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Gray v. Cox Communications Las Vegas, Inc.

United States District Court, D. Nevada

June 14, 2017

SAMUEL SIMPSON GRAY, Plaintiff(s),
v.
COX COMMUNICATIONS LAS VEGAS, INC., et al., Defendant(s).

          ORDER

         Presently 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).

         I. Facts

         The 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).

         Plaintiff 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).

         Plaintiff died in April 2016. (ECF No. 9 at 2 n.1).

         Plaintiff's 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).

         Plaintiff's 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).

         In the 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).

         II. Legal Standard

         The 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).

         For 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.

         In 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).

         By 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).

         If the 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 ...


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