[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 21-13039

Non-Argument Calendar

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BRENDA HERNANDEZ, 

Plaintiff-Appellant,

versus

SAM’S EAST, INC., 

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:20-cv-61648-RAR

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2 Opinion of the Court 21-13039

Before GRANT, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM:

Brenda Hernandez appeals the district court’s grant of summary judgment to defendant Sam’s East in her personal injury lawsuit. On appeal, Hernandez first argues that the district court 

abused its discretion when it failed to afford her an adequate opportunity for discovery. Second, she argues that the court erred in 

granting the motion because there existed a genuine issue of material fact. Third, she argues that the court abused its discretion when 

it denied her Rule 59(e) motion challenging that ruling.1 

Because we write only for the parties who are already familiar with the facts and proceedings in the case, we recite them only 

as necessary to explain our decisions.

Addressing initially Hernandez’s second argument on appeal, we conclude that the district court correctly held that Hernandez has “failed to present any evidence, either direct or circumstantial, that would give rise to an inference that a foreign substance was on the floor long enough to charge Sam’s East with constructive knowledge of its presence.” D.C. Order, Doc. 57, at 12. 

Our careful review of the record evidence supports the district 

1 Hernandez also argues that her treating physician is not subject to disclosure requirements under Federal Rule of Civil Procedure 26(a)(2)(B). Because the district court did not rule on that issue, we decline to rule on it in 

the first instance.

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21-13039 Opinion of the Court 3

court’s conclusion. There is no evidence at all indicating how long 

the foreign substance was on the floor before Hernandez fell. And 

there is evidence that there was no foreign substance on the floor 

at the relevant spot ten minutes before plaintiff fell. That is, employee Johnson’s declaration and the closed-circuit television footage is evidence that there was no such foreign substance just ten 

minutes before plaintiff fell. Johnson attested in his declaration 

that he “inspected” that very area ten minutes before. And the 

video footage confirms that ten minutes before the fall, Johnson is 

seen passing through that very area—pulling a cart such that he 

was walking in the direction of the spot where plaintiff fell, facing 

in that direction with an unobstructed view because he was pulling 

the cart from the front. Although the video does not confirm that 

Johnson carefully inspected the very spot where plaintiff fell, it does 

support his assertion that he was inspecting as he walked, because 

the video does show that he briefly stopped and picked up a produce bag which was on the floor. More significant than Johnson’s 

declaration and the video is the fact that there is no evidence at all 

that the foreign substance on which plaintiff fell was on the floor 

for more than ten minutes. With respect to Hernandez’s testimony 

that, immediately after her fall, she noticed some footprints or cart 

tracks in the area, we agree with the district court: under the relevant Florida case law, this testimony is not enough—by itself—to 

warrant finding that a foreign substance had been on the floor for 

an extended time. There being no evidence that a foreign substance was on the floor for a sufficient time to impute constructive 

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4 Opinion of the Court 21-13039

knowledge to defendant, the district court did not err in granting 

summary judgment. 

Hernandez’s first, and primary, argument on appeal is that 

the district court abused its discretion in failing to afford plaintiff a 

fair opportunity for discovery. Hernandez does suggest that there 

might have been some ambiguity in the district court’s discovery 

order dated December 16, 2020, which may have contributed to 

confusion and difficulties with respect to discovery from then until 

February 9, 2021. However, on February 9, 2021, the district court 

clarified that discovery would extend until March 31, 2021—the 

date which the parties had agreed should be the discovery deadline. 

Thereafter—i.e., after February 9, 2021—there is no suggestion 

that defendant was not fully cooperative with plaintiff’s discovery. 

And there is no evidence that plaintiff was not able to accomplish 

such discovery as was appropriate within that extended discovery 

period. The district court did not grant defendant’s motion for 

summary judgment until April 26, 2021, almost a full month after 

the extended March 31, 2021, discovery deadline. Before the April 

26, 2021, final judgment, Hernandez never asked the district court 

for leave to file a supplemental brief in opposition to summary 

judgment, to elaborate upon the discovery accomplished during 

the extended discovery period. And there is no indication that the 

district court failed to give full consideration to all of the evidence 

in the record, including that adduced through the extended discovery ending March 31, 2021. In sum, we cannot conclude that the 

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21-13039 Opinion of the Court 5

district court abused its broad discretion with respect to discovery 

matters.2

For the foregoing reasons, the judgment of the district court 

is

AFFIRMED.

2 We reject summarily Hernandez’s challenge to the district court’s denial of her Rule 59(e) motion. As the district court held, it merely sought to 

relitigate old matters or sought to argue matters that could have been argued 

before final judgment. 

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