Timmons v. Scotch Plywood Co.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the defendant's motion for summary judgment. (Doc. 34). The plaintiff declined the opportunity to respond, (Doc. 44), the defendant filed no reply, and the motion is ripe for resolution. After careful consideration, the Court concludes that the motion is due to be granted.

         BACKGROUND

         According to the amended complaint, (Doc. 3), the plaintiff was employed by the defendant. The plaintiff was subjected to a racially hostile work environment and, when he complained, was terminated. The plaintiff asserts claims under Title VII and state law.

         The defendant argues the merits of the plaintiff's claims, but it also asserts those claims are barred by judicial estoppel because the plaintiff did not disclose in his bankruptcy filings the existence of this lawsuit. (Doc. 34 at 9-13). The Court finds the latter argument dispositive.

         DISCUSSION

         “[A] district court may apply judicial estoppel when a two-part test is satisfied: the plaintiff (1) took a position under oath in the bankruptcy proceeding that was inconsistent with the plaintiff's pursuit of the civil lawsuit and (2) intended to make a mockery of the judicial system.” Slater v. United States Steel Corp., 871 F.3d 1174, 1180 (11^th Cir. 2017) (en banc). When these elements are present, a court has “discretion to dismiss the party's claims.” Id. Conversely, “[w]hen a plaintiff intended no deception, judicial estoppel may not be applied.” Id. at 1187.

         Because judicial estoppel is an affirmative defense, ^[1] on motion for summary judgment the defendant must present evidence that, if not controverted, would require a favorable determination of the fact in issue. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11^th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11^th Cir. 1993). The facts described below are so supported.^[2]

         It is uncontroverted that the plaintiff took a position under oath in his bankruptcy proceeding that was inconsistent with his pursuit of this lawsuit. The defendant filed this action on April 2, 2018, seeking compensatory and punitive damages in connection with his allegedly unlawful work environment and termination. (Doc. 1 at 11). Four months later, on August 8, 2018, the plaintiff filed in this District a Chapter 13 bankruptcy petition. In re: Timmons, Bankr. No. 18-03185, Doc. 1. On September 4, 2018, while this action was pending, the plaintiff filed Schedule A/B, which includes over 50 numbered paragraphs describing types of assets for disclosure. Id., Doc. 10. Paragraph 33 requires a debtor to identify any “[c]laims against third parties, whether or not you have filed a lawsuit or made a demand for payment” and lists as examples “[a]ccidents, employment disputes, insurance claims, or rights to sue.” Id. at 13. The plaintiff checked the “no” box. Id. On the same date, the plaintiff filed his Statement of Financial Affairs, which required him to “identify legal actions, repossessions, and foreclosures.” Id. at 36. The plaintiff was asked, “[w]ithin 1 year before you filed for bankruptcy, were you a party in any lawsuit, court action, or administrative proceeding” and was instructed to “list all such matters”; the plaintiff again checked the “no” box. Id. at 38. The plaintiff declared under penalty of perjury that these representations were true and correct. Id. at 35, 41.^[3] Both these representations were in fact incorrect and inconsistent with the plaintiff's pursuit of this lawsuit. Slater, 871 F.3d at 1176 (“[A] plaintiff who has a pending civil lawsuit [who] fails to list the … lawsuit in these [bankruptcy] disclosures effectively takes inconsistent positions in the two judicial proceedings by asserting in the civil lawsuit that he has a claim against the defendant while denying under oath in the bankruptcy proceeding that the claim exists.”).

         “We hold that to determine whether a plaintiff's inconsistent statements were calculated to make a mockery of the judicial system, a court should look to all the facts and circumstances of the particular case.” Slater, 871 F.3d at 1185.

         In particular:

the court may consider such factors as the plaintiff's level of sophistication, whether and under what circumstances the plaintiff corrected the disclosures, whether the plaintiff told his bankruptcy attorney about the civil claims before filing the bankruptcy disclosures, whether the trustee or creditors were aware of the civil lawsuit or claims before the plaintiff amended the disclosures, whether the plaintiff identified other lawsuits to which he was party, and any findings or actions by the bankruptcy court after the omission was discovered.

Id. This listing is not exhaustive, and a court “is free to consider any fact or factor it deems relevant to the intent inquiry.” Id. at 1185 n.9.

         The facts and circumstances presented here demonstrate that the plaintiff's false representations in the bankruptcy proceedings that he was not a plaintiff in any lawsuit were calculated to deceive and thereby make a mockery of the judicial system. First, the plaintiff is modestly sophisticated, as he was a salaried supervisor with the defendant and ran a cattle business on the side.^[4] Second, the Chapter 13 proceeding at issue is the plaintiff's third bankruptcy case, ^[5]demonstrating that he has substantial experience with the applicable ...