Randy Austin v. Kroger Texas, L.P.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10502 FILED
April 14, 2017

RANDY J. AUSTIN, Lyle W. Cayce
Clerk
Plaintiff - Appellant

v.

KROGER TEXAS, L.P., doing business as Kroger Store #209,

Defendant - Appellee

Appeal from the United States District Court
for the Northern District of Texas

Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:
Randy J. Austin appeals the district court’s (1) denial of his motion to
reconsider an order denying leave to file a surreply and (2) grant of summary
judgment to Kroger Texas, L.P., on his ordinary negligence/necessary
instrumentalities claim. The district court, in one memorandum opinion and
order, both denied the motion to reconsider for Austin’s failure to satisfy
Federal Rule of Civil Procedure 59(e) and granted summary judgment in favor
of Kroger on three independent grounds. For the reasons explained below, we
REVERSE in part, VACATE in part, and REMAND the case for further
proceedings consistent with this judgment, as more fully explained below.
 No. 16-10502

I. Background
Plaintiff-Appellant Randy J. Austin was a long-time employee of
Defendant-Appellee Kroger Texas, L.P., working for the company in various
positions since 1997. In 2008, Austin became a “utility clerk” at the Kroger
store in Mesquite, Texas. His responsibilities included bagging groceries,
consolidating carts, and sweeping, mopping, and cleaning the store’s
restrooms.
On the morning of July 27, 2009, other employees of the Kroger store at
which Austin worked performed an annual cleaning of the store’s condenser
units, housed on the roof, or “mezzanine level,” of the building. This process
involved Kroger employees power-washing the condensers, which resulted in a
“brownie oily looking substance” leaking through the store’s ventilation ducts
and creating spills in both the men’s and women’s restrooms. Austin’s
supervisor directed him to clean up “whatever mess” the condenser cleaning
made. Austin had never worked on a day when the condensers had been
power-washed and was, therefore, unfamiliar with the liquid he was to clean
up.
Kroger’s safety handbook recommends that store management make
certain that a cleaning product called “Spill Magic” is adequately supplied at
all times. Spill Magic is a powdery absorbent that allows a liquid spill to be
cleaned with a broom and dustpan. Normally, Austin’s utility cart, which
Kroger provided, included Spill Magic. On the day the store cleaned its
condenser units, however, Kroger did not have any Spill Magic available for
Austin to use. Austin instead attempted to clean up the liquid with a dry mop.
He successfully cleaned a small puddle in the women’s restroom and then
proceeded to clean the men’s restroom, where the brownish liquid covered
about eighty percent of the floor. Austin placed “wet floor” signs around the
area and carefully took “baby steps” as he moved throughout the spill. After

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successfully cleaning thirty to forty percent of the spill in the men’s restroom,
Austin slipped in the remaining liquid and fell, fracturing his femur and
dislocating his hip. As a result of his injuries, Austin spent nine months in the
hospital and underwent six surgeries, leaving his left leg two inches shorter
than his right leg.
Austin originally filed the underlying lawsuit against Kroger in June
2011 in state court, seeking damages for the injuries that he suffered as a
result of his slip and fall. He alleged causes of action against Kroger for
premises liability, gross negligence, and ordinary negligence. In support of his
ordinary negligence claim, Austin alleged two different theories of liability:
Kroger had (1) engaged in negligent activities and (2) failed to provide Austin
a “necessary instrumentality” to perform his job safely—specifically, Spill
Magic.
Kroger removed the case to federal district court, and this court
ultimately affirmed the district court’s grant of summary judgment on Austin’s
premises liability, gross negligence, and ordinary negligence/negligent
activities claims. However, because the district court failed to consider
Austin’s ordinary negligence/necessary instrumentalities claim, we remanded
the case to that court so that it could consider that claim in the first instance.
See Austin v. Kroger Texas, L.P., 614 F. App’x 784 (5th Cir. 2015).
Following our remand, Kroger moved for summary judgment on Austin’s
ordinary negligence/necessary instrumentalities claim. After the close of
summary judgment briefing, but before summary judgment was granted,
Austin moved for reconsideration of his previously denied motion for leave to
file a surreply. Attached to that motion was an expert report on causation,
which Austin claimed would establish a material issue of fact as to causation.
Although the expert report was first filed with the district court in Austin’s
motion for reconsideration, it had previously been provided to Kroger about a

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week before Kroger filed its summary judgment motion. A few weeks after
Austin moved for reconsideration, the district court—in the same
memorandum opinion and order—both denied Austin’s motion for
reconsideration and granted Kroger’s motion for summary judgment. Austin
timely appealed both rulings.
II. Standard of Review
This court reviews de novo a district court’s grant of summary judgment,
applying the same standard as the district court. Ford Motor Co. v. Tex. Dep’t
of Transp., 264 F.3d 493, 498 (5th Cir. 2001). Summary judgment is
appropriate “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 genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the non-moving party.”
Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th
Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“The court need consider only the cited materials, but it may consider other
materials in the record.” FED. R. CIV. P. 56(c)(3). All evidence is viewed in the
light most favorable to the nonmoving party and all reasonable inferences are
drawn in that party’s favor. Crawford v. Formosa Plastics Corp., La., 234 F.3d
899, 902 (5th Cir. 2000).
This court reviews the district court’s denial of a motion for
reconsideration for an abuse of discretion. Calpetco 1981 v. Marshall
Exploration, Inc., 989 F.2d 1408, 1414 (5th Cir. 1993). “A trial court abuses its
discretion when its ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” United States v. Yanez Sosa, 513 F.3d
194, 200 (5th Cir. 2008) (quoting United States v. Ragsdale, 426 F.3d 765, 774
(5th Cir. 2005)).

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III. Discussion
The district court articulated three independent grounds for granting
Kroger’s summary judgment motion on Austin’s ordinary negligence/necessary
instrumentalities claim: (1) Kroger had no duty to provide Spill Magic because
Austin failed to create a genuine issue of material fact as to whether Spill
Magic was a necessary instrumentality; (2) Kroger had no duty to provide
Austin with a necessary instrumentality while he was performing “customary
work”; and (3) Austin failed to create a genuine issue of material fact as to
whether Kroger’s failure to provide Spill Magic caused his injuries. The
district court also denied Austin’s motion for reconsideration because it failed
to satisfy the requirements of Federal Rule of Civil Procedure 59(e). We
address each ground for summary judgment in turn, and discuss the denial of
Austin’s motion for reconsideration within the discussion on causation.
A. Issue of Material Fact as to Whether Spill Magic was a Necessary
Instrumentality
The district court first concluded that Kroger did not owe Austin a duty
to provide Spill Magic because Austin’s evidence did not create a material fact
issue about whether Spill Magic was necessary for the safe performance of his
job. Because there is a genuine issue of material fact as to whether Spill Magic
was necessary to the safe performance of Austin’s job, summary judgment was
not appropriate on this ground.
Under Texas law, an employer has a duty to “provide needed safety
equipment” to employees. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.
2006); see also Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex. 1974)
(“[T]he employer [has a duty] to furnish equipment adequate to enable an
employee safely to do a job[.]”). However, employers have “no duty to provide
equipment or assistance that is unnecessary to the job’s safe performance.”
Elwood, 197 S.W.3d at 795.

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In Allsup’s Convenience Stores, Inc. v. Warren, a Texas Court of Appeals
considered several factors relevant to determining that an instrumentality was
not necessary for the safe performance of an employee’s job: (1) the employee
had never requested the instrumentality in question; (2) the employee had not
complained that the task she was performing was unsafe; (3) the employee had
safely performed the task in the past without injury; (4) there was no evidence
that the instrumentality “was commonly used in, or had been established by
industry standards or customs as a safety measure for” her job; (5) there was
no evidence that “a reasonably prudent employer would have provided such
instrumentality”; and (6) there was no medical evidence that the
instrumentality would have prevented the employee’s injury. 934 S.W.2d 433,
438 (Tex. App.—Amarillo 1996, writ denied). Here, the district court applied
those factors and determined that there was no evidence from which a
reasonable jury could conclude that Spill Magic was a necessary
instrumentality for the safe performance of Austin’s job.
Applying the Allsup’s factors, we hold that there is a material fact issue
as to whether Spill Magic was a necessary instrumentality, specifically
pertaining to the fourth and fifth Allsup’s factors. See id. Austin testified that
whenever he “arrived at a wet spill that had oil or water on the ground,” he
would use Spill Magic to clean up the mess. Austin also testified that Spill
Magic is “effective” 1 when cleaning spills and that it was customarily provided
by Kroger for Austin to use. The store manager at the time of Austin’s injury
admitted that Spill Magic was an important part of the safety practice at the

1 The district court determined that Austin’s testimony about Spill Magic’s efficacy as
a cleaning agent was “speculative” and “not enough.” We conclude that a janitor with fifteen
years’ experience is competent to testify about the effectiveness of cleaning products and
methods. See United States v. Riddle, 103 F.3d 423, 428–29 (5th Cir. 1997) (acknowledging
that we have allowed lay witness opinions that required specialized knowledge as long as the
opinion is a “straightforward conclusion[] from observations informed by his own experience”
and is “one that a normal person would form from those perceptions”).
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store. There was also record evidence that Kroger’s handbook instructed store
management to “make certain that the Spill Magic Spill Response Stations
[were] adequately supplied at all times” and available in numerous places
throughout the store, in part because Kroger believed that Spill Magic reduced
the likelihood of slip and falls by 25%. 2 This evidence, when viewed in the light
most favorable to Austin, creates genuine issues of material fact as to whether
(1) “the instrumentality was commonly used . . . as a safety measure” and (2) “a
reasonably prudent employer would have provided such instrumentality.” 3 See
id.
Kroger places undue emphasis on the fact that, immediately before the
accident, Austin had successfully cleaned a spill of the same type of liquid in
the women’s restroom with a dry mop. Kroger argues that this evidence
demonstrates that a dry mop was adequate to safely clean this type of spill,
and therefore Spill Magic was unnecessary. However, the fact that Austin had
successfully cleaned a much smaller spill in the women’s restroom with a dry
mop does not conclusively demonstrate that Spill Magic was not necessary for
Austin to safely clean a much larger and more serious spill in the men’s
restroom. 4

2Kroger’s handbook, when used against Kroger, is admissible nonhearsay evidence as
a statement by a party opponent. See FED. R. EVID. 801(d)(2).
3 Austin also contends that the district court should have considered his causation
expert’s report in its analysis of the Allsup’s factors. As discussed infra, we conclude that the
district court abused its discretion in refusing to consider whether to allow the belated expert
report to supplement the record. However, even without considering the expert report, we
hold that there was a genuine issue of material fact as to whether Spill Magic was a necessary
instrumentality for the safe performance of Austin’s job.
4 Indeed, the evidence, when viewed in the light most favorable to Austin, suggests

that a dry mop was inadequate to clean a spill the size and type of the one Austin encountered
in the men’s restroom on the day of his accident. Although Austin testified that the dry mop
heads worked, he also testified that they worked “slowly.” Despite spending over thirty
minutes cleaning the men’s restroom, and despite going through several dry mop heads,
Austin had only cleaned thirty to forty percent of the spill before his accident occurred.
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In sum, when we view the evidence in the light most favorable to Austin,
there is a genuine issue of material fact as to whether Spill Magic was a
necessary instrumentality for the safe performance of Austin’s job. Therefore,
summary judgment on this ground was inappropriate.
B. Duty to Provide Necessary Instrumentalities for an Employee’s
Customary Work
The district court next determined that an employer does not have a duty
to protect an employee from injury when the employee is engaged in the
“customary work” of someone in that line of employment. Moreover, the
district court concluded that an employee’s injuries sustained during the
performance of his customary work are unforeseeable as a matter of law.
Accordingly, after finding that Austin’s injuries occurred during the
performance of his customary work, the district court concluded that Kroger
could not be liable for Austin’s injuries.
Under Texas law, “[t]he existence of a legal duty is a question of law for
the court to decide from the facts surrounding the occurrence in question.”
Military Highway Water Supply Corp. v. Morin, 156 S.W.3d 569, 572 (Tex.
2005) (alteration in original) (quoting City of McAllen v. De La Garza, 898
S.W.2d 809, 810 (Tex. 1995)). When determining whether a defendant is under
a legal duty, “foreseeability of the risk ‘is the foremost and dominant
consideration.’” City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009)
(quoting Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.
1990)). There is no question that, under Texas law, an employer is under a
general duty to provide its employees with necessary instrumentalities to
safely perform their work. Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 215
(Tex. 2015) (“Austin’s instrumentalities claim invokes . . . the duty to furnish
reasonably safe equipment necessary for performance of the job.”). The only
question here is whether the scope of that duty extends to an employee’s

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customary work. Because we conclude that (1) employees may recover for
injuries sustained during their customary work when their employers do not
subscribe to the Texas Workers’ Compensation (“TWC”) Act and fail to provide
necessary instrumentalities, and (2) Austin’s slip and fall would be a
foreseeable consequence of failing to provide necessary equipment to safely
cleanup spills, summary judgment is not appropriate on this ground.
“Texas allows employers to opt out of its workers’ compensation program.
Tex. Lab. Code § 406.002(a). ‘But the state makes that choice an unattractive
one.’” Austin v. Kroger Tex. L.P., 746 F.3d 191, 197 (5th Cir. 2014) (quoting
Hook v. Morrison Milling Co., 38 F.3d 776, 778 (5th Cir.1994)). The TWC Act
vests employees of nonsubscribing employers 5 with the right to bring “an
action against [their] employer” “to recover damages for personal injuries or
death sustained . . . in the course and scope of the employment.” TEX. LAB.
CODE § 406.033(a); see also Austin, 746 F.3d at 197–98 (noting that the TWC
Act “vests employees of non-subscribing employers with the right to sue their
employers for work-related injuries or death”). The Code defines “course and
scope of employment” broadly, so as to include the performance of
an activity of any kind or character that has to do with
and originates in the work, business, trade, or
profession of the employer and that is performed by an
employee while engaged in or about the furtherance of
the affairs or business of the employer.
TEX. LAB. CODE § 401.011(12) (emphasis added). This broad definition of
“course and scope of employment” notably does not include any exceptions for
routine jobs or tasks performed as part of an employee’s “customary work.”
Therefore, under the plain text of the TWC Act, an employee of a
nonsubscribing employer may recover damages for personal injuries sustained
while performing an activity “that has to do with and originates in the work,

5 It is undisputed that Kroger is a nonsubscribing employer under the TWC Act.
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business, trade, or profession of the employer,” even if that activity is
customary or routine. See id. at §§ 401.011(12) & 406.033(a).
The district court relied on the Supreme Court of Texas’s decisions in
Great Atlantic & Pacific Tea Co. v. Evans, 175 S.W.2d 249 (Tex. 1943), Werner
v. Colwell, 909 S.W.2d 866 (Tex. 1995), and Kroger Co. v. Elwood, 197 S.W.3d
793 (Tex. 2006) to nevertheless conclude that a nonsubscribing employer does
not have any duty to protect an employee from injury while engaged in the
“customary work” required of someone in that line of employment. But these
three cases only stand for the general proposition that an employer cannot be
liable for breaching its duty to an employee by merely requiring the employee
to perform his usual and customary work with the instrumentalities necessary
to safely perform the job. See Elwood, 197 S.W.3d at 794 (“[T]here is no
evidence that additional equipment or assistance were needed to perform
Elwood’s job safely.”); Werner, 909 S.W.2d at 869 (“[T]here is no evidence that
two employees constituted an inadequate work force to do the required
loading.”); Evans 175 S.W.2d at 251 (holding that an employer did not breach
its duty by requiring a stock boy to perform his customary work in accordance
with industry practice and prior performance). Instead, as relevant to this
case, because the employer has a duty to provide necessary instrumentalities
but not unnecessary instrumentalities, the employee must show that the
employer failed to provide instrumentalities to the employee that were
necessary for the safe performance of the employee’s customary work. See, e.g.,
Elwood, 197 S.W.3d at 794–95.
Evans, Werner, and Elwood do not abrogate an employer’s “well-
established non-delegable and continuous duty to furnish reasonably safe
instrumentalities with which its employees are to work” when the employee is
performing his customary job duties. Katy Springs & Mfg., Inc. v. Favalora,
476 S.W.3d 579, 589 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing

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Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975), overruled on other
grounds, Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978)).
Moreover, we are unaware of any case or statute saying that nonsubscribing
employers are obligated to provide necessary instrumentalities only when their
employees are performing irregular tasks. Were we to recognize such a rule,
it would lead to absurd results. 6 For example, employers of hazardous material
removal workers would have no duty to provide masks or hazmat suits to
employees removing asbestos, lead-based paint, or even radioactive materials,
but would have a duty to provide those same employees with necessary
instrumentalities for less hazardous tasks outside the normal scope of their
employment.
Whether there is evidence of a breach of such duty is a different matter,
but it cannot be, as the district court determined and as Kroger argues on
appeal, that there is no duty at all when the employee is engaged in his routine
job. See Martinez, 515 S.W.2d at 265 (“The duty of the master is at all times
to exercise ordinary care to furnish for the use of the servant safe and suitable
machinery and appliances with which the servant is to do his work.” (emphasis
added) (quoting Currie v. Mo., Kan. & Tex. Ry. Co., 108 S.W. 1167, 1169 (Tex.
1908))); see also Austin, 465 S.W.3d at 216 (“As Austin’s employer, Kroger
owed Austin . . . the duty to provide [him] with necessary instrumentalities.”).
Indeed, specific instrumentalities are surely necessary for the safe
performance of ordinary, routine jobs. See, e.g., Martinez, 515 S.W.2d at 264–
66 (holding that there was some evidence to support a finding that an employer
breached its duty to provide necessary instrumentalities to a welder when it
failed to provide the employee with appropriate clamps for a welding job);

6 It would also largely insulate nonsubscribing employers from liability. This effect,
in turn, would create perverse incentives encouraging employers to opt-out of the workers
compensation program, contrary to the design of the TWC Act. See Austin, 746 F.3d at 197.
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Kroger Co. v. Milanes, 474 S.W.3d 321, 339 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (affirming judgment that an employer breached its duty to
provide necessary instrumentalities to a “meat cutter” when it provided a dull
blade to the employee); Springs, 476 S.W.3d at 586, 589 (affirming judgment
that an employer breached its duty to provide necessary instrumentalities to a
manufacturing employee when it provided a defective manufacturing
machine).
We likewise do not agree that an employee’s injuries sustained during
the performance of his customary work is unforeseeable as a matter of law
when the employer failed to provide necessary instrumentalities to the
employee. Under Texas law, “[f]oreseeability means that an actor, as a person
of ordinary intelligence, should have anticipated the dangers that his negligent
act created for others.” Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 460 (Tex.
App.—Dallas 2007, pet denied). Texas courts “have consistently held that
foreseeability turns on existence of a general danger, not awareness of the
exact sequence of events that produces the harm.” Nabors Well Servs., Ltd. v.
Romero, 456 S.W.3d 553, 565 (Tex. 2015) (citing Mellon Mortg. Co. v. Holder,
5 S.W.3d 654, 655 (Tex. 1999) (plurality) (collecting cases)).
The general danger created by failing to provide necessary
instrumentalities is obvious to any person of ordinary intelligence, and it is not
dependent on whether the employee is performing customary work. Cf. id.
(explaining that there is a duty to guard against the risks of driving because
“[t]he general danger of driving is obvious to everyone,” and thus foreseeable).
If an instrumentality is necessary for the safe performance of an employee’s
job, the employee’s risk of suffering injuries related to those safety concerns
necessarily increases when the employer fails to provide the necessary
instrumentality. See, e.g., Milanes, 474 S.W.3d at 329, 339 (breaching duty to
provide necessary instrumentalities when a dull saw blade caused meat to

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jump and pull an employee’s hand into a band saw and “the probability of meat
jumping or rolling increases when the saw’s blade is dull”). Contrary to
Kroger’s assertion, under these circumstances, the employer is not reasonable
in expecting the work to proceed like every other day without injury,
particularly when the necessary instrumentality is normally provided every
other day.
Here, Kroger normally provided Spill Magic to Austin to help him clean
spills. On the day of his injury, Kroger asked Austin to clean “whatever mess”
the annual condenser cleaning created, which included the “brownie oily
looking substance” that Austin encountered in the bathroom. Kroger did not,
however, provide him with Spill Magic that day to help clean the spill.
Assuming the jury finds that Spill Magic is, in fact, a necessary
instrumentality for safely cleaning spills, it should have been foreseeable to
Kroger that failing to provide Spill Magic would place Austin at risk of a slip
and fall. Cf. Austin v. Kroger Texas L.P., 182 F. Supp. 3d 633, 642 (N.D. Tex.
2016) (“[A] large, oily spill on the ground is undeniably a hazardous condition.
But when an employer provides an employee like Austin with
instrumentalities to encounter the condition, the instrumentalities adjust the
apparent risk.”).
Because nonsubscribing employers owe their employees a duty to
provide necessary instrumentalities to safely perform their customary work,
and because it was foreseeable that Austin might slip and fall if Kroger failed
to provide him necessary equipment to clean a spill, we conclude that the
district court improperly granted summary judgment on this ground. 7

7 Kroger also argues that the Supreme Court of Texas already found that Kroger
cannot be liable for Austin’s injuries because he was performing his customary work. This
argument is misplaced. The Supreme Court of Texas did not address whether such a
customary work exception applies to an employer’s duty to provide necessary
instrumentalities. Indeed, it expressly declined to do so. Austin, 465 S.W.3d at 216 n.23.
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C. Issue of Material Fact as to Causation
The final reason the district court granted Kroger’s motion for summary
judgment was that it concluded Austin had no evidence to support the element
of causation. The district court found that Kroger carried its summary
judgment burden as to causation when it alleged that Austin had “no evidence
that, more likely than not, Spill Magic would have prevented his fall.”
Although Austin provided an expert report on causation to Kroger prior to
Kroger filing its “no evidence” summary judgment motion, he did not file the
expert report with the district court until he moved for reconsideration of the
interlocutory order denying him leave to file a surreply. Austin did not attach
any evidence to his response to Kroger’s summary judgment motion or his
subsequent motion for leave to file a surreply, opting instead to rely on his own
testimony about Spill Magic’s effectiveness as a cleaning agent. The district
court rejected Austin’s “opinion testimony” about Spill Magic’s effectiveness,
explaining that, “[i]n a case like this one, where there is no medical testimony
linking the alleged negligence to the injury,” Austin needed to provide expert
testimony to satisfy his burden. Significantly, the district court also refused to
consider the “belatedly-submitted expert report” on causation.
Even though Austin submitted that report on causation for the first time
in his motion for reconsideration, the expert report was not new to Kroger.
Kroger already had the report at the time it filed its “no evidence” summary
judgment motion. 8 In his motion for reconsideration, Austin explained that

Rather, the court addressed exceptions to premises liability and refused to create an
exception to the general premises liability rule that an employer does not have a duty to warn
employees of dangers that are open and obvious or already known to the employee. Id. at
213–14. Both this court and the Supreme Court of Texas have made clear that Austin’s
necessary instrumentalities claim is independent of his premises liability claim. See Austin,
614 F. App’x at 784; Austin, 465 S.W.3d at 216.
8 The expert report concluded that “Kroger’s failure to provide Spill Magic and Slip

resistant foot wear contributed to or was a cause of Austin’s slip, fall and injuries.” The
expert also executed a declaration, which was attached to his report, that explained the key
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his “good-faith reliance on existing case law” led him to believe that, under
federal law, Kroger could not rely on a “no evidence” summary judgment
motion and thus the burden had not shifted to him to come forward with
evidence creating an issue of material fact on causation. 9 Austin also seemed
to argue that Kroger would not be prejudiced by allowing him to supplement
the record with the expert report because (1) Kroger received a copy of the
expert report about a week before it filed its motion for summary judgment and
(2) Austin would not oppose a surrebutal, allowing Kroger to have the last
word. The district court concluded that “Rule 59(e) demands more than this,”
and, in the same memorandum opinion and order granting summary judgment
to Kroger, declined to reconsider the interlocutory order denying Austin’s
motion to file a surreply.
Austin first maintains that the district court erred when it decided that
Kroger successfully shifted the summary judgment burden to Austin to
produce evidence on the issue of causation. Specifically, Austin argues that
federal law does not allow for “no evidence” summary judgment motions, but
instead requires Kroger to point to evidence in the record showing no issue of
material fact on causation. Under federal law, however, it has long been the
rule that when the nonmovant has the burden of proof at trial, the moving
party may make a proper summary judgment motion, thereby shifting the
summary judgment burden to the nonmovant, with an allegation that the

findings of the expert report and concluded that “it is my opinion that Kroger’s failure to
provide Austin with ‘Spill Magic’ and/or ‘Shoes for Crews’ was a substantial factor in Austin’s
slip, fall, and the injuries that he suffered as a result.”
9 In Austin’s reply in support of his motion for leave to file a surreply, he quoted the
following statement of law from Royal Surplus Lines Insurance Co. v. Brownsville
Independent School District as an example of the case law relied upon: “[T]he concept of a ‘no
evidence’ summary judgment neither accurately describes federal law nor has any particular
import in the vernacular of federal summary judgment procedure.” 404 F. Supp. 2d 942, 948
(S.D. Tex. 2005).
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nonmovant has failed to establish an element essential to that party’s case.
See, e.g., Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999)
(“When a moving party alleges that there is an absence of evidence necessary
to prove a specific element of a case, the nonmoving party bears the burden of
presenting evidence that provides a genuine issue for trial.”) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)); see also Little v. Liquid Air
Corp., 37 F.3d 1069, 1075, 1076 n.16 (5th Cir. 1994) (en banc) (noting that the
party moving for summary judgment is not required to “negate the elements of
the nonmovant’s case,” but may “satisfy [its] burden under Celotex” by
“assert[ing the] absence of facts supporting the elements of the plaintiffs’
theory of recovery”). Kroger satisfied its summary judgment burden when it
alleged that there was no evidence of causation—an element essential to
Austin’s ordinary negligence claim. See W. Invs., Inc. v. Urena, 162 S.W.3d
547, 550 (Tex. 2005). Therefore, Austin was required to present causation
evidence to survive summary judgment. 10
Austin next argues that even if the summary judgment burden shifted
to him, the district court also erred when it denied both his motion to file a
surreply and his motion for reconsideration. As to Austin’s motion to file a

10 Austin contends that our decision in Ashe v. Corley dictates a different outcome
here. See 992 F.2d 540 (5th Cir. 1993). In Ashe, we held that the movant “totally failed to
satisfy [its] burden as set out in Celotex,” as its motion for summary judgment “failed to raise
any factual issues at all, other than in the most conclusory terms. And a mere conclusory
statement that the other side has no evidence is not enough to satisfy a movant’s burden.”
Id. at 544. Ashe highlights an important distinction—while it is true that a movant cannot
support a motion for summary judgment with a conclusory assertion that the nonmovant has
no evidence to support his case, a movant may support a motion for summary judgment by
pointing out that there is no evidence to support a specific element of the nonmovant’s claim.
See Celotex, 477 U.S. at 322–23. The movant in Ashe did not point to a specific element on
which the nonmovant had the burden of proof at trial and allege that there was insufficient
evidence to prove that element at trial. Ashe, 992 F.2d at 544 (“The County’s motion for
summary judgment failed to point out an absence of proof on any factual issue.”). Because
Kroger’s motion did point to a specific element—causation—the burden shifted to Austin to
demonstrate that there was a genuine dispute for trial. Thomas, 174 F.3d at 644.
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surreply, the district court did not abuse its discretion because Kroger did not
raise any new arguments in its reply brief, and Austin did not discuss his
expert report on causation. See, e.g., Williams v. Aviall Servs. Inc., 76 F. App’x
534, 535 (5th Cir. 2003). As to Austin’s motion for reconsideration, however,
the district court applied Federal Rule of Civil Procedure 59(e) when it should
have applied Federal Rule of Civil Procedure 54(b). Rule 54(b) is less stringent
than Rule 59(e) and does not “demand more” than what Austin did to warrant
reconsideration. The district court therefore abused its discretion by relying
on the wrong rule to deny Austin’s motion for reconsideration.
Rule 59(e) governs motions to alter or amend a final judgment; Rule 54(b)
allows parties to seek reconsideration of interlocutory orders and authorizes
the district court to “revise[] at any time” “any order or other decision . . . [that]
does not end the action,” FED. R. CIV. P. 54(b). Because the district court was
not asked to reconsider a judgment, the district court’s denial of Austin’s
motion to reconsider its order denying leave to file a surreply should have been
considered under Rule 54(b). See Cabral v. Brennan, No. 16-50661, 2017 WL
1314928, at *2 & n.3 (5th Cir. Apr. 10, 2017) (finding harmless error when the
court granted an interlocutory motion for reconsideration after applying the
“more exacting” standard of Rule 59 because the losing nonmovant did not
“explain how he could have been harmed by the procedural error” of applying
a higher burden to the movant).
Under Rule 54(b), “the trial court is free to reconsider and reverse its
decision for any reason it deems sufficient, even in the absence of new evidence
or an intervening change in or clarification of the substantive law.” Lavespere
v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (citing
FED. R. CIV. P. 54(b)), abrogated on other grounds, Little, 37 F.3d at 1075 n.14;
see also McClung v. Gautreaux, No. 11-263, 2011 WL 4062387, at *1 (M.D. La.
Sept. 13, 2011) (“Yet, because the district court is faced on with an

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interlocutory order, it is free to reconsider its ruling ‘for any reason it deems
sufficient, even in the absence of new evidence or an intervening change in or
clarification of the substantive law.’” (quoting Brown v. Wichita Cty., No. 7:05-
cv-108-0, 2011 WL 1562567, at *2 (N.D. Tex. Apr. 26, 2011))). Rule 59(e),
however, “serve[s] the narrow purpose of allowing a party to correct manifest
errors of law or fact or to present newly discovered evidence,” and it is “an
extraordinary remedy that should be used sparingly.” Templet v. HydroChem
Inc., 367 F.3d 473, 479 (5th Cir. 2004) (alteration in original) (quoting Waltman
v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)).
The D.C. Circuit recently summarized the distinction between Rule 54(b)
and Rule 59(e) as follows:
Rule 59(e), understandably, sets a high threshold for
parties to raise a new argument for the first time after
judgment has already been entered. . . . In contrast,
Rule 54(b)’s approach to the interlocutory presentation
of new arguments as the case evolves can be more
flexible, reflecting the “inherent power of the
rendering district court to afford such relief from
interlocutory judgments as justice requires.”
Cobell v. Jewell, 802 F.3d 12, 25–26 (D.C. Cir. 2015) (internal citations omitted)
(quoting Greene v. Union Mutual Life Ins. Co. of Am., 764 F.2d 19, 22 (1st
Cir.1985) (Breyer, J.)). The D.C. Circuit held that applying Rule 59(e)’s “strict
prohibition” against considering new arguments that could have been raised
before the district court’s ruling was “unwarranted” and “of legal consequence”
when erroneously applied to interlocutory orders. Id. Similarly, the Fourth
Circuit vacated a partial summary judgment order and remanded for
reconsideration of a motion to reconsider under Rule 54(b), when the district
court erroneously denied the motion for failing to satisfy the requirements of
Rule 59(e). Saint Annes Dev. Co. v. Trabich, 443 F. App’x 829, 831–32 (4th Cir.
2011). The Fourth Circuit explained that “[t]he power to reconsider or modify

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interlocutory rulings ‘is committed to the discretion of the district court,’ and
that discretion is not cabined by the ‘heightened standards for reconsideration’
governing final orders.” Id. at 832 (quoting Am. Canoe Ass’n v. Murphy Farms,
Inc., 326 F.3d 505, 514–15 (4th Cir. 2003)).
Here, the district court denied Austin’s motion for reconsideration
because the expert report “existed at the time he filed that Motion,” and “Rule
59(e) demands more than this.” This explanation evinces a clear reliance on
the heightened standard of Rule 59(e) to deny Austin’s motion for
reconsideration. Had the district court correctly applied the more flexible Rule
54(b), it would have had the discretion to reconsider the motion for leave to file
a surreply in light of both the newly filed expert report and Austin’s equitable
arguments, and would not have been constrained by whether the expert report
previously existed. See Lavespere, 910 F.2d at 175. Because the district court
abused its discretion, we vacate the portion of the district court order finding
no material fact issue as to causation and remand for the district court to
reconsider Austin’s motion for reconsideration under the more flexible Rule
54(b). Cf. Marlin v. Moody Nat’l Bank, N.A., 533 F.3d 374, 378 (5th Cir. 2008)
(vacating sanctions that did not comply with Rule 11 and remanding the case
for proceedings consistent with Rule 11); United States v. Thibodeaux, 663 F.2d
520, 522 (5th Cir. Nov. 1981) (vacating the denial of a motion to amend a
magistrate order where the district court erroneously applied a deferential
appellate review standard and remanding for the district court to apply a less
deferential standard); see also Saint Annes, 443 F. App’x at 831–32.
On remand, the district court should construe the procedural rules with
a preference toward resolving the case on the merits and avoiding any
dismissal based on a technicality. See FED. R. CIV. P. 1 (requiring the Rules to
be “construed, administered, and employed by the court . . . to secure the just,
speedy, and inexpensive determination of every action and proceeding”

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(emphasis added)); Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550 (2010)
(noting that the Federal Rules of Civil Procedure express a general preference
for “resolving disputes on their merits”); Edwards v. Occidental Chem. Corp.,
892 F.2d 1442, 1445 (9th Cir. 1990) (“[T]he ‘principal function of procedural
rules should be to serve as useful guides to help, not hinder, persons who have
a legal right to bring their problems before the courts,’ and ‘decisions on the
merits are not to be avoided on the basis of mere technicalities.’” (quoting
Schiavone v. Fortune, 477 U.S. 21, 27 (1986))). The district court should also
weigh the interests of justice when deciding whether to permit a surreply and
allow the expert report to supplement the record. See, e.g., La Union del Pueblo
Entero v. Fed. Emergency Mgmt. Agency (FEMA), No. 1:08-CV-487, 2016 WL
6915962, at *1 (S.D. Tex. Apr. 12, 2016) (“The Court finds that the interests of
justice favor granting Plaintiffs leave to advance the arguments raised in their
proposed surreply.”). Given both the expert report’s legal significance as the
only competent evidence supporting causation—which is Austin’s only
remaining hurdle to surviving summary judgment—and the lack of prejudice
to Kroger—which had the report prior to filing its “no evidence” motion for
summary judgment and could submit a surrebuttal—the interests of justice
seem to weigh in favor of allowing the expert report to supplement the record.
We do not decide that issue today, however, but instead leave it to the district
court to make the determination in the first instance.
IV. CONCLUSION
The judgment of the district court is REVERSED IN PART, VACATED
IN PART, and REMANDED for further proceedings consistent with this
opinion. Kroger had a duty to provide Austin with a necessary instrumentality
for the safe performance of his work while he was performing “customary work”
and the evidence created a genuine issue of material fact as to whether Spill
Magic was a necessary instrumentality. Therefore, we reverse the district

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court’s judgment on these two issues. Although the district court correctly
determined that Kroger shifted the summary judgment burden to Austin on
the element of causation, the district court nevertheless abused its discretion
when it denied Austin’s motion for reconsideration under Rule 59(e) instead of
the more flexible Rule 54(b). In doing so, the district court excluded significant
evidence supporting causation. Accordingly, we vacate this portion of the
judgment and remand the case to the district court with instructions to
(1) apply Rule 54(b) to the motion for reconsideration and (2) weigh the
interests of justice when deciding whether to allow supplementation of the
record with the earlier-produced but late-filed expert report.

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