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Epps v. CVS Health Corp.

United States District Court, D. Arizona

May 7, 2019

Vivian Epps, Plaintiff,
CVS Health Corporation, Defendant.


          David G. Campbell Senior United States District Judge

         Pro se 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 Plaintiff's motion.

         I. Background.

         On 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.

         Plaintiff 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.

         At a 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.

         Discovery 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.

         The 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:// The Court also explained the summary judgment process to Plaintiff in an order dated February 15, 2019. See Doc. 77.

         Despite 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.

         After 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 (Doc. 83).

         II. Legal Standard.

         A party 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.

         III. Negligence.

         Because 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.

         Duty 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).

         A. ...

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