United States District Court, D. Arizona
G. Campbell Senior United States District Judge
Plaintiff Vivian Epps sued CVS Health Corporation
(“CVS”) alleging injuries received at CVS retail
store #2963 (“Store 2963”). Doc. 1. CVS moves for
summary judgment (Doc. 71), and Plaintiff has filed a cross
motion for summary judgment (Doc. 79). The motions are fully
briefed, and oral argument will not aid the Court's
decision. Fed.R.Civ.P. 78(b); LRCiv 7.2(f). For the reasons
that follow, the Court will grant CVS's motion and deny
January 23, 2017, Plaintiff visited Store 2963 in Phoenix,
Arizona. See Doc. 72 ¶ 1. She alleges that she
suffered a head injury when a “metal bindery-shade,
” situated above the store's dairy container, fell
and hit her on the head. Doc. 1 at 1-2.
filed a complaint on April 25, 2018, naming CVS as the sole
defendant. See Docs. 1, 72 ¶ 2, 84 ¶ 2.
German Dobson CVS, LLC (“German”), moved to
dismiss the complaint, asserting that it owns and operates
Store 2963 and that it had not been properly served. Doc. 14.
Plaintiff responded that she chose to sue the
“HEADquarters rather than the BODY of the snake.”
Doc. 18 at 2. The Court denied German's motion because it
was not a party to the suit and Plaintiff clearly stated her
intent to sue CVS and not German. Doc. 24 at 1.
case management conference on September 27, 2018, the Court
explained to Plaintiff that CVS and German were asserting
that she had sued the wrong defendant. The Court explained
that Plaintiff could amend her complaint to name the correct
defendant, but if she chose to sue only CVS and the Court
later determined on summary judgment that CVS did not own
Store 2963, summary judgment could be entered against her.
Doc. 60 at 7-14. Plaintiff declined to amend and stated that
she would stand on her complaint against CVS. Id.
The Court accordingly established a schedule for focused
discovery on whether CVS can be liable for Plaintiff's
injures. Doc. 53.
has now closed, and CVS moves for summary judgment. CVS
asserts that it cannot be liable to Plaintiff because it is
not a possessor of Store 2963 and has no special relationship
that establishes a duty to Plaintiff. Doc. 71.
Court explained at the case management conference that
Plaintiff is required to follow the Federal Rules of Civil
Procedure and the Court's Local Rules. Doc. 60 at 3-5.
The Court apprised Plaintiff of a handbook for pro se
litigants prepared by the Court and available on its website.
Id. at 5. The handbook includes a section on the
summary judgment process. See Representing Yourself
in Federal Court in the District of Arizona: A Handbook for
Self-Represented Litigants (3d. ed. 2016) at 70-73,
available at http://
Court also explained the summary judgment process to
Plaintiff in an order dated February 15, 2019. See
this attempted assistance, Plaintiff has filed a bewildering
array of documents. These include two motions for summary
judgment (Docs. 74, 79), three responses to CVS's motion
for summary judgment (Docs. 73, 76, 83), briefs in support of
her motion and response (Docs. 81, 85), a motion to submit
copies of other evidence with an accompanying memorandum
(Docs. 90, 91), a motion for leave to file a response to
Defendants' reply (Doc. 92), and a motion to amend or
correct exhibits with an accompanying memorandum (Docs.
95-96). Plaintiff attaches exhibits, most of them
duplicative, to eight of these filings. See Docs.
74, 75, 76, 79, 81, 82, 85, 86.
Plaintiff's first motion for summary judgment and two
responses to CVS's motion, the Court gave Plaintiff until
February 28, 2019 to file a new motion for summary judgment
and until March 11, 2019 to file a response brief that
complied fully with Rule 56. Doc. 77. Because they were filed
after the Court's clarifying order, the Court has focused
primarily on Plaintiff's second motion for summary
judgment (Doc. 79) and her last response to CVS's motion
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Summary judgment is appropriate if
the evidence, viewed in the light most favorable to the
nonmoving party, shows “that 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).
Summary judgment is also appropriate against a party who
“fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322.
the parties do not dispute choice of law, and both apply
Arizona law in their briefs, the court will also apply
Arizona law. A negligence action may be maintained in Arizona
“only if there is a duty or obligation, recognized by
law, which requires the defendant to conform to a particular
standard of conduct in order to protect others against
unreasonable risks of harm.” Markowitz v. Ariz.
Parks Bd., 706 P.2d 364, 366 (Ariz. 1985); see also
Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007) (setting
forth the elements of a negligence claim). The primary issue
is whether CVS owes a duty to Plaintiff.
normally is determined as a matter of law. Beach v. City
of Phoenix, 667 P.2d 1316, 1320 (Ariz. 1983). Under
Arizona law, a duty must be based on a special relationship
recognized by the common law or a relationship created by
public policy. See Quiroz v. ALCOA Inc., 416 P.3d
824, 829 (Ariz. 2018).