United States District Court, D. Nevada
before the court is defendants CenturyLink Communications,
LLC.'s and CenturyLink Public Communications, Inc.'s
(collectively, as “defendants”) motion for
summary judgment. (ECF No. 3). Plaintiff Samuel Simpson Gray
filed a response (ECF No. 9), to which defendants replied
(ECF Nos. 11, 12).
instant action involves a slip-and-fall incident, which
occurred on a cable box in front of Walgreens on September
25, 2014. (ECF No. 1-1 at 25). Plaintiff alleges
CenturyLink's negligence in causing and failure to warn
of a hazardous condition resulted in his injuries. (ECF No.
1-1 at 26-27).
contacted Clark County regarding his claim “shortly
after” the incident. (ECF No. 9 at 4). On December 15,
2014, Clark County sent plaintiff a letter stating the county
was not liable, and was instructed to make him claim through
defendant Cox Communications Las Vegas, Inc., doing business
as Cox Communications (“Cox”). (ECF No. 9 at 4,
10). Plaintiff, through his daughter, forwarded his claim to
Cox on December 22, 2014. (ECF No. 3 at 3).
died in April 2016. (ECF No. 9 at 2 n.1).
counsel filed the original complaint against Cox in state
court on September 16, 2016, alleging two claims for relief:
(1) negligence; and (2) negligence per se. (ECF No.
1-1 at 1). In the original complaint, plaintiff's counsel
named “Samuel Simpson Gray, individually, ” as
the plaintiff. (ECF No. 1-1 at 1).
counsel amended the complaint to include the CenturyLink
defendants on January 20, 2017. (ECF No. 1-1 at 23).
Defendants timely removed. (ECF No. 1).
instant motion, defendants moves for summary judgment. (ECF
No. 3 at 6-8). CenturyLink raises the issue of standing in
their reply. (ECF No. 12 at 2 n.3).
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing ...