United States District Court, W.D. North Carolina, Charlotte Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
C. Mullen United States District Judge.
MATTER is before the Court on Defendants' Motion for
Summary Judgment (Doc. No. 20) and Memorandum in Support
(Doc. No. 20-1). Plaintiff has not filed a response, and the
allotted time in which to do so has passed. For the reasons
set forth below, Defendants' Motion is GRANTED.
5, 2017, Defendants, Newell Brands Inc. f/k/a Newell
Rubbermaid Inc. and Wal-Mart Stores, Inc., moved this Court
for summary judgment on all of Plaintiff's claims in this
matter. In support of their motion, Defendants submitted a
Statement of Undisputed Material Facts (Doc. No. 21).
Defendants' Statement of Undisputed Material Facts was
properly supported by admissions made by Plaintiff as a
matter of law pursuant to Fed.R.Civ.P. 36(a)(3) due to
Plaintiff's failure to respond to any of the
Defendants' Requests for Admissions. See
generally Doc. No. 21, pp. 3-7.
8, 2017, this Court entered an Order (the
“Roseboro Order”; Doc. No. 23) in
accordance with Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975) advising Plaintiff of his
opportunity to file a response to the Motion for Summary
Judgment and the manner in which evidence could be submitted
to the Court, and giving Plaintiff “fourteen (14) days
from the filing of [the Roseboro] Order in which to
file [his] response to the Motion for Summary
the terms of the Court's Roseboro Order,
Plaintiff had 14 days from May 8, 2017 - i.e., until May 22,
2017 - to file a response to the Defendants' Motion for
Summary Judgment. Even if the so-called “three-day-mail
rule” were still in effect - which it no longer is, for
electronic service under Fed.R.Civ.P. 6(d) - Plaintiff had
through and until May 25, 2017, in which to file his response
to Defendants' Motion for Summary Judgment. Plaintiff did
not file a response to the Defendants' Motion for Summary
Judgment within the time specified in the Roseboro
Order. Nor did Plaintiff file a response on or before May 25,
2017. Because Plaintiff did not respond to the Motion for
Summary Judgment Motion, the only evidence in the record is
the admissions made by Plaintiff to the Defendants'
Requests for Admissions.
court shall grant summary judgment if the movant 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). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 47 U.S. 242, 248 (1986). The mere
existence of a scintilla of evidence in support of the
non-movant's position is not sufficient to establish a
genuine dispute. Id. at 252. A material fact affects
the outcome of the suit under the applicable substantive law.
See id. at 248. When determining whether a dispute
is genuine or a fact is material, courts are required to view
the facts and draw reasonable inferences in the light most
favorable to the party opposing the summary judgment motion.
Scott v. Harris, 550 U.S. 372, 378 (2007).
the moving party meets its initial burden, the burden shifts
to the nonmoving party. The nonmoving party “must set
forth specific facts showing that there is a genuine issue
for trial.” Id. at 322 n .3. The nonmoving
party must present sufficient evidence from which “a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 47 U.S. at 248; accord
Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810,
818 (4th Cir.1995). Further, and relevant to the present
action, the nonmoving party may not rely upon mere
allegations in his pleadings to defeat a motion for summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986). Finally, “Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, 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.” Id. at 322.
support of their Motion for Summary Judgment, Defendants
propose that the following facts are undisputed:
(1) Century Products Co. (“Century”) was the sole
apparent or actual designer and manufacturer of the subject
stroller (Doc. No. 21 at ¶ 16);
(2) Wal-Mart is a seller of retail goods and Wal-Mart
acquired the subject stroller from Century in a sealed box
with a label indicating that it was a Century-brand stroller
(Id. at ¶ 17);
(3) The subject stroller was purchased in this sealed box
with no labels indicating that the stroller was a