United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford Mag. Judge.
OPINION AND ORDER DISMISSING CASE WITH
E. Levy United States District Judge.
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
reasons set forth below, the Court dismisses Plaintiff's
nuisance claim with prejudice under Federal Rule of Civil
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.)
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.”
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)).
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.
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.
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).
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