Braud v. Inter-Con Security Systems, Inc. et al, No. 2:2016cv06770 - Document 9 (E.D. La. 2016)

Court Description: ORDER and REASONS granting 6 Motion to Dismiss for Failure to State a Claim. Party Inter-Con Security Systems Inc. dismissed. Signed by Judge Sarah S. Vance on 9/9/2016. (mmm)

Download PDF
Braud v. Inter-Con Security Systems, Inc. et al Doc. 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA BRENDA BRAUD CIVIL ACTION VERSUS NO. 16-6770 INTER-CON SECURITY SYSTEMS, INC. ET AL. SECTION “R” (5) ORD ER AN D REASON S Defendant Inter-Con Security System s, Inc. m oves for sum m ary judgm ent under Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Braud does not oppose the m otion. Because there is no dispute of m aterial fact that plaintiff’s fall occurred m ore than a year before she com menced her lawsuit, the Court grants the m otion for sum m ary judgment. I. BACKGROU N D This is a personal injury case arising from a slip and fall at a building. Defendant Inter-Con is the custodian of the building. Plaintiff’s com plaint alleges that while visiting the property on March 11, 20 15, she slipped on a rug that Inter-Con negligently placed on wet steps. 1 Braud alleges that when 1 R. Doc. 1-1 at 3. Dockets.Justia.com she stepped on the rug, the rug slipped out from under her and she fell down the stairs. 2 As a result of the fall, Braud alleges injuries to her left arm and ulnar nerve which required treatment. 3 Braud alleges that Inter-Con’s negligence was the sole and proxim ate cause of her injuries. 4 Braud filed this lawsuit in the 21st J udicial District Court for the Parish of Tangipahoa, Louisiana on March 8, 20 16. 5 On May 20 , 20 16, defendant filed its notice of rem oval and rem oved the case from Louisiana state court to this Court. 6 On J une 24, 20 16, defendant filed a 12(b)(6) m otion to dism iss. 7 Because defendant’s m otion asked the Court to consider m atters beyond the pleadings, this Court converted defendant’s 12(b)(6) m otion into a m otion for sum m ary judgment on August 23, 20 16. 8 In accordance with the procedural safeguards of Rule 56, the Court ordered Braud to com e forward with evidence in opposition to defendant’s m otion for sum m ary judgm ent within ten days. Braud has not responded. 2 3 4 5 6 7 8 Id. at 4. Id. Id. at 5. Id. at 3. R. Doc. 1 at 1. R. Doc. 6. R. Doc. 8. 2 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398– 99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ultim ate or conclusory facts and conclusions of law are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. If the dispositive issue is one on which the m ovant will bear the burden of proof at trial, the m ovant “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int'l Shortstop, Inc. v. Rally 's, Inc., 939 F.2d 1257, 1264– 65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with 3 evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party's evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). 4 III. D ISCU SSION In a diversity action, the prescriptive period of the forum state applies. Orleans Parish School Board v. Asbestos Corp. Ltd., 114 F.3d 66, 68 (5th Cir. 1997). Under Louisiana law, delictual actions, such as this, are subject to a one-year prescriptive period. See La. Civ. Code. art. 3492; Lehm ann v. GE Global Ins. Holding Corp., 524 F.3d 621, 626-27 (5th Cir. 20 0 8). The period begins to run from the day injury or dam age is sustained. La. Civ. Code. art. 3492. The defendant bears the burden of proof that a claim has been prescribed. See Eldredge v. Martin Marietta Corp., 20 7 F.3d 737, 743 (5th Cir. 20 0 0 ). However, “[i]f the defendant proves that one year has passed between the tortious acts and the filing of the lawsuit, then the burden shifts to the plaintiff to prove an exception to prescription.” Id. Because plaintiff has not opposed defendant’s m otion, the Court need only determ ine whether defendant has shown that one year passed between the tortious acts and the filing of the lawsuit. In support of its m otion for sum m ary judgm ent, defendant argues that, contrary to what is alleged in plaintiff’s com plaint, plaintiff’s fall actually occurred on March 4, 20 15—m ore than one year before plaintiff filed her com plaint—not March 11. 9 9 To establish the date of the fall, defendant R. Doc. 6-1 at 1. 5 subm its affidavits of m ultiple people that attest that they were notified of the fall on or about March 4, and copies of em ails that corroborate those attestations. The evidence subm itted includes: • • • • • The affidavit of Natalie Griffith, who is counsel for defendant and was working in that capacity when the alleged fall occurred. Griffith attests that on March 4, 20 15, she received an em ail from Ashley Sim m ons, an Inter-Con employee, notifying her that Braud fell earlier that day. 10 The affidavit of J oyce Brown, who is em ployed in the Claim s Department of Sullivan Curtis Monroe, a risk m anagement insurance firm who m anages risk and places insurance for Inter-Con. Brown attests that on March 4, 20 15, she received an em ail from Natalie Griffiths, notifying Brown of Braud’s alleged fall. 11 A copy of a fax sent from Brown to a third party claim s adm inistrator for handling, dated March 5, 20 15. 12 The affidavit of Beezie Landry, who is em ployed as a sales advisor for Stirling Properties and was representing the owner of the property where the fall occurred at the tim e of the alleged fall. Landry attests that Braud toured the property on March 4, 20 15, and em ailed him after to confirm the tour and request additional inform ation. 13 Copies of the em ails referred to in the Griffith, Brown and Landry affidavits. 14 To sum m arize, defendant subm its the affidavits of two people attesting that they were notified of the alleged fall on March 4, 20 15, and the affidavit 10 R. Doc. 6-2 at 1. R. Doc. 6-3 at 1. 12 Id. at 5. 13 R. Doc. 6-4 at 1 (Landry affidavit). 14 R. Doc. 6-2 at 3-4 (Sim m ons em ail); R. Doc. 6-3 at 3 (Griffith em ail); R. Doc. 6-4 at 2-3 (Braud email). 6 11 of another who attests that Braud’s tour of the property occurred on March 4, 20 15. Additionally, defendant subm its copies of em ails corroborating the statements in the affidavits as well as a copy of an insurance claim filed on March 5, 20 15. Plaintiff Braud has not subm itted any evidence suggesting that the fall actually occurred on or after March 8, 20 15. Accordingly, the Court finds that defendant has m et its burden in establishing that a year passed between the alleged tortious acts and the filing of this lawsuit. Braud’s claim has prescribed under Louisiana law. IV. CON CLU SION For the foregoing reasons, the Court finds that plaintiff’s claim has prescribed. The Court hereby GRANTS defendant’s m otion for sum m ary judgm ent. 9th New Orleans, Louisiana, this _ _ _ _ _ day of Septem ber. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.