IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-31041

Summary Calendar

MARSHA R. BEVERLY,

Plaintiff–Appellant

v.

WAL-MART STORES, INCORPORATED; WAL-MART LOUISIANA, LIMITED

LIABILITY CORPORATION,

Defendants–Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:07–CV–560

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

Plaintiff–Appellant Marsha R. Beverly (“Beverly”) brought suit against

Defendants–Appellees Wal-Mart Stores, Inc. and Wal-Mart Louisiana, L.L.C.

(“Wal-Mart”) after injuring herself in a Wal-Mart store. After the case was

removed from state court based on diversity of citizenship, the federal district

court granted summary judgment for Wal-Mart and then denied Beverly’s

motion for reconsideration filed under FED. R. CIV. P. 59(e). We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

June 15, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 10-31041

I

This case arises out of the personal injury Beverly sustained on July 21,

2006, while shopping at a Wal-Mart in East Baton Rouge, Louisiana. That day,

Beverly and her daughter walked into Wal-Mart (Store #839) and proceeded

through the store’s middle aisle, whereupon Beverly “slipped and fell on a puddle

of unidentified clear liquid” that may have leaked from a display bin of baby

soap. Beverly brought suit against Wal-Mart in state court, seeking damages for

her injuries. Beverly’s negligence claim alleged that the clear liquid puddle

constituted a hazardous condition that Wal-Mart knew of, or should have known

of, and that Wal-Mart allowed the puddle to remain on the floor for an

unreasonable period of time despite knowing of the condition. Wal-Mart

removed the matter to federal district court based on the parties’ diversity of

citizenship.

The court’s scheduling order required that “[a]ll fact discovery shall be

completed . . . by May 30, 2008.” On March 11, twelve weeks before the

discovery deadline, Wal-Mart moved for summary judgment; Beverly did not file

a response. In light of Beverly’s failure to file a memorandum in opposition, the

district court deemed Wal-Mart’s summary judgment motion to be unopposed,

and, after reviewing the record, found that no genuine issues of material fact

existed on Beverly’s negligence claim. The court granted summary judgment for

Wal-Mart accordingly.

Eight days later, Beverly moved the district court to reconsider its

summary judgment ruling, invoking FED. R. CIV. P. 59(e). In addition to her

reconsideration request, Beverly submitted—for the first time— a memorandum

opposing Wal-Mart’s motion for summary judgment, with several supporting

documents attached. One of these was an affidavit from Beverly’s daughter,

Latisha Flowers, who was present at the time of the accident.

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The district court denied Beverly’s reconsideration request, finding that

her motion failed to satisfy any of the requirements for obtaining relief under

Rule 59(e). In addition, the court indicated that it had reviewed Beverly’s

memorandum in opposition and supporting documents, and found that Beverly

still had not shown the existence of any disputed issues of material fact on her

negligence claim.

Beverly timely appealed and now argues that: (i) the district court should

have afforded her additional time to conduct discovery before ruling on WalMart’s summary judgment motion; and (ii) the district court erred in denying

Beverly’s reconsideration request in light of the documents she attached to her

memorandum opposing Wal-Mart’s motion for summary judgment.

II

We review the district court’s decision to limit discovery for abuse of

discretion. See Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 444 (5th Cir.

2001). “If it reasonably appears that further discovery would not produce

evidence creating a genuine issue of material fact, the district court’s preclusion

of further discovery prior to entering summary judgment is not an abuse of

discretion.” Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992

F.2d 1398, 1401 (5th Cir. 1992) (citations omitted).

In contrast, we review the district court’s denial of Beverly’s motion for

reconsideration de novo. See Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324

(5th Cir. 1994). Where a party seeking reconsideration under FED. R. CIV. P.

59(e) attaches new materials to its motion for reconsideration that were not

presented to the district court when the court initially ruled on the motion for

summary judgment, the district court may consider the new materials at its

discretion. See Fields v. City of S. Houston, 922 F.2d 1183, 1188 (5th Cir. 1991).

We review the court’s decision on whether to consider the new materials for

abuse of discretion. Id. We review the actual challenge to the district court’s

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summary judgment de novo, however, because that determination is an issue of

law. Id.

A

At the outset, we note that Beverly’s brief concedes, in several places, her

inability to establish a genuine dispute over the material facts essential to her

negligence claim. See Appellant’s Br. at iii, 6, 11, and 14. Ordinarily, this

failure of proof would prove fatal. See Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986) (“[A] complete failure of proof concerning an essential element of the

nonmoving party’s cause necessarily renders all other facts immaterial.”). But

Beverly argues that summary judgment was improper, nonetheless, because she

made a sufficient showing of why additional discovery was necessary such that

the district court should have allowed her more time for discovery before ruling

on Wal-Mart’s summary judgment motion.

In considering a motion for summary judgment, the district court has

discretion to, inter alia, defer ruling on the motion or allow the nonmoving party

additional time to obtain further discovery if the nonmovant “shows by affidavit

or declaration that, for specified reasons, it cannot present facts essential to

justify its opposition.” FED. R. CIV. P. 56(d). We have observed that Rule 56(d)

motions are generally favored and should be liberally granted. See Int’l

Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1267 (5th Cir. 1991). To obtain a

continuance of a motion for summary judgment for discovery purposes, however,

“a party must set forth some statement to the court indicating why additional

discovery is necessary and ‘how additional discovery will create a genuine issue

of material fact.’” Canady, 240 F.3d at 445 (citing Leatherman v. Tarrant Cnty.

Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1395 (5th Cir.

1994)).

Here, Beverly contends that she needed additional time to locate and

depose two former Wal-Mart employees, Brian Zeno and Kiffany Henderson,

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both of whom had either investigated or had knowledge relating to her accident.

See Appellant’s Br. at 9–11, 13. Beverly also claims that she needed additional

time to depose those members of the Wal-Mart day maintenance crew who were

working at Store #839 in July 2006. See Appellant’s Br. at 14. We find these

contentions unavailing.

Beverly fails to explain what testimony, if any, Henderson or the members

of the day maintenance crew would have provided that would have justified the

district court in suspending decision on the summary judgment motion, or that

would have created a genuine issue for trial. Her conclusory assertion that “she

was unable to present facts essential to defend against” Wal-Mart’s summary

judgment motion is without foundation.

With respect to Brian Zeno, the assistant manager who investigated the

accident, Beverly speculates that “she expected that Brian Zeno would be able to

testify to the size of the puddle of liquid, its consistency and appearance, and

possibly identify the substance itself.” Appellant’s Br. at 13 (emphasis added).

Such a claim, without more, is insufficient to show an abuse of discretion. See

Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 1123 (5th Cir.

1988) (per curiam) (“A claim that further discovery or a trial might reveal facts

which the plaintiff is currently unaware of is insufficient to defeat [a summary

judgment] motion.”). Moreover, Beverly failed to tell the district court what

progress, if any, she had made in locating Zeno, which could have been helpful

in assessing the reasonableness of any further delay. And lastly, as Wal-Mart

correctly argues, Beverly’s belief that Zeno could identify the clear liquid

substance at issue has no bearing on the issue of notice (i.e., whether Wal-Mart

knew, actually or constructively, that the puddle was on the floor for some period

of time before Beverly’s fall).

Beverly has not shown that additional discovery was necessary or would

have created a genuine issue of material fact for trial. See Canady, 240 F.3d at

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445. Based on these facts, we conclude that the district court did not abuse its

discretion in denying Beverly additional time to conduct further discovery and

ruling on Wal-Mart’s summary judgment motion as it did.

B

Beverly also contends that the district court erred in denying her motion

for reconsideration in light of the documents she attached to her memorandum

opposing Wal-Mart’s summary judgment request.

In Louisiana, merchants are required to exercise reasonable care to keep

their premises in safe condition for those who enter. See LA. R. S. 9:2800.6(A).

This duty, however, does not impose absolute liability on a merchant whenever

an accident happens. See Pena v. Delchamps, Inc., 960 So.2d 988, 991 (La. Ct.

App. 2007). To prove a negligence claim against a merchant for damages as a

result of an injury, death, or other loss sustained because of a fall due to a

condition existing on the merchant’s premises, the claimant must show that:

(1) The condition presented an unreasonable risk of harm to the

claimant and that risk of harm was reasonably foreseeable;

(2) The merchant either created or had actual or constructive

notice of the condition which caused the damage, prior to the

occurrence; and

(3) The merchant failed to exercise reasonable care.

LA. R. S. 9:2800.6(B) (emphasis added). The claimant must satisfy all three

elements to make out a prima facie negligence claim and withstand summary

dismissal. Id. Here, Beverly does not claim that Wal-Mart had actual notice of

the puddle that caused her injury; her claim turns on whether Wal-Mart had

constructive notice of the condition.

The Louisiana Supreme Court has repeatedly considered the issue of

constructive notice as defined by statute, observing that such notice plainly

includes a temporal element. See, e.g., White v. Wal-Mart Stores, 699 So.2d

1081, 1084–85 (La. 1997) (“A claimant who simply shows that the condition

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existed without an additional showing that the condition existed for some time

before the fall has not carried the burden of proving constructive notice as

mandated by the statute. Though the time period need not be specific in

minutes or hours, constructive notice requires that the claimant prove the

condition existed for some time period prior to the fall.”); see also Kennedy v.

Wal-Mart Stores, Inc., 733 So.2d 1188, 1191 (La. 1999) (“[P]laintiff presented

absolutely no evidence as to the length of time the puddle was on the floor before

his accident. Therefore, plaintiff did not carry his burden of proving Wal-Mart’s

constructive knowledge of the condition.”).

The record contains nothing by which to infer that Wal-Mart was on

constructive notice of the puddle that caused Beverly’s fall. In her deposition,

Beverly described slipping on a clear liquid substance that included dirt specks

from where her shoes had passed through; she was unable to say how long the

liquid had been on the floor otherwise. Elsewhere, Beverly had estimated that

the puddle was approximately the size of a dinner saucer. Beverly’s daughter,

Latisha Flowers, provided an affidavit in which she described watching a janitor

cleaning up the puddle and seeing “a liquid substance on his paper towel.” And

lastly, Brian Zeno’s incident report described the puddle as “something smered

[sic] on the floor.” In essence, Beverly presented no evidence that the liquid was

on the floor for any length of time, and the totality of evidence set out above falls

far short of carrying the burden of proof on the element of constructive notice.

Because Beverly has the burden of proving all three elements as required by LA.

R. S. 9:8200.6(B), her failure to prove the second, temporal element is fatal to

her negligence claim.

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III

For the foregoing reasons, the district court’s grant of summary

judgment for Wal-Mart, and the court’s denial of Beverly’s motion for

reconsideration of judgment, are AFFIRMED.

1

Beverly argues alternatively that if her case proceeds to trial, she may be entitled to 1

an instruction regarding Wal-Mart’s alleged spoilation of evidence. We have considered this

contention and find it to be without merit. 

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