United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION AND DISMISSAL ORDER
N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE
civil action proceeds before the court on Defendants'
Motion for Summary Judgment. (Doc. 47). In their Motion,
Defendants argue that judicial estoppel merits dismissal of
this case because the Plaintiff failed to list the lawsuit as
an asset in a bankruptcy case he filed. Based upon the
following discussion, the court GRANTS the
to the Federal Rules of Civil Procedure, “[t]he 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. Rule 56(a). Defendants, as the party seeking
summary judgment, bear the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrates
the absence of a genuine issue of material fact. Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991) (quoting Celotex Corp. v. Catrett, 477
U.S.317, 323 (1986)).
non-moving party demonstrates a genuine issue of material
fact by producing evidence by which a reasonable fact-finder
could return a verdict in its favor. Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th
Cir. 2007) (citation omitted). In reviewing whether the
non-moving party has met its burden, the court must stop
short of weighing the evidence and making credibility
determinations of the truth of the matter; one should credit
the non-movant's evidence and draw all justifiable
inferences in its favor. Tipton v. Bergrohr
GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992)
(internal citations and quotations omitted). However,
speculation or conjecture cannot create genuine issue of
material fact. Cordoba v. Dillard's, Inc., 419
F.3d 1169, 1181 (11th Cir. 2005). A “mere scintilla of
evidence” in support of the non-moving party also
cannot overcome a motion for summary judgment. Young v.
City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004)
March 9, 2016, Plaintiff, proceeding pro se, commenced this
action by filing his Complaint against Defendants. (Doc. 1).
Plaintiff's most recent amended complaint alleges breach
of fiduciary responsibility, breach of contract, and
negligence, and Plaintiff seeks compensatory and punitive
damages in the amount of $625, 000. (Doc. 34). On September
21, 2016, Plaintiff filed a petition for bankruptcy
protection under Chapter 13 of the Bankruptcy Code in the
Bankruptcy Court for the Northern District of Alabama. On
page 6 of that petition, the signature page, Plaintiff signed
his name electronically and declared “under penalty of
perjury that the information provided [was] true and
correct.” (Doc. 48-2 at 6).
A/B requires a debtor to list “claims against third
parties, whether or not [he has] filed a lawsuit or made a
demand for payment, ” and “other contingent and
unliquidated claims of every nature.” (Id. at
15). Plaintiff marked “No” under both categories.
(Id.) Furthermore, plaintiff listed two other pro se
cases under the category for “[a]ny financial assets
you did not already list.” (Id.) Plaintiff did
not list this action in his application. Plaintiff again
declared the information provided in his schedules was true
and accurate under the penalty of perjury. (Id. at
Statement of Financial Affairs instructed Plaintiff to list
“any lawsuit, court action, or administrative
proceeding” filed within one (1) year of his bankruptcy
petition in which he was a party. (Id. at 42).
Plaintiff listed the same two, pro se lawsuits disclosed in
his Schedule A/B but failed to disclose this action.
(Id.) Plaintiff signed the Statement of Financial
Affairs, supposedly verifying all the information contained
therein was “true and accurate.” (Id. at
filed four amended schedules and two amended Statements of
Financial Affairs. (Doc. 48, Exhibits 3-8). Each amendment
required Plaintiff to declare that the information contained
therein was “true and accurate” under the penalty
of perjury; however, he failed to disclose this action in all
six amendments. The bankruptcy court confirmed
Plaintiff's Chapter 13 payment plan on November 17, 2016.
(Doc. 48-9). Upon reviewing the bankruptcy case, Plaintiff
still makes payments under the plan.
April 21, 2017, Defendants filed the motion for summary
judgment currently under consideration. As noted, judicial
estoppel constitutes the grounds for that motion; Defendants
argue that judicial estoppel bars the instant action because
of Plaintiff's failure to disclose its existence in the
bankruptcy petition. (Doc. 48).
argue that they are entitled to dismissal of the case or a
judgment in its favor because the doctrine of judicial
estoppel bars this action. Plaintiff acknowledges that his
initial bankruptcy petition failed to disclose the instant
suit; however, he argues that the doctrine does not apply
because that failure was inadvertent and he has since
rectified the mistake.
estoppel operates as an equitable doctrine, invoked at the
court's discretion, which precludes a party from
asserting a claim in a legal proceeding inconsistent with a
claim made in a previous proceeding. Burnes v. Pemco
Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002).
The doctrine exists “to protect the integrity of the
judicial process by prohibiting parties from deliberately