United States District Court, N.D. Mississippi, Oxford Division
OPINION AND ORDER GRANTING SUMMARY JUDGMENT
M. BROWN, UNITED STATES DISTRICT JUDGE
negligence action brought by Jenny Stafford is before the
Court on the motions for summary judgment of DeSoto
Acquisition and Development Corporation; Memphis Street
Café, LLC; and Natalia Gudkovskaya. Doc. #51; Doc.
#53. Also before the Court is the motion in limine of Memphis
Street Café and Gudkovskaya, Doc. #66, joined by
DeSoto Acquisition and Development Corporation.
Rule 56 of the Federal Rules of Civil Procedure,
“[s]ummary judgment is appropriate when there are no
genuine issues as to any material facts, and the moving party
is entitled to judgment as a matter of law.”
Norwegian Bulk Transp. A/S v. Int'l Marine
Terminals P'ship, 520 F.3d 409, 411 (5th
Cir. 2008) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986)). To award summary judgment,
“[a] court must be satisfied that no reasonable trier
of fact could find for the nonmoving party or, in other
words, that the evidence favoring the nonmoving party is
insufficient to enable a reasonable jury to return a verdict
in her favor.” Id. at 411-12 (internal
quotation marks and citation omitted). To this end,
“[t]he moving party bears the burden of establishing
that there are no genuine issues of material fact.”
Id. at 412.
… the nonmoving party bears the burden of proof at
trial, the moving party may demonstrate that it is entitled
to summary judgment by submitting affidavits or other similar
evidence negating the nonmoving party's claim, or by
pointing out to the district court the absence of evidence
necessary to support the nonmoving party's case.”
Morris v. Covan World Wide Moving, Inc.,
144 F.3d 377, 380 (5th Cir. 1998) (citation omitted). If the
moving party makes the necessary demonstration, “the
burden shifts to the nonmoving party to show that summary
judgment is inappropriate.” Id. In making this
showing, “the nonmoving party must go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial.” Cotroneo v. Shaw Env't &
Infrastructure, Inc., 639 F.3d 186, 191-92 (5th Cir.
2011) (citation and internal punctuation omitted). When
considering a motion for summary judgment, the Court
“resolve[s] factual controversies in favor of the
nonmoving party.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994).
August 12, 2015, Jenny Stafford filed a complaint in this
Court against DeSoto Acquisition Corporation (“DeSoto
Acquisition”); Memphis Street Café, LLC
(“Café”); and Natalia Gudkovskaya. Doc.
#1. The complaint alleges that Stafford suffered injuries
when she slipped and fell on an inadequately lit stairway
leading down to the Café. Stafford alleges that the
inadequate lighting was the result of negligence by the
Café; Gudkovskaya, the owner of the Café; and
DeSoto Acquisition, the owner of the building housing the
Café. DeSoto Acquisition answered the complaint on
September 14, 2015, and the Café and Gudkovskaya
(collectively, “Café Defendants”) filed a
joint answer three days later. Doc. #4; Doc. #7.
10, 2016, following a period of discovery, DeSoto Acquisition
filed a motion for summary judgment. Doc. #51. The
Café Defendants filed a joint motion for summary
judgment on June 13, 2016. Doc. #53. After receiving
extensions, Stafford responded in opposition to both motions
on July 11, 2016. Doc. #57; Doc. #59. DeSoto Acquisition and
the Café Defendants each replied on July 19, 2016.
Doc. #61; Doc. #62.
December 7, 2016, the Café Defendants filed a motion
in limine seeking to exclude “testimony or evidence
concerning any alleged violation of the zoning or design
standard ordinances for the city of Hernando,
Mississippi.” Doc. #66. On December 9, 2016, Stafford
responded in opposition to the motion in limine. Doc. #67.
Later that day, DeSoto Acquisition “joined” the
motion. Doc. #69. The Café Defendants
replied in support of the motion in limine on December 12,
2017, Doc. #70, and Stafford filed a sur-reply four days later,
their motions for summary judgment, the defendants argue that
a fact testified to by Stafford during her deposition may not
be used to oppose the respective motions for summary
judgment. Specifically, the defendants argue as inadmissible
hearsay Stafford's statement that, after her fall, a
member of the “restaurant staff” walked over to
her and said, “We realized the light was out and we
were ... aiming to fix it.” Doc. #52 at 8; Doc. #54 at
5. Stafford does not respond to this argument.
hearsay evidence that would not be admissible at trial does
not suffice to raise a genuine issue of material fact.”
Arora v. Starwood Hotels & Resorts Worldwide,
Inc., 294 F. App'x 159, 161 (5th Cir. 2008) (citing
Clary v. Comput. Assocs. Intern., Inc., 109 F.3d
765, 765 (5th Cir. 1997)). Under Rule 801 of the Federal
Rules of Evidence, hearsay is defined as a “statement
that … the declarant does not make while testifying at
the current trial or hearing [and] a party offers in evidence
to prove the truth of the matter asserted in the
statement.” “Once a party has properly objected
to evidence as inadmissible hearsay, the burden shifts to the
proponent of the evidence to show, by a preponderance of the
evidence, that the evidence falls within an exclusion or
exception to the hearsay rule and was therefore
admissible.” Loomis v. Starkville Miss. Pub. Sch.
Dist., 150 F.Supp.3d 730, 742-43 (N.D. Miss. 2015)
(internal quotation marks and alterations omitted).
the defendants correctly argue that the statement attributed
to the unnamed woman, as stated by Stafford, is hearsay if
offered for the purpose of showing that the woman (allegedly
an employee of the Café) knew the light was out.
Accordingly, Stafford must show that the statement falls
within an exclusion or exception to the hearsay rule.
Stafford has wholly failed in this regard by not responding
to the argument. Accordingly, the statement attributed to the
unnamed woman will not be considered in evaluating the
motions for summary judgment.
The Premises and Lease Agreement
the time period relevant to this suit, Gudkovskaya owned and
operated the Café located at 2476 Memphis Street in
Hernando, Mississippi. Doc. #58-3 at 4, 10; Doc. #58-4. The
property housing the Café was owned by DeSoto
Acquisition and leased to Gudkovskaya's husband,
Christopher Lee. Doc. #58-4. Of relevance here, the lease,
among other things, required DeSoto Acquisition to
“provide all maintenance, repairs, and replacements
[on] … exterior lighting” and granted DeSoto
Acquisition “the right … to enter [the] premises
at reasonable hours … for the purpose of inspecting
the premises and to make such repairs as Lessor may deem
necessary for the protection and preservation of the said
building and premises.” Doc. #58-4 at ¶¶ 20,
Café maintained two entrances - a front door and back
door. Doc. #58-3 at 8. To access the front door, which was
located below street level, customers had to travel down a
set of steps. Doc. #58-3 at Ex. 3. The stairway, which
included a handrail, was covered by an overhang and was lit
by a single light placed on the wall above the front door.
Id.; Doc. #58-1 ...