3:24-cv-02734•Al-Atoum v. Wal-Mart Stores Texas LLC
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION KIMBERLY AL-ATOUM, § § Plaintiff, § § V. § No. 3:24-cv-2734-S-BN § WAL-MART STORES TEXAS, LLC, § § Defendant. § FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Plaintiff Kimberly Al-Atoum filed this negligence/premises liability action in a Dallas County, Texas state court against Defendant Wal-Mart Stores Texas, LLC (“Wal-Mart”), and Wal-Mart removed, alleging that there is diversity subject-matter jurisdiction under 28 U.S.C. § 1332. See Dkt. No. 1. After granting Al-Atoum’s then-counsel leave to withdraw, see Dkt. Nos. 15 & 17, United States District Judge Karen Gren Scholer referred this lawsuit to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b), see Dkt. No. 18. Under the scheduling order that Judge Scholer entered on January 21, 2025, see Dkt. No. 11, Wal-Mart moved for summary judgment on Al-Atoum’s allegations, see Dkt. Nos. 26-28. In response to the Court’s August 19, 2025 order [Dkt. No. 29], Wal-Mart filed an amended motion for summary judgment, see Dkt. Nos. 30-32. And, on the deadline to respond set by the August 19 order, Al-Atoum filed an Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 1 of 16 PageID <pageID>
- 2 - opposed motion requesting that the Court extend her deadline to respond to the amended summary judgment motion, explaining in part that she needed “additional time to complete discovery” and “depose a key witness whose testimony is materially relevant in refuting the claims made in Defendant’s Motion.” Dkt. No. 33. Because Al-Atoum’s motion did not comply with the requirements of Federal Rule of Civil Procedure 56(d), the Court denied an extension under that rule but found good cause to extend deadlines set by the supplemental (summary judgment) scheduling order under Federal Rule of Civil Procedure 16(b)(4). See Dkt. No. 34. Al-Atoum then responded to the summary judgment motion by the extended deadline. See Dkt. Nos. 39 & 40. And Wal-Mart replied. See Dkt. No. 41. Al-Atoum then filed a second response, see Dkt. No. 43, which the undersigned finds to be an unauthorized surreply, see N.D. TEX. L. CIV. R. 7.1(e) (allowing for a single response to a motion), and will not be considered in the analysis below, see Gezu v. Charter Commc’ns, 17 F.4th 547, 556 (5th Cir. 2021) (“Because the rules do not provide for surreplies as a matter of right, the district court only accepts such filings ‘in exceptional or extraordinary circumstances.’” (quoting Lacher v. West, 147 F. Supp. 2d 538, 539 (N.D. Tex. 2001))). And, for the following reasons, the undersigned recommends that Court grant Wal-Mart’s motion for summary judgment and enter judgment dismissing Al- Atoum’s lawsuit with prejudice. Legal Standards Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 2 of 16 PageID <pageID>
- 3 - movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED . R. CIV. P. 56(a). A factual “issue is material if its resolution could affect the outcome of the action.” Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). And “[a] factual dispute is ‘genuine,’ if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997). If the moving party seeks summary judgment as to his opponent’s claims or defenses, “[t]he moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party’s case.” Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED . R. CIV. P. 56(c)(1). “Summary judgment must be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which it will bear the burden of proof at trial. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 3 of 16 PageID <pageID>
- 4 - nonmovant’s response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (internal quotation marks and footnote omitted). “Once the moving party meets this burden, the nonmoving party must set forth” – and submit evidence of – “specific facts showing a genuine issue for trial and not rest upon the allegations or denials contained in its pleadings.” Lynch Props., 140 F.3d at 625; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); accord Pioneer Expl., 767 F.3d at 511 (“[T]he nonmovant cannot rely on the allegations in the pleadings alone” but rather “must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” (internal quotation marks and footnotes omitted)). The Court is required to consider all evidence and view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party and resolve all disputed factual controversies in favor of the nonmoving party – but only if the summary judgment evidence shows that an actual controversy exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Pioneer Expl., 767 F.3d at 511; Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); Lynch Props., 140 F.3d at 625. “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor. While the court must disregard evidence favorable to the moving party that the jury is not required to believe, it gives credence to evidence supporting the moving party that is uncontradicted and unimpeached if that evidence comes from disinterested witnesses.” Porter v. Houma Terrebonne Hous. Auth. Bd. of Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 4 of 16 PageID <pageID>
- 5 - Comm’rs, 810 F.3d 940, 942-43 (5th Cir. 2015) (internal quotation marks and footnotes omitted). And “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment,” Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003), and neither will “only a scintilla of evidence” meet the nonmovant’s burden, Little, 37 F.3d at 1075; accord Pioneer Expl., 767 F.3d at 511 (“Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” (internal quotation marks and footnote omitted)); Hassen v. Ruston La. Hosp. Co., L.L.C., 932 F.3d 353, 355 (5th Cir. 2019) (A court must “view the evidence and draw all justifiable inferences in favor of the nonmovant. Even so, barebones, conclusory, or otherwise- unsupported assertions won’t cut it; the nonmovant ‘must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial.’” (footnotes omitted)). So, “when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks omitted). Rather, the non-moving party must “set forth specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). “If a party fails to properly support an assertion of fact or fails to properly Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 5 of 16 PageID <pageID>
- 6 - address another party’s assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials – including the facts considered undisputed – show that the movant is entitled to it; or (4) issue any other appropriate order.” FED . R. C IV. P. 56(e). And “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Pioneer Expl., 767 F.3d at 511 (internal quotation marks and footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Scott, 550 U.S. at 380 (internal quotation marks and emphasis omitted). And, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. “After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” DIRECTV, Inc. v. Minor, 420 F.3d 546, 549 (5th Cir. 2005) (footnote and internal quotation marks omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott, 550 U.S. at 380 (internal quotation marks omitted). The Court will not assume “in the absence of any proof ... that the nonmoving Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 6 of 16 PageID <pageID>
- 7 - party could or would prove the necessary facts” and will grant summary judgment “in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075. “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment,” and “[a] failure on the part of the nonmoving party to offer proof concerning an essential element of its case necessarily renders all other facts immaterial and mandates a finding that no genuine issue of fact exists.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006) (internal quotation marks omitted). If, on the other hand, “the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co.,780 F.2d 1190, 1194 (5th Cir. 1986). The “beyond peradventure” standard imposes a “heavy” burden. Cont’l Cas. Co. v. St. Paul Fire & Marine Ins. Co., No. 3:04-cv-1866-D, 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007); accord Wilson v. Dall. Indep. Sch. Dist., No. 3:18-cv-34-G-BN, 2020 WL 825819, at *7 (N.D. Tex. Jan. 17, 2020) (“[B]eyond peradventure” means “beyond doubt.” (cleaned up)), rec. adopted, 2020 WL 821034 (N.D. Tex. Feb. 18, 2020). The moving party must demonstrate that there are no genuine and material fact disputes and that the party is entitled to summary judgment as a matter of law. Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 7 of 16 PageID <pageID>
- 8 - See, e.g., Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003). On such a motion, the Court will, again, “draw all reasonable inferences in favor of the non-moving party.” Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002). And, so, “summary judgment is appropriate where the evidence would require a directed verdict.” Hernandez v. Trendy Collections, LLC, No. 3:17-cv-2049-BN, 2018 WL 4103723, at *13 (N.D. Tex. Aug. 29, 2018) (cleaned up). “[T]he traditional leniency afforded to [ ] pro se plaintiff[s] does not excuse [them] from [their] burden of opposing summary judgment through the use of competent summary judgment evidence.” Malcolm v. Vicksburg Warren Sch. Dist. Bd. of Trs., 709 F. App’x 243, 246 (5th Cir. 2017) (per curiam) (citing Davis v. Fernandez, 798 F.3d 290, 293 (5th Cir. 2015) (“[T]his is not to say that pro se plaintiffs don’t have to submit competent evidence to avoid summary judgment, because they do.”)). And, “[a]lthough courts should advise pro se [parties] of procedural rules,” Brown v. Megg, 857 F.3d 287, 289 n.1 (5th Cir. 2017) (citing Davis, 798 F.3d at 293- 94), the United States Court of Appeals for the Fifth Circuit “has held that they need not be given additional notice of the consequences of a summary judgment motion and the right to submit opposing affidavits as the notice given by Rule 56 and the local rules suffices,” id. (citing Martin v. Harrison Cnty. Jail, 975 F.2d 192, 193 (5th Cir. 1992)); see also Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (“[T]here is a point at which even pro se litigants must become responsible for the prosecution of their own cases if their claims are to warrant the court’s attention. It Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 8 of 16 PageID <pageID>
- 9 - is not unjustifiably onerous to require pro se parties to respond to proper motions for summary judgment. All summary judgment nonmovants shoulder the same obligation. District courts can make appropriate allowances for pro se responses that may be somewhat less-artfully written than those of represented parties. This can be accomplished, however, without excusing them from the most basic requirement that they file a response.”). But the verified complaint and sworn interrogatory answers of a pro se litigant can be considered as summary judgment evidence to the extent such pleadings meet the requirements of Rule 56(e). See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994); accord Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (“On summary judgment, factual allegations set forth in a verified complaint may be treated the same as when they are contained in an affidavit.”). Analysis The Court must begin with its subject-matter jurisdiction – its “power to say what the law is.” United States v. Willis, 76 F.4th 467, 479 (5th Cir. 2023); see also Louisiana v. U.S. Dep’t of Energy, 90 F.4th 461, 466 (5th Cir. 2024) (“Jurisdiction is always first.” (citation omitted)). Because “‘[f]ederal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute,’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)), “subject-matter delineations must be policed by the courts on their own initiative even at the highest level,” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 9 of 16 PageID <pageID>
- 10 - 583-84 (1999) (citations omitted). And Wal-Mart, as the party invoking the Court’s diversity subject-matter jurisdiction through removal, must, “[a]t the summary judgment stage,” “provide evidence sufficient to support a jury finding of the citizenship of each” party, Megalomedia Inc. v. Phila. Indem. Ins. Co., 115 F.4th 657, 659 (5th Cir. 2024) (published order), as the undersigned further explained in the August 19 order discussing this requirement as framed by recent decisions of the Fifth Circuit, see Dkt. No. 29 at 2. The amended notice of removal and its attachments include factual allegations from which the Court may infer (1) that Al-Atoum is a citizen of Texas and (2) that Wal-Mart is a citizen of Delaware and Arkansas, see Dkt. No. 23, ¶¶ 2 & 7-16; Dkt. No. 23-1; Dkt. No. 23-2; Dkt. No. 23-3; 28 U.S.C. § 1332(c)(1); SXSW v. Fed. Ins. Co., 83 F.4th 405, 407-09 (5th Cir. 2023); Coury v. Prot, 85 F.3d 244, 251 (5th Cir. 1996). But the record at summary judgment must also include sufficient evidence. And attached to the amended notice of removal is evidence sufficient to support a jury finding as to Al-Atoum’s citizenship. Compare Dkt. No. 23-3 (deposition excerpts supporting that Al-Atoum is domiciled in Texas, where she has continuously lived and raised a family, worked, and shopped), with Coury, 85 F.3d at 251 (“In determining a litigant’s domicile, the court must address a variety of factors. No single factor is determinative. The court should look to all evidence shedding light on the litigant’s intention to establish domicile. The factors may include the places where the litigant exercises civil and political rights, pays taxes, owns real and personal Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 10 of 16 PageID <pageID>
- 11 - property, has driver’s and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for his family.”). As for Wal-Mart, as a limited liability company, see, e.g., Dkt. No. 23, ¶¶ 9-14; Dkt. No. 31 at 9, its “§ 1332 citizenship is determined by the citizenship of all of its members,” so, “[t]o establish diversity jurisdiction in a suit by or against an LLC, a party must specifically allege the citizenship of every member of every LLC,” SXSW, 83 F.4th at 407-08 (cleaned up). And Wal-Mart has provided evidence sufficient to support a jury finding as to its citizenship through the appendix in support of the motion for summary judgment. See Dkt. Nos. 32-5, 32-6, 32-7, & 32-8. And, so, sufficient evidence shows that there is complete diversity of citizenship to support subject-matter jurisdiction under Section 1332. And the Court may turn to the merits of the motion for summary judgment. Al-Atoum filed an amended complaint after removal alleging that, “[o]n September 26, 2022, [she] was injured on the premises of a Wal-Mart grocery store, located [in DeSoto, Texas]” when she “was walking down an isle inside of Wal-Mart” and “slipped and fell onto her hands and knees, causing injury,” further alleging that “[t]here appeared to be a brown substance on the floor” but “[t]here were no wet floor or caution signs in the area warning of a dangerous condition” and that, “[a]t the time of injury, the premises were being used as a retail store by [Wal-Mart].” Dkt. No. 6, ¶ 5. Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 11 of 16 PageID <pageID>
- 12 - Based on this incident, Al-Atoum asserts a single cause of action, for negligence. See id., ¶¶ 8 & 9. Moving for summary judgment, Wal-Mart begins by arguing that this negligence claim sounds in premises liability: Plaintiff alleges that Wal-Mart owed her, an invitee, a duty of ordinary care to keep the premises in a reasonably safe condition, inspect for defects, and make safe or warn of dangers. She claims that that Wal- Mart knew or should have known about the substance on the floor and that the substance created an unreasonable risk of harm and caused her injuries. Under a premises liability cause of action, a Texas store owner owes a duty of reasonable care to protect invitees against known or discoverable conditions that are unreasonably dangerous. As such, Defendant subsequently refers to Plaintiff’s negligence cause of action as a premises liability claim. Dkt. No. 31 at 10 (cleaned up). And the undersigned agrees with Wal-Mart that this is a premises liability case. See, e.g., Gonzales v. Home Depot USA, Inc., No. 3:21-cv-440-D, 2022 WL 1102862, at *3 (N.D. Tex. Apr. 13, 2022) (“A plaintiff injured on another’s property can assert either a general negligence claim or a premises liability claim.” But “[w]hen the plaintiff slips on a condition on the floor, her proper claim is a premises liability claim.” (citations omitted)). “A successful premises liability claim must show ‘(1) the property owner had actual or constructive knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner’s failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee.’” Weathered v. Family Dollar Stores of Tex. LLC, No. 3:22-cv-2409-K-BN, Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 12 of 16 PageID <pageID>
- 13 - 2023 WL 8628929, at *6 (N.D. Tex. Nov. 27, 2023) (quoting Henklel v. Norman, 41 S.W.3d 248, 251-52 (Tex. 2014) (per curiam)), rec. accepted, 2023 WL 8627816 (N.D. Tex. Dec. 13, 2023). And “[a] plaintiff can show knowledge by demonstrating that the defendant ‘placed the substance on the floor,’ the defendant ‘actually knew the substance was on the floor,’ or that ‘the condition existed long enough to give the premises owner a reasonable opportunity to discover it.’” Id. (quoting Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814-15 (Tex. 2002)); accord Gonzales, 2022 WL 1102862, at *4 (“There are ‘three methods by which a plaintiff may satisfy the knowledge element in a slip- and-fall case.’ The plaintiff may show that (1) the defendant placed the substance on the floor; (2) the defendant actually knew the substance was on the floor; or (3) the condition existed long enough to give the premises owner a reasonable opportunity to discover the condition.” (quoting then citing McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 358 (5th Cir. 2017))). Al-Atoum offers an affidavit through her response. See Dkt. No. 39-1. But neither that affidavit nor the substance of the response (if it could be considered evidence) provides the evidence needed to show that Wal-Mart had knowledge (actual or constructive) of the condition that caused her injury – and thus defeat Wal-Mart’s motion for summary judgment on the sole cause of action. See Gonzales, 2022 WL 1102862, at *4-*5. Still, Al-Atoum does argue that, because store video footage that Wal-Mart produced to her during discovery [Dkt. No. 40] fails to either show her shopping that Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 13 of 16 PageID <pageID>
- 14 - day, the brown substance at issue, or her slipping on that substance, Wal-Mart must have destroyed video evidence, and, so, she’s entitled to raise and benefit from a spoliation claim, see Dkt. No. 39 at 7-11. Wal-Mart replies that it did not destroy video evidence, it preserved it within one day of the incident. Defendant saved footage from the two cameras that could have captured the incident. This footage was produced to Plaintiff during discovery. After downloading both cameras’ footage for one hour before and one hour after the incident, Defendant’s employee checked “yes,” on Walmart’s Evidence Collection Sheet to indicate that the footage had been saved. Plaintiff acknowledges that she received Defendant’s “4 complete hours” of surveillance footage. These cameras are not fixed, they swivel around the store, and unfortunately, did not capture when the spill occurred, what caused the spill, any Walmart associates in the area, or the actual incident. While Defendant preserved and produced the footage it had, Plaintiff believes that Walmart destroyed evidence. She provides no evidence of such. Because there is no evidence that Walmart intentionally/deliberately destroyed or negligently failed to preserve evidence, Defendant respectfully asks the Court to deny Plaintiff’s requested spoliation instructions and inferences. Dkt. No. 41 at 6-7 (footnotes omitted). A court “permits an adverse inference against the spoliator or sanctions against the spoliator only upon a showing of ‘bad faith’ or ‘bad conduct.’” Costal Bridge Co., L.L.C. v. Heatec, Inc., 833 F. App’x 565, 572 (5th Cir. 2020) (per curiam) (quoting Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005)). When evaluating allegations regarding spoliation of evidence, federal courts sitting in diversity are to apply federal evidentiary rules rather than state spoliation laws. A plaintiff alleging spoliation must establish that the defendant intentionally destroyed the evidence for the purpose of depriving opposing parties of its use. It is insufficient to show that a party acted negligently, rather than intentionally, in spoliating the evidence. A spoliation claim has three elements: (1) the spoliating party must have controlled the evidence and been under an obligation to Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 14 of 16 PageID <pageID>
- 15 - preserve it at the time of destruction; (2) the evidence must have been intentionally destroyed; and (3) the moving party must show that the spoliating party acted in bad faith. A party seeking the sanction of an adverse-inference instruction based on spoliation of evidence must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Id. at 573-74 (cleaned up). Al-Atoum offers no nonconclusory support for any assertion that Wal-Mart either intentionally destroyed evidence, acted in bad faith, or destroyed evidence with a culpable state of mind. So her unsupported allegations of spoliation do not prevent granting summary judgment for Wal-Mart on the record before the Court. Recommendation The Court should grant Defendant Wal-Mart Stores Texas, LLC’s motion for summary judgment as amended [Dkt. Nos. 26 & 30] and enter judgment dismissing Plaintiff Kimberly Al-Atoum’s lawsuit with prejudice. A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED . R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions, and recommendation Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 15 of 16 PageID <pageID>
- 16 - where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). DATED: January 23, 2026 _________________________________________ DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE Case 3:24-cv-02734-S-BN Document 44 Filed 01/23/26 Page 16 of 16 PageID <pageID>
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