Smith v. Wal-Mart Louisiana

Case: 21-30665 Document: 00516242258 Page: 1 Date Filed: 03/16/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

March 16, 2022

No. 21-30665

Summary Calendar Lyle W. Cayce

Clerk Katrina Smith,

Plaintiff—Appellant, versus

Wal-Mart Louisiana, L.L.C.,

Defendant—Appellee.

Appeal from the United States District Court for the Western District of Louisiana No. 1:19-CV-447

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

This is a retail slip-and-fall case brought to federal court by diversity of citizenship. The plaintiff, Katrina Smith, alleged, under the Louisiana

Case: 21-30665 Document: 00516242258 Page: 2 Date Filed: 03/16/2022

No. 21-30665

Liability Act, La. Rev. Stat. § 9.2800.6, that she slipped on a clear liquid and was injured.

In a concise but comprehensive Memorandum Ruling issued on Sep- tember 2, 2021, the district court granted summary judgment for the defen- dant, Wal-Mart Louisiana, L.L.C. The court concluded that “Smith fails to provide any positive evidence establishing constructive notice and ʻ[m]ere speculation . . . is not sufficient to meet [Smith’s] burden and [this court] will not infer constructive notice for purposes of summary judgment where[her] allegations are no more likely than any other potential scenario.’” (district court’s alterations) (quoting Bagley v. Albertson’s, Inc., 492 F.3d 328, 330 (5th Cir. 2007)).

In so deciding, the court took careful note of Smith’s theory that sur- veillance video supported her claim. We agree with the district court’s con- clusions based on its application of Louisiana law and the summary judgment evidence.

On appeal, Smith avers that the district court should have allowed her to amend to add a complaint against a non-diverse store employee who walked directly by a spill. Under 28 U.S.C. § 1447(e), “[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy sub- ject matter jurisdiction, the court may deny joinder, or permit joinder and remand . . . .” The district court was well within its discretion to deny amend- ment to add a non-diverse hourly employee who was in the course of per- forming general administrative duties.

The summary judgment is AFFIRMED, essentially for the reasons amply explained in the Memorandum Ruling.