Opinion
Civil Action No. 3:04-CV-0987-D.
March 29, 2005
MEMORANDUM OPINION AND ORDER
In this removed action, plaintiff Valerie Leverett ("Leverett") sues defendants Walgreen Company ("Walgreen") and Sunbeam Products, Inc. ("Sunbeam") for strict liability, negligence, and (possibly) breach of warranty arising from her purchase and use of a heating pad that caused burns to part of her body. Walgreen and Sunbeam move for summary judgment. For the reasons that follow, the court grants the motion and dismisses Leverett's suit by judgment filed today.
I
Leverett sues Walgreen and Sunbeam for injuries she suffered when she used a Sunbeam heating pad that she purchased from Walgreen. She alleges that she was injured on April 3, 2002 See Pet. ¶ 10. She filed suit in state court on April 5, 2004. Defendants contend that her claims for strict liability and negligence are time-barred under the applicable two-year statute of limitations, and that her possible breach of warranty action is barred by the four-year statute of limitations because more than four years have elapsed since the date the heating pad was sold or delivered. They also maintain that she cannot prove her claims against them on the merits.
Defendants filed their motion for summary judgment on January 27, 2005. Leverett's response was due by February 16, 2005, 20 days thereafter. See N.D. Tex. Civ. R. 7.1(e) ("A response and brief to an opposed motion must be filed within 20 days from the date the motion is filed."). She has not responded, and the motion is ripe for decision.
Leverett's failure to respond to defendants' motion does not permit the court to enter a "default" summary judgment, but the court may accept as true all of defendants' undisputed facts. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.). Moreover, "[a] summary judgment nonmovant who does not respond to the motion is relegated to her unsworn pleadings, which do not constitute summary judgment evidence." Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)).
II
The court grants summary judgment dismissing Leverett's claims for strict liability and negligence as time-barred. When the party who will have the burden of proof at trial concerning an affirmative defense seeks summary judgment on the basis of that defense, it "must establish `beyond peradventure all of the essential elements of the . . . defense.'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Because Leverett filed suit on April 5, 2004, in order to obtain summary judgment based on the statute of limitations, defendants must establish beyond peradventure that the causes of action accrued on a date before April 5, 2002. They cite Leverett's allegation in her state court petition that she was injured on April 3, 2002. Leverett has not responded to their motion and has failed to create a genuine issue of material fact concerning the date her causes of action accrued. The court therefore grants defendants' motion in this respect and dismisses Leverett's claims for strict liability and negligence.
III
The court will not decide Leverett's possible breach of warranty action on limitations grounds. Defendants maintain that Leverett has not responded to requests to inspect the heating pad, and they posit that the court should assume in the absence of contrary evidence that the heating pad was sold and delivered more than four years before she filed suit. Because limitations is an affirmative defense, defendants are obligated to establish beyond peradventure each essential element of the limitations defense. They have not done so concerning Leverett's possible breach of warranty claim. The court will thus turn to the merits.
Defendants point to the absence of evidence to support each of the essential elements of a breach of express and implied warranty cause of action. See Ds. Br. at 9, 10. Because they will not have the burden at trial on this claim, they can obtain summary judgment by pointing the court to the absence of evidence to support it. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If they do so, Leverett must go beyond her pleadings and designate specific facts showing there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary judgment is mandatory where the nonmoving party fails to meet this burden. Little, 37 F.3d at 1076. Because Leverett has failed to respond to defendants' motion, she has not designated specific facts showing there is a genuine issue for trial on this claim. She is in fact relegated to her unsworn pleadings, which, as noted above, do not constitute summary judgment evidence.
The court therefore grants summary judgment dismissing her breach of express and implied warranty cause of action.
* * *
Defendants' motion for summary judgment is granted, and this action is dismissed with prejudice by judgment filed today.
SO ORDERED.