Debtor May Not Pursue Unscheduled Employment Discrimination Claim

applicability of judicial estoppel," observing that "the circumstances under which however, robinson has the benefit of making this argument in hindsight. when judicial estoppel may appropriately be invoked are probably not reducible to any 3 mockery of the judicial system. the district court agreed and granted summary due to her failure to disclose her claim against tyson to the bankruptcy 2 defrauding the courts and not from any actual fraudulent result. her assets. additionally, the district court found robinson had a motive to conceal robinson submitted her bankruptcy schedules under oath, she also submitted that (february 5, 2010) brenda robinson, discrimination claim. i think she probably also had a motive to conceal; at least 7 inconsistent with the earlier position; (2) whether the party succeeded in motive to conceal seems to me to be inconsistent with the summary judgment see burnes v. pemco aeroplex, inc., 291 f.3d 1282, 1285 (11th cir. 2002). in employment discrimination claim. in april 2002, brenda robinson voluntarily 9 tyson. of the moment. new hampshire v. maine, 532 u.s. 742, 749, 121 s. ct. 1808, factors typically inform the decision: (1) whether the present position is clearly dismissed."1 mockery-of-the-judicial system prong of the test for invoking judicial estoppel. 1814 (2001). specifically, judicial estoppel is designed to "prevent a party from 1286. this duty applies to proceedings under chapter 13 and chapter 7 alike iii. discussion the district court noted robinson's challenged history regarding her credit u.s.c. � 1981. appeal from the united states district court when asked whether she had any suits or administrative proceedings pending, was also a case in the summary judgment posture, and it seems to me that there too robinson brought her claim under title vii of the civil rights act of 1964, the civil2 factors for establishing the bar of judicial estoppel. "first, it must be shown that undisclosed claim or has no motive for their concealment." 348 f.3d 1289, 1295 her payments increased to a rate "beyond her ability to pay." robinson then inconsistent position. disclose changes in her asset schedule. additionally, robinson claims she had no specifically states that, "the property of the estate shall not vest in the debtor until law constitutes inconsistent positions under oath. ajaka, 435 f.3d at 1344. when d. additional factors the creditors a fair opportunity to claim what was rightfully theirs. of course, the versus actions, both taken under oath, are clearly inconsistent. therefore, in accordance john ley fact that she completely paid up all creditors by july 9, 2007 gives rise to a filed a worker's compensation claim against his employer, drummond coal. the general formulation of the principle." 291 f.3d at 1285 (citing new hampshire v. complete repayment. however, full monetary repayment does not necessarily pending, the claim vested in the bankruptcy estate and robinson had a duty to with ajaka, robinson took inconsistent positions under oath and the issue of no. 08-14991 there were legitimate questions regarding repayment. in addition to the general statutory duty, in this case there was a court dismissed her chapter 13 case because her payments increased to a rate "beyond � 1328 refers to 11 u.s.c. � 1328, which outlines the requirements for discharge.1 i concur because i believe binding panel precedent dictates that result, but i intent is ordinarily a question of fact for the jury. see, e.g., chanel, inc. v. italian while in the midst of a chapter 13 bankruptcy plan, plaintiff-appellant district court focused on the nine month window between when robinson brought make a mockery of the judicial system from the record. this finding of fact is banc or by the supreme court." united states v. vega-castillo, 540 f.3d 1235, made a clear error of judgment, or has applied the wrong legal standard." united held to the clearly erroneous standard and robinson has not presented sufficient before marcus, fay and anderson, circuit judges. acting clerk _________________________ speculative recovery considering the fact that she paid off her debts in full. inconsistent positions under oath because she did not have a continuing duty to circumstances change"). therefore, under the established law of this circuit, a the circumstances of a particular case when considering the applicability of this 2003). this finding has not left us with the definite and firm conviction that a mistake has party in a previous preceding." 18 moore's federal practice � 134.30 (3d ed. the bankruptcy plan based on robinson's failure to stay current on her payments. 14 burnes v. pemco aeroplex, inc., 291 f.3d 1282 (11th cir. 2002). incorporating constitutes contrary evidence in favor of estoppel, it does not, in my judgment, so when considering a party's intent for the purpose of judicial estoppel, we our court has emphasized the importance of full and honest disclosure in chapter 13 debtor has a statutory duty to disclose changes in assets. circumstances under which a court might invoke judicial estoppel will vary, three there are two interlaced events in this case; a bankruptcy proceeding and an activewear of fla., inc., 931 f.2d 1472, 1476 (11th cir. 1991). however, barger default. before the hearing, robinson brought her payments current and the b. inconsitent positions under oath against tyson, she had a sworn duty to disclose that suit to her bankruptcy estate. statutory duty to disclose all assets, or potential assets to the bankruptcy court. 11 plan to reflect that pending discrimination claim constituted the taking of an february 5, 2010 same holds true for the pending worker's compensation claim. overwhelm the reasonable inferences favoring robinson to eliminate the genuine robinson represented that she had no legal claims to the bankruptcy court while because if "she realized any proceeds from the suit prior to the discharge of her her claims in order to keep any settlement proceeds and this finding was reasonable require "intentional contradictions, not simple error or inadvertence." am. nat'l she had a claim pending against tyson, she has yet to receive any monies from that circumstances of a particular case. (concluded that since judicial estoppel is intended to protect the judicial system, statutory disclosure duty is `inadvertent' only when, in general, the debtor either compensation claim against drummond coal when she initially declared doctrine." id. at 1286. i fear that we have created an inflexible formula for mockery of the judicial system." id. at 1285. burnes recognized that these factors for the eleventh circuit asserting a claim in a legal proceeding that is inconsistent with a claim taken by the management. robinson was forced to abandon her initial chapter 13 case because and waldron v. brown, 536 f.3d 1239, 1244 (11th cir. 2008) (all of which are disclose is a continuing one that does not end once the forms are submitted to the qualified property acquired by robinson during the pendency her bankruptcy employer, defendant-appellee tyson foods. the district court granted summary automatic stay imposed by the bankruptcy court. therefore, the district court abuse of discretion, with the finding of facts held to clear error. an abuse of ("tyson"). in her letter of resignation, robinson claimed that she had been [publish] activity, robinson clearly should have disclosed her discrimination claim, but the judgment for tyson. this appeal followed. the only issue on appeal is whether _______________________ lawsuit. the questions regarding repayment coupled with the chance of monetary 8 mockery of the judicial system, that prong requires "intentional contradictions, not her claim against tyson and when she was dismissed from bankruptcy. rightfully recognized that at the time she choose not to disclose her pending suit, considering judicial estoppel for bankruptcy cases, the debtor's failure to satisfy its be inferred from the record. burnes, 291 f.3d at 1285. this inference is whether robinson's failure to disclose evinces an intent to make a mockery of the anderson, circuit judge, concurring: that a chapter 13 debtor has a statutory duty to amend her financial schedule to continuing duty to disclose changes in her bankruptcy asset schedule. robinson in september 2005, robinson resigned her employment with tyson foods issue of material fact. thus, mandating a finding that robinson's failure to reflect a pending claim while simultaneously pursing that claim in another court of on the discrimination claim was imminent, or even realistic. although robinson's for the northern district of alabama i write separately to express my concern related to our application of the qualifies as an asset. parker v. wendy's intern., inc., 365 f.3d 1268 (11th cir. amend [her] financial statements if circumstances change." burnes, 291 f.3d at when robinson filed her claim against tyson while her bankruptcy was still (11th cir. 2003). i agree that it is undisputed that robinson had knowledge of her brenda robinson brought an employment discrimination claim against her former evidence to overturn this deferential burden. for the foregoing reasons, summary u.s. court of appeals the district court abused its discretion in applying judicial estoppel. inconsistent position would derive an unfair advantage. id. at 750-51, 1815-16. district court recognized that this was not robinson's first mistake regarding her failure to disclose her workman's compensation claim in the earlier bankruptcy in may 2007, one of robinson's creditors moved for a dismissal of her court's application of judicial estoppel for abuse of discretion. talavera v. school 10 ins. co., 245 f.3d 1321, 1325 (11th cir. 2001). however, we review the district decided upon the theory of judicial estoppel, the applicable standard of review is fay, circuit judge: bankruptcy. time period, she would have been able to keep the proceeds for herself and denied judicial estoppel does not require that the nondisclosure must lead to a different claim. bolstering this inference is the fact that there is no evidence that recovery the law is clear that robinson had a duty to disclose substantial changes in ajaka v. brooksamerica mortgage corp., 453 f.3d 1339, 1344 (11th cir. 2006) comcar industries, inc., 321 f.3d 1289, 1291 (11th cir. 2003). applying our two-prong test, "courts must always give due consideration to all of those asserting it need not demonstrate individual prejudice). the application of 5 13 part of the bankruptcy estate and going to her creditors to satisfy her debts." the reviewing court on the entire evidence is left with a definite and firm conviction bankruptcy . . . she could have kept the proceeds for herself without their becoming lacks knowledge of the undisclosed claims or has no motive for their 6 robinson took inconsistent positions under oath only if she had a judgment. evidence of lack of intent to create a genuine issue of material fact regarding in the united states court of appeals ________________________ disclosure duty is `inadvertent' only when a party either lacks knowledge of the revealed that she had not disclosed her suit against tyson to the bankruptcy court. the deposition also revealed that following her husband's death in 1997, robinson district court's findings of fact for clear error. levinson v. reliance standard life bankruptcy court; rather the debtor must amend [her] financial statements if filed i. facts and proceeding below: considered a factual finding by the court and held to a clearly erroneous standard. bankruptcy in 2002. specifically asked if she had any pending claims, robinson the first or second court was mislead and; (3) whether the party advancing the been made and as such, is not clearly erroneous. reasoned that because robinson failed to disclose her employment discrimination functioning." id. a debtor seeking shelter under the bankruptcy laws has a the law is clear that "[u]nder the prior precedent rule, we are bound to the discrimination case occurred between may and july 11, 2007. during that tyson foods, inc., reason to mislead the court as she paid off her debt in full. we hold that judicial robinson brought a civil suit against tyson, alleging unlawful employment 595 (bankr. s.d. ga. 2000). therefore, we find that robinson had both a statutory states v. frazier, 387 f.3d 1244, 1259 (11th cir. 2004) (en banc). as we noted in burnes, however, the supreme court has refused to gain convinced the district court that robinson had a motive to conceal her claims. ii. standards of review defendant-appellee. determining that the taking of an inconsistent position was calculated to make a 2007). sufficient enough to affect the applicability of judicial estoppel because the need defaulted on her second bankruptcy plan, causing a creditor to seek relief from the by failing to update her bankruptcy schedule to reflect her pending claim, robinson argues that our current case law mandating a continuing statutory duty to disclose can be traced back to dicta in burnes and incorrectly perpetuated subjected to "harassment, racial abuse and intimidation." in october 2006, the standards enumerated by the supreme court, burnes outlined two primary additionally, robinson obviously had some expectation of monetary damages. for complete and honest disclosure exists in all types of bankruptcies." de leon v. preclude a finding of a motive to conceal. see burnes, 291 f.3d at 1286 end once the forms are submitted to the bankruptcy court; rather the debtor must on the record presented. the district court then inferred the requisite intent to 15 12 issue of motive is the determining factor in this case. robinson contends she second bankruptcy plan proposed complete repayment to both secured and maine, 532 u.s. 742, 750-51, 121 s. ct. 1808, 1815 (2001)). we added that, in because "any distinction between the types of bankruptcies available is not disclosure. casanova v. pre solutions, inc., 228 fed. appx. 837, 841 (11th cir. iv. conclusion reflect her current assets. as such, we hold that robinson had a statutory duty to posture of this case and seems to me to conflict with our well-established law that bd. of palm beach county, 129 f.3d 1214, 1216 (11th cir. 1997). as this case is reasonable inference that there was no value to the creditors in the discrimination and such an inference is not clearly mistaken. robinson's deposition in september 2007. during the deposition, robinson her bankruptcy plan, repaying all of her debts and receiving a full discharge from the purpose of judicial estoppel is "to protect the integrity of the judicial d. c. docket no. 06-02274-cv-ar-s motion was withdrawn. two months later in july of 2007, robinson completed 11 checked "none." robinson has presented no explanation as to why she failed to disclose this claim to the bankruptcy court. the district court found this intentional suit to the bankruptcy court, she had taken inconsistent positions under oath with however, robinson failed to list the claim anywhere on her bankruptcy schedules. reviewing potential motive, the relevant inquiry is intent at the time of non- result in the bankruptcy proceeding. in re superior crewboats, 374 f.3d 330, 335- 17 amend her schedule of assets to reflect her claims against tyson. constructive termination. robinson sought compensatory, punitive and liquidated2 the intent of misleading the court. robinson contends that she did not take and court ordered duty to amend her asset schedules to reflect her claims against the allegedly inconsistent positions were made under oath in a prior proceeding. belonged to her bankruptcy estate and not her personally. basis of judicial estoppel. tyson argued that robinson's non-disclosure generally, we review the granting of summary judgment de novo, and the seems to hold that "the debtor's failure to comply with the bankruptcy code's "establish inflexible prerequisites or an exhaustive formula for determining the claim. robinson contends that the district court cannot penalize her based on a concealment." barger v. city of cartersville, 348 f.3d 1289, 1295-96 (11th cir. society, 343 u.s. 326, 339, 72 s. ct. 690, 698 (1952). omission constituted additional evidence of robinson's intent to conceal claims ordered duty to disclose additional assets. the bankruptcy court's order judgment for tyson foods on the threshold issue of judicial estoppel. the court accordingly, i concur in the judgment because i believe i am bound to do so specifically, the district court found that if robinson's claim had settled in this bankruptcy plan because her payments were delinquent, resulting in a material eleventh circuit the seminal case in the eleventh circuit on the theory of judicial estoppel is follow a prior binding precedent unless and until it is overruled by this court en a discharge is granted under � 1328 or the case is dismissed." therefore, all simple error or inadvertence." as judge fay's opinion notes, our barger opinion the plan in may 2002, stating, in relevant part, that "the property of the estate shall ajaka held that failure to timely amend a chapter 13 reorganization plan to in preparation for her employment discrimination suit, tyson took recovery, as she sought compensatory, punitive and liquidated damages in her 4 judicial system. the only activity in the bankruptcy case during the pendency of rights act of 1991, and multiple alabama state law provisions. 42 u.s.c. � 2000 et seq., 42 circumstances of the case in addition to factors specifically enumerated. the lacked motive to conceal her claims against tyson as her chapter 13 plan proposed posture of the case is summary judgment. in my judgment, there is sufficient inconsistent position in a later proceeding would create the perception that either estoppel was appropriate and affirm the district court's grant of summary her ability to pay," and filed a second chapter 13 bankruptcy proceeding. the bankruptcy proceedings. robinson failed to disclose her pending worker's circumstances of the particular case. see id. it is undisputed that robinson had knowledge of her claims. therefore, the it is undisputed that a pending lawsuit seeking monetary compensation constituted inconsistent positions under oath that were calculated to make a unsecured creditors over a period of sixty months. a bankruptcy judge confirmed while an estopped party's contradiction must be intentional, such intent may robinson was in the process of repayment and the trustee was moving to dismiss there probably was a genuine issue of material fact as to the requisite intent. 16 robinson objects to the district court's reasoning, stating that even though bankruptcy proceedings, stating that it is "crucial" to the system's "effective judicial estoppel centers on her intent. second, such inconsistencies must be shown to have been calculated to make a 2004). it is also undisputed that such an asset qualifies as property of the a. duty to disclose by precedent. simultaneously pursuing her legal claim against tyson in the district court. these claim was still pending when robinson declared bankruptcy in april 2002. disclose was not inadvertent merely because she had knowledge and a theoretical notice the suit to all creditors. see 11 u.s.c. � 1303; in re mosley, 260 b.r. 590, a finding is clearly erroneous when "although there is evidence to support it, the are not exhaustive; rather, courts must always give due consideration to the judgment in favor of tyson foods is affirmed. at the time she choose not to disclose her pending suit against tyson, bankruptcy estate. �11 u.s.c. 1306; waldron, 536 f.3d at 1242. as a result, bank of jacksonville v. fdic, 710 f.2d 1528, 1536 (11th cir. 1983). "in process by prohibiting parties from changing positions according to the exigencies became the law of this circuit in the holdings of de leon v. comcar industries, 36 (5th cir. 2004). rather, the motive to conceal stems from the possibility of u.s.c. ��521(1), 541(a)(7). "the duty to disclose is a continuing one that does not persuading a court to accept the earlier position, so that judicial acceptance of the not vest in the debtor until a discharge is granted under � 1328 or the case is she would update those schedules as required. therefore, when robinson filed suit write separately to voice my concerns. i agree with the opinion for the court that as law by subsequent cases. however, even if the reasoning in burnes is dicta, it contends that as a chapter 13 debtor, she did not have a continuing duty to disclose in accordance with burnes, the district court considered the specific plaintiff-appellant, 2008). in new hampshire v. maine, the supreme court recognized that while the court, tyson contended that robinson was precluded from pursuing her suit on the her assets to the bankruptcy court. we disagree. robinson had a continuing duty to disclose the existence of her employment robinson checked "none" on the schedule disclosure forms. chapter 13 bankruptcy cases citing burnes for the proposition that "the duty to "inadvertence" that prevents courts from thoroughly examining all of the practices and mistreatment on the basis of race severe enough to constitute that a mistake has been committed." united states v. oregon state medical ________________________ c. mockery of the judicial system i think this formula presents problems in particular where, as here, the the district court found that robinson had a motive to conceal her claim there is a theoretical motive. thus, i am bound by precedent to affirm this case. discrimination claim. i also agree that her failure to timely amend her chapter 13 discretion review requires us to "affirm unless we find that the district court has 1236 (11th cir. 2008) (per curiam). as noted above, this circuit's precedent holds