Davis v. Wal-Mart Stores East, LP

          Elizabeth A. Stafford Mag. Judge.

          OPINION AND ORDER DISMISSING CASE WITH PREJUDICE

          Judith E. Levy United States District Judge.

         Plaintiff Rosetta Davis brought this case against Defendant Wal-Mart Stores East, LP, alleging premises liability negligence and nuisance. (ECF No. 1.) The Court granted Defendant's motion for summary judgment as to Plaintiff's premises liability negligence claim. (ECF No. 24.) The Court notified the parties that Defendant may be entitled to summary judgment on the nuisance claim also, but before making this decision, the Court permitted Plaintiff to submit a brief by Friday December 13, 2019. (Id.) Plaintiff did not file a brief by the deadline, and still has not contacted the Court or otherwise indicated she intends to address her nuisance claim.

         For the reasons set forth below, the Court dismisses Plaintiff's nuisance claim with prejudice under Federal Rule of Civil Procedure 56(f).

         I. Background

         The factual background is set forth in the opinion and order granting Defendant's motion for partial summary judgment and is adopted here. (ECF No. 24.)

         II. Legal Standard

         Federal Rule of Civil Procedure 56(f) provides that tthe Court may, after giving notice and a reasonable time to respond, “(1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not genuinely be in dispute.”

         Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court may not grant summary judgment if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).

         III. Applicable Law

         The Court gave notice to the Plaintiff that it appeared dismissal was warranted under Rule 56(f), and Plaintiff did not respond. The law in the Sixth Circuit is clear that when a plaintiff fails to address a claim on summary judgment, the plaintiff is deemed to have abandoned that claim. See Hicks v. Concorde Career Coll., 449 Fed.Appx. 484, 487 (6th Cir. 2011) (holding that a district court properly declines to consider the merits of a claim when a plaintiff fails to address it in a response to a motion for summary judgment); Clark v. City of Dublin, 178 Fed.Appx. 522, 524-25 (6th Cir. 2006) (recognizing that the failure to respond properly to motion for summary judgment arguments constitutes abandonment of a claim);. Accordingly, Plaintiff is deemed to have abandoned her claim for nuisance.

         Despite this, the Court has undertaken an independent inquiry into the merits of Plaintiff's claim, and concludes dismissal is warranted. Michigan law applies in this diversity case. Conner v. Hardee's Food Sys., 65 Fed.Appx. 19, 22 (6th Cir. 2003) Michigan recognizes two types of nuisance claims: public nuisance and private nuisance. Adkins v. Thomas Solvent, Co., 440 Mich. 293, 302 (1992). Plaintiff's case does not align with either type.

         “A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.” Id. at 303. Plaintiff does not allege that Defendant interfered with the use or enjoyment of her land, so she cannot maintain a claim for private nuisance. See Marble v. Dobson, No. 20435, 1998 WL 1989918, at *1 n.1 (Mich. Ct. App. Sept. 18, 1998) (explaining that a plaintiff who stepped into a pothole in a driveway located at an apartment complex owned by the defendant “clearly” had “no cause of action for a private nuisance” because “no land owned by plaintiff [was] involved” in his claim).

         “A public nuisance involves the unreasonable interference with a right common to all members of the general public.” Sholberg v. Truman, 496 Mich. 1, 6 (2014) (quoting Adkins, 440 Mich. at 304 n.8). The term “unreasonable interference” includes conduct that: “(1) significantly interferes with the public's health, safety, peace, comfort, or convenience, (2) is proscribed by law, or (3) is known or should have been known by the actor to be of a continuing nature that produces a ...