or its emergency stop button.

The video recording showed that signs on both plastic guards 

warned against persons entering the cart escalator, that Hall monitored the cart escalator, and that she accompanied Delovsky to the 

cart escalator, promptly stopped the apparatus after Delovsky 

walked through the safety guards, and attended to Delovsky after

her accident. See id. Because there existed “no genuine dispute as 

to any material fact and [Walmart was] entitled to judgment as a 

matter of law,” Fed. R. Civ. P. 56(a), the district court correctly entered summary judgment in the company’s favor. 

We cannot say that the district court clearly erred by accepting the motion of Walmart for summary judgment as timely filed. 

The district court ordered the parties to file dispositive motions 

within 30 days after the close of discovery. Because the district 

court scheduled discovery to end on July 14, 2019, Walmart timely 

filed its motion for summary judgment on August 13, 2019.

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The district court did not abuse its discretion by granting 

Walmart an extension of time to serve its dispositive motion on 

Delovsky by mail. See Fed. R. Civ. P. 6(b)(1)(B). The district court 

correctly took into account “all relevant circumstances . . ., including the danger of prejudice to [Delovsky], the length of delay and 

its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of 

[Walmart], and whether [it] acted in good faith.” Pioneer Inv. 

Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). 

The district court reasonably determined that Delovsky was not 

prejudiced by Walmart mailing its dispositive motion to her one 

day after having timely served her electronically.

The district court reasonably retitled counts two and three 

of Delovsky’s complaint. Delovsky titled count two as “Vicarious 

Liability/Failure to Train,” but the district court accurately retitled 

the count as a claim of “Negligent Maintenance or Inspection” because Delovsky alleged that Walmart was responsible for the “conduct . . . [of] the individuals responsible for inspecting, cleaning, 

and maintaining the cart escalator” and for “the consequences of 

their negligence.” The district court also appropriately retitled 

count three, which Delovsky titled “Negligence of Jane Doe & 

Walmart Respondeat Superior,” as a claim of “Employee Negligence and Respondeat Superior.” That latter title correctly restructured count three to eliminate a claim against Jane Doe, who Delovsky failed timely to move to replace with Hall as defendant, and 

accurately described Delovsky’s claim to hold Walmart responsible 

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for its employee’s alleged negligence in instructing a customer how 

to use and in operating the cart escalator.

The district court did not abuse its discretion by denying Delovsky’s motion to amend her complaint to add Hall as a defendant. Federal Rule of Civil Procedure 15 states that “[t]he [district] 

court should freely give leave when justice so requires,” Fed. R. 

Civ. P. 15(a)(2), but it can deny leave for reasons “such as undue 

delay, bad faith or dilatory motive on the part of the movant,” Foman v. Davis, 371 U.S. 178, 182 (1962). The parties identified Hall 

as the Jane Doe named in Delovsky’s complaint by May 11, 2018. 

Delovsky waited until September 18, 2019, to request leave to 

amend her complaint, and by then the parties had completed discovery and Walmart had moved for summary judgment. The district court reasonably determined that both Hall and Walmart 

would be unfairly prejudiced by Delovsky’s delay.

The district court also did not abuse its discretion by denying 

Delovsky’s three motions to subpoena witnesses. Delovsky filed 

her first motion for subpoenas without attempting to obtain the 

materials she sought by discovery request. See Fed. R. Civ. P. 

45(d)(1) (“A party . . . responsible for issuing and serving a subpoena 

must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”). Delovsky had yet to 

ask that her attorneys produce records she needed or that law enforcement and Walmart provide her copies of the police report and 

of video recordings of her accident. Delovsky’s second motion 

failed to identify whom to subpoena or what evidence she wanted. 

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And Delovsky’s third motion came too late after the close of discovery and in response to the motion for summary judgment. See 

Estep v. United States, 251 F.2d 579, 582 (5th Cir. 1958) (“[D]iscretion . . . [rests with the district] court to refuse to subpoena witnesses for an indigent party in a civil proceeding” “to prevent abuse 

of its process.”).

We AFFIRM the summary judgment in favor of Walmart.

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