Opinion
C. A. 3:23-88-JDA-PJG
07-08-2024
Jamal Ibin Yusuf ‘AbduR-Rahman Smalls; Yusuf ‘Abdur-Rahman, Plaintiffs, v. The Walmart Stores, Defendant.
ORDER AND REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Jamal Ibin Yusuf ‘AbduR-Rahman Smalls and Yusuf ‘Abdur-Rahman, selfrepresented litigants, filed this negligence action against Defendant The Walmart Stores. This diversity case is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Walmart's motion for summary judgment. (ECF No. 63.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised the plaintiffs of the summary judgment and dismissal procedures and the possible consequences if they failed to respond adequately to Walmart's motion. (ECF No. 65.) The plaintiffs filed a response in opposition to the motion (ECF No. 73), and Walmart filed a reply (ECF No. 75). Having reviewed the record presented and the applicable law, the court concludes that Walmart's motion should be granted.
The plaintiffs then filed a sur-reply and attached new exhibits to support their claim. Walmart moved to strike the sur-reply (ECF No. 77), which prompted the plaintiffs to also move to strike the sur-reply (ECF No. 78). The plaintiffs then filed a motion to amend or correct their response in opposition to the motion so that they could include the exhibits they failed to originally attach (ECF No. 79), which Walmart opposes (ECF No. 81). The court observes that the Local Rules make no provision for sur-reply memoranda and the plaintiffs did not seek leave of the court to file a sur-reply in a timely manner. Moreover, the plaintiffs fail to explain why they did not attach the exhibits to their original response in opposition to Walmart's motion. See Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D. Md. 2003) (“Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply.”), affd, 85 Fed.Appx. 960 (4th Cir. 2004); DiPaulo v. Potter, 733 F.Supp.2d 666, 670 (M.D. N.C. 2010) (“Generally, courts allow a party to file a surreply only when fairness dictates based on new arguments raised in the previous reply.”); see also F.D.I.C. v. Cashion, 720 F.3d 169, 176 (4th Cir. 2013) (finding the district court did not abuse its discretion in granting a motion to strike a sur-reply because the district's local rules made no provision for sur-replies, the reply brief did not raise a new legal theory or new evidence, and the court's decision was not inequitable); Genesis Health Care, Inc. v. Soura, 165 F.Supp.3d 443, 456 (D.S.C. 2015) (allowing the plaintiff to file a sur-reply to address an issue first raised after a motion was fully briefed). Therefore, the plaintiffs' motion to amend the response in opposition is denied and the motions to strike the sur-reply are granted. Regardless, out of an abundance of caution given the plaintiffs' pro se status, the court has reviewed the additional exhibits presented by the plaintiffs and concludes that they would not have changed the court's recommendation.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiffs, to the extent they find support in the record. Plaintiffs Jamal Ibin Yusuf ‘AbduRRahman Smalls (“Jamal”) and Yusuf ‘Abdur-Rahman (“Yusuf”) were injured in a car wreck on August 22, 2022, when a wheel came off the car they were riding in, causing a wreck. Jamal and his father Yusuf were passengers in the car-a 2015 Jeep Renegade-owned and being driven by the mother of Jamal's children. Three days before the wreck, Jamal took the car to a Walmart store in Columbia, South Carolina to have the tires changed. Jamal had purchased four new tires online and brought them to the store to be changed. However, the store's technicians were able to change only three of the tires because the technicians were unable to remove the fourth tire. Jamal returned to the store the following day but the technicians were still unable to remove the tire. Jamal returned to the store after the wreck to complain about the tire coming off the car.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “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). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[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. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Walmart's Motion for Summary Judgment
Walmart argues that the plaintiffs cannot put forth any evidence to support their sole claim that Walmart's negligence caused the plaintiffs to be injured in the car wreck. The court agrees.
To establish a negligence cause of action under South Carolina law, the plaintiffs must prove: (1) a duty of care owed by the defendant to the plaintiffs; (2) a breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty. Bishop v. S.C. Dep't of Mental Health, 502 S.E.2d 78, 82-83 (S.C. 1998) (citing Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 292 (S.C. 1996)).
Here, the plaintiffs do not point to any evidence in the record from which a reasonable jury could find that the car wreck and their injuries were caused by a negligent act or omission by Walmart's technicians. See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (stating the non-moving party has “the ultimate burden of demonstrating a genuine issue of material fact for trial” and that “[c]onclusory or speculative allegations do not suffice, nor does a “mere scintilla of evidence” in support of his case”) (internal citations and quotation marks omitted); Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (“The nonmoving party, however, cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.”). In their response to Walmart's motion for summary judgment, the plaintiffs list three reasons they believe Walmart's technicians were the cause of the tire coming off the car and causing a wreck:
1. the technicians were “rushing” the tire repairs because it was near closing time;
2. the technicians failed to use a torque wrench to place the tires on a hub, as required by federal regulations and state law; and
3. the technicians failed to test drive the car and use a “figure-eight procedure” as required by law.(Pls.' Resp., ECF No. 73 at 2.) However, the plaintiffs do not cite to any evidence or law that would support these assertions, including any regulations or laws requiring the use of a torque wrench or figure-eight procedure to change a car tire. See Fed.R.Civ.P. 56(c)(1)(A) (providing a party asserting that a fact is genuinely disputed must support the assertion by “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”); see also CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020) (stating that a party's self-serving opinion, absent objective corroboration, cannot defeat summary judgment). In other words, the plaintiffs' own conjecture that Walmart's technicians failed to properly change the car's tires is not sufficient to create a genuine issue of fact from which a reasonable jury could conclude that the technicians' acts or omissions caused the plaintiffs' injuries. See Watson v. Ford Motor Co., 699 S.E.2d 169, 179 n.7 (S.C. 2010) (stating that because South Carolina does not recognize the doctrine of res ipsa loquitur-a rebuttable presumption that the defendant was negligent where an accident is one which ordinarily does not occur in the absence of negligence-speculation as to the cause of an accident will not support a tort claim in the absence of admissible evidence). There is simply no evidence in the record before the court that Walmart's technicians' action or inaction caused the car wreck and the plaintiffs' injuries.
RECOMMENDATION
Based on the foregoing, the court recommends Walmart's motion for summary judgment be granted.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).