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Ricco v. Walmart

United States District Court, Third Circuit

September 16, 2013

ALFRED RICCO, Plaintiff,
WALMART, JOHN DOES 1-3, and JOHN DOES 4-6, Defendants. WALMART, Third Party Plaintiff,
AUDUBON VENTURES, LLC, Third Party Defendant.

Marc A. Weinberg, Esquire, Saffern & Weinberg, Jenkintown, Pennsylvania, Attorney for Plaintiff Alfred Ricco.

Carmen Marie Finegan, Esquire, Marni Sabrina Berger, Esquire, Roberto K. Paglione, Esquire, McDonnell & Associates PC, Cherry Hill, New Jersey, Attorneys for Defendant/Third-Party Plaintiff Wal-Mart, Stores East, LP, improperly pled as Wal-Mart.

Joseph A. Venuti, Esquire, Swartz Campbell, LLC, Mt. Laurel, New Jersey, Attorney for Third-Party Defendant Audubon Ventures, LLC.


NOEL L. HILLMAN, District Judge.

This matter comes before the Court by way of Defendant Wal-Mart Stores East, LP's motion [Doc. No. 28] seeking summary judgment pursuant to Federal Rule of Civil Procedure 56 on all of Plaintiff's claims. Also before the Court are two motions [Doc. Nos. 29, 35] by Third-Party Defendant Audubon Ventures, LLC to strike the third party complaints [Doc. Nos. 22, 31] filed by Defendant and Third-Party Plaintiff Wal-Mart Stores East, LP. The Court has considered the parties' submissions and decides this matter pursuant to Federal Rule of Civil Procedure 78.

For the reasons expressed below, Defendant Wal-Mart Stores East, LP's motion for summary judgment will be granted and Defendant Audubon Ventures, LLC's motions to strike the thirdparty complaints will be denied as moot.


The Court exercises jurisdiction over this matter pursuant to 28 U.S.C. § 1332 based on diversity of citizenship between the parties and an amount in controversy in excess of $75, 000. Plaintiff Alfred Ricco is a New Jersey citizen residing in Camden County, New Jersey. (See Def.'s Resp. to Ct.'s Order to Show Cause [Doc. No. 8] ¶ 5.) Defendant Wal-Mart Stores East, LP (hereinafter, "Wal-Mart") is a limited partnership and a citizen of both Delaware and Arkansas. ( Id. ¶ 7.) Specifically, Wal-Mart's sole general partner is Wal-Mart Stores East Management, LLC, and Wal-Mart's sole limited partner is Wal-Mart Stores East Investment, LLC. (Id.) The sole member of both Wal-Mart's limited and general partners is Wal-Mart Stores East, Inc., which is a Delaware corporation with its principle place of business in Arkansas. ( Id. ¶¶ 8-10.) Accordingly, complete diversity of citizenship exists between the parties in this action.[1] As Plaintiff failed to respond to Wal-Mart's request to limit damages to less than $75, 000, it appears that the amount in controversy is in excess of $75, 000, exclusive of interest and costs.


Plaintiff originally filed his complaint in this action on January 12, 2012 in the Superior Court of New Jersey, Law Division, Camden County. ( Id. ¶ 1.) Wal-Mart subsequently removed the action to this Court pursuant to 28 U.S.C. § 1441. Plaintiff's complaint against Wal-Mart alleges that on January 17, 2010, while walking across the parking lot outside of the Wal-Mart store in question[2] Plaintiff tripped and fell because of a defect in the parking lot - a cracked curb. (See Ex. B to Def.'s Motion to File Third Party Compl., Pl.'s Am. Compl. [Doc. No. 19-1] (hereinafter "Pl.'s Am. Compl."), ¶¶ 7-8.) At the time of the incident, the building and parking lot premises were owned by Audubon Ventures, LLC and leased to Wal-Mart. (See Ex. D. to Def.'s Mot. Summ. J., Lease Agreement [Doc. No. 28-2] (hereinafter "Lease Agreement"), 2.) Plaintiff claims that Wal-Mart breached a duty of care owed to him, as Wal-Mart's business invitee, by failing to maintain the property, which constituted carelessness or negligence on the part of Wal-Mart. Plaintiff alleges that due to this breach, Plaintiff suffered personal injuries resulting in medical expenses, pain and humiliation, and loss of earning capacity.[3] (Pl.'s Am. Compl. ¶ 11.)

On October 24, 2012, Wal-Mart sought leave of Court to file a third-party complaint against Audubon pursuant to Federal Rule of Civil Procedure 14(a)(1), claiming contribution and indemnification and joint and several liability from Audubon for all or part of Plaintiff's damages if Plaintiff were successful on his negligence claim against Wal-Mart. The Honorable Karen M. Williams, United States Magistrate Judge, granted Wal-Mart's motion [Doc. No. 19] by Order [Doc. No. 21] dated November 20, 2012. Wal-Mart subsequently filed its first third-party complaint [Doc. No. 22] against Audubon alleging that at the time of the incident, Audubon owned the parking lot premises at issue, and by the terms of the Lease Agreement, was solely responsible for all repairs, service, and maintenance of the premises. (See Def.'s Mot. for Leave to File Third-Party Compl. [Doc. No. 19] 4-5, Oct. 24, 2012.)

On December 28, 2012, Audubon filed a motion [Doc. No. 29] to strike and dismiss Wal-Mart's third-party complaint [Doc. No. 22] pursuant to Federal Rule of Civil Procedure 14(a)(4) on the basis that its late joinder in this case was caused by Wal-Mart's undue delay, bad faith, and dilatory motives and resulted in unfair prejudice to Audubon. On January 4, 2013, Wal-Mart filed an amended third-party complaint [Doc. No. 31] in which it dropped its claim for contractual contribution and indemnification against Audubon. Subsequently, on January 11, 2013, Audubon filed a second motion [Doc. No. 35] to strike and dismiss with respect to Wal-Mart's amended third-party complaint. Additionally, on January 22, 2103, Audubon filed a brief [Doc. No. 39] in opposition to Wal-Mart's motion for summary judgment.[4]


In the present motion, Wal-Mart seeks the entry of summary judgment in its favor on Plaintiff's negligence claims. Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56).

An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id . "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co. , 358 F.3d 241, 247 (3d Cir. 2004) (citing Anderson , 477 U.S. at 255). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323 ("[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." (citation omitted); see also Singletary v. Pa. Dept. of Corr. , 266 F.3d 186, 192 n.2 (3d Cir. 2001) ("Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, the burden on the moving party may be discharged by "showing" - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof.") (citing Celotex , 477 U.S. at 325).

Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Celotex , 477 U.S. at 324. A "party opposing summary judgment may not rest upon the mere allegations or denials of the... pleading[s.]" Saldana v. Kmart Corp. , 260 F.3d 228, 232 (3d Cir. 2001) (internal quotations omitted). For "the non-moving party[] to prevail, [that party] must make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Cooper v. Sniezek, 418 F.Appx. 56, 58 (3d Cir. 2011) (citing Celotex , 477 U.S. at 322). Thus, to withstand a properly ...

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