Brenda Hernandez, et al v. Sam's East, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13039
Non-Argument Calendar
____________________
BRENDA HERNANDEZ,
Plaintiff-Appellant,
versus
SAM’S EAST, INC.,
Defendant-Appellee.
____________________
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, B RASHER , and ANDERSON, Circuit Judges.
PER CURIAM:
Brenda Hernandez appeals the district court’s grant of sum-
mary judgment to defendant Sam’s East in her personal injury law-
suit. On appeal, Hernandez first argues that the district court
abused its discretion when it failed to afford her an adequate op-
portunity for discovery. Second, she argues that the court erred in
granting the motion because there existed a genuine issue of mate-
rial 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 famil-
iar 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 ap-
peal, we conclude that the district court correctly held that Her-
nandez has “failed to present any evidence, either direct or circum-
stantial, that would give rise to an inference that a foreign sub-
stance was on the floor long enough to charge Sam’s East with con-
structive 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 dis-
closure requirements under Federal Rule of Civil Procedure 26(a)(2)(B). Be-
cause 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, em-
ployee Johnson’s declaration and the closed-circuit television foot-
age 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 pro-
duce 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 rele-
vant 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 sub-
stance 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 discov-
ery 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 de-
nial 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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