Crum, et al v. State of Alabama, et al

Filing 976

OPINION. Signed by Honorable Judge Myron H. Thompson on 7/18/17. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
IN RE: EMPLOYMENT
DISCRIMINATION LITIGATION
AGAINST THE STATE OF
ALABAMA, et al.,
EUGENE CRUM, JR., et al.,
Plaintiffs,
v.
STATE OF ALABAMA, et al.,
Defendants.

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CIVIL ACTION NO.
2:94cv356-MHT
(WO)

OPINION
This

long-running

employment-discrimination

case

against the State of Alabama and various State agencies
is

before

the

court

on

the

defendants’

motion

for

summary judgment on the claims of plaintiffs Katherine
Mathews and Wanda Jackson Speights1 on the basis of

1. In the motion, defendants refer to Wanda
Jackson Speights as “Wanda Jackson Speights Smith.”
However, in a later motion (doc. no. 947), defendants
refer to her without the last name “Smith.”
For
simplicity, the court will refer to her as “Wanda
Jackson Speights” or simply “Speights.”

judicial estoppel.2

Also before the court is a renewed

motion

for

summary

judgment,

or

in

motion

to

dismiss

for

of

prosecution

want

plaintiff Katherine Mathews.
under

28

summary

U.S.C.
judgment

§

1331.

will

be

the

alternative,
against

Jurisdiction is proper
For

the

granted

as

reasons
to

below,

Speights’s

claims, and the court will dismiss Mathews’s claims for
failure to prosecute.

I.

LEGAL STANDARDS

A. Summary Judgment
Summary
shows

that

judgment

is

appropriate

there

no

genuine

is

“if

dispute

the
as

movant
to

any

material fact and the movant is entitled to judgment as
a matter of law.”

Fed. R. Civ. P. 56.

The court must

view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.

Matsushita Elec. Indus. Co. v.

2.
Defendants also move for summary judgment
against plaintiff Deborah Lumpkin.
Her claims have
been dismissed with prejudice, so the motion will be
denied as moot as to her alone.
2

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. Failure to Prosecute
Courts

have

prosecution
41(b).

authority

under

to

Federal

dismiss

Rule

of

for

Civil

want

of

Procedure

“If the plaintiff fails to prosecute or to

comply with [the Federal Rules of Civil Procedure] or a
court order, a defendant may move to dismiss the action
or any claim against it.”

Fed. R. Civ. P. 41(b).

“The

court's power to dismiss is an inherent aspect of its
authority

to

disposition

enforce

of

its

lawsuits.”

orders
Jones

and

v.

ensure

Graham,

prompt

709

1457, 1458 (11th Cir. 1983) (citations omitted).
legal

standard

to

be

applied

under

Rule

F.2d
“The

41(b)

is

whether there is a ‘clear record of delay or willful
contempt and a finding that lesser sanctions would not
suffice.’”
Gratton

v.

Id. at 1459 (citation omitted); see also
Great

(11th Cir. 1999).

Am.

Commc’ns,

178

F.3d

1373,

1375

“[B]ecause dismissal is considered a

drastic sanction, a district court may only implement
3

it,

as

a

last

resort[.]”

World

Thrust

Films

v.

International Family Entertainment, 41 F.3d 1454, 1456
(11th Cir. 1995).

II. BACKGROUND
This
Tolbert

case
and

began

Geneice

on

March

Smith

9,

filed

1993,

suit

when

in

Ellen

this

court

against the Alabama Department of Corrections ("ADOC")
alleging that ADOC had engaged in gender discrimination
against them.
On

Tolbert v. State of Alabama, 93cv287.

November

plaintiffs
intervene

8,

Mathews
in

the

1993,
and
case.

23

individuals,

Speights,
On

filed

December

a

28,

including
motion
1993,

to
the

motion was granted, and a complaint was filed naming
Mathews and Speights.

In 1994, this court consolidated

the Tolbert cases with a number of other cases where
the

plaintiffs

were

making

employment-discrimination

claims against a number of state agencies, and Eugene
Crum was made the lead named plaintiff.

4

Plaintiff Speights has a law degree and practiced
law with Birmingham Area Legal Services before going to
work the State of Alabama.

She worked for the State

both as a Legal Research Aide in the Department of
Revenue’s

legal

Analyst/Planning

department
and

and

Economic

as

a

Federal

Development

Grant

Specialist

for the Alabama Department of Economic and Community
Affairs.
In

the

plaintiffs’

spring

of

attorneys

1993,
in

Speights

this

case

met

with

the

regarding

the

alleged employment discrimination by the State that is
the basis of her claims in this case.

On October 22,

1993,

for

she

filed

a

voluntary

petition

Chapter

7

bankruptcy but did not notify the bankruptcy court in
her filings of her potential discrimination claim in
this case.
after

She did not update her bankruptcy filings

plaintiffs’

attorneys

filed

the

motion

to

intervene or when the complaint was filed naming her as
a plaintiff in this case.

Speights was discharged from

bankruptcy in February 1994.
5

Plaintiff
Department

Mathews

of

began

Economic

working

and

computer programmer in 1986.
no

background

in

administration

and

the

computer technology.

Community

the

Alabama

Affairs

as

a

Unlike Speights, she has

law;

has

for

an

she

studied

associate’s

business

degree

in

In April of 2013, Mathews filed a

voluntary petition for Chapter 7 bankruptcy.

Mathews

did not inform the bankruptcy court of her claim in
this case, and she received a no-asset discharge from
bankruptcy in August 2013.
Defendants filed their motion for summary judgment
against Speights and Mathews on November 25, 2013.

On

December

20,

2013,

plaintiffs’

to

withdraw

from

the

representation

counsel
of

moved

Speights

and

Mathews, and the court granted the motion later that
month.

The

court

then

entered

a

submission

order

giving Speights and Mathews an additional two weeks to
respond to the motion.
court

explained

respond.

in

As they were unrepresented, the

detail

how

the

plaintiffs

Speights and Mathews did not respond.
6

should
More

recently, defendants filed a renewed motion for summary
judgment

against

Speights,

and

a

renewed

motion

for

summary judgment or alternatively, a motion to dismiss
for want of prosecution, against Mathews.

Plaintiffs

have not responded.

III. DISCUSSION
Defendants

argue

that

Speights

and

Mathews

are

judicially estopped from pursuing their claims in this
case

because

they

failed

to

disclose

their respective bankruptcy filings.
is

an

equitable

discretion,

under

doctrine,
which

a

claims

in

Judicial estoppel

invoked
party

the

is

at

the

court's

precluded

from

asserting a claim in a legal proceeding inconsistent
with a claim made in a precious proceeding.

Burnes v.

Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.
2002).

The doctrine exists “to protect the integrity

of

judicial

the

deliberately

process

changing

by

prohibiting

positions

exigencies of the moment.”

parties

according

to

from
the

Id. (quoting New Hampshire
7

v. Maine, 532 U.S. 742, 750 (2001)).

Nevertheless, the

doctrine “ought to be applied with caution ‘because the
harsh results attendant with precluding a party from
asserting a position that would normally be available
to the party.’”

Sumner v. Michelin N. Am., 966 F.

Supp. 1567, 1578 (M. D. Ala.) (Thompson, J.) (quoting
Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996)).
While

“the

circumstances

under

which

judicial

estoppel may appropriately be invoked are probably not
reducible to any general formulation of principle,” New
Hampshire, 532 U.S. at 750, the Eleventh Circuit Court
of Appeals considers two primary factors in applying
the doctrine to a particular case.

“First, it must be

shown that the allegedly inconsistent positions were
made under oath in a prior proceeding.

Second, such

inconsistencies must be shown to have been calculated
to make mockery of the judicial system.”

Burnes, 291

F.3d at 1285 (quoting Salomon Smith Barney, Inc. v.
Harvey,

260

Therefore,

F.3d

judicial

1302,

1308

estoppel
8

may

(11th
be

Cir.

applied

2001)).
only

in

situations

involving

intentional

manipulation

of

the

courts, not when the litigant's contradictory positions
are the “product of inadvertence or mistake.”

Burnes,

291 F.3d at 1287 (quoting Matter of Cassidy, 892 F.2d
637, 642 (7th Cir. 1990)).

Judicial estoppel “looks

toward

Johnson

cold

Transamerica
1973).3
of

the

manipulation.”
Ins.

Co.,

485

F.2d

Service

164,

175

Co.

(5th

v.
Cir.

The “deliberate and intentional manipulation”
courts

required

before

judicial

estoppel

may

properly be invoked can be inferred from the record.
Burnes, 291 F.3d at 1287.
“A debtor seeking shelter under the bankruptcy laws
must disclose all assets, or potential assets, to the
bankruptcy court. 11 U.S.C. § 521(1), and 541(a)(7).”
Burnes

at

1286.

Potential

assets

may

include

“contingent, dependent or conditional” claims, and a
debtor

must

disclose

them

if

she

has

“enough

3. See Bonner v. City of Prichard, 661 F.2d 1206
(11th Cir. 1981, en banc) (adopting as binding
precedent all of the decisions of the former Fifth
Circuit handed down prior to the close of business on
September 30, 1981).
9

information prior to confirmation to suggest that [she]
may have a possible cause of action.”

Youngblood Group

v. Lufkin Fed. Sav. and Loan Ass'n, 932 F. Supp. 859,
867

(E.

D.

Tex.

1996)

citations omitted).

(Heartfield,

J.)

(internal

Such claims include “litigation

which has the potential of arising in a non-bankruptcy
context.”

Id. at 868.

The duty to disclose is a continuing one that does
not end once the bankruptcy is filed; rather, a debtor
must

amend

his

circumstances

or

her

change.

financial

Burnes

at

statements

1286.

“Full

as
and

honest disclosure in a bankruptcy case is ‘crucial to
the

effective

system.’”

functioning

Id.

of

(quoting

the

Ryan

federal

bankruptcy

Operations

G.P.

v.

Santiam-Midwest Lumber Co., 81 F.3d 355, 362 (3d Cir.
1996)).
“When considering a party's intent for the purpose
of

judicial

estoppel,

contradictions,
Robinson

v.

not

Tyson

[courts]

simple
Foods,

error

Inc.,
10

require
or

595

‘intentional

inadvertence.’”
F.3d

1269,

1275

(11th

Cir.

2010)

(quoting

Am.

Nat'l

Bank

of

Jacksonville v. FDIC, 710 F.2d 1528, 1536 (11th Cir.
1983)).

“In

considering

judicial

estoppel

for

bankruptcy cases, the debtor's failure to satisfy its
statutory disclosure duty is ‘inadvertent’ only when,
in general, the debtor either lacks knowledge of the
undisclosed

claims

concealment.”

or

Id.

has

no

(quoting

motive
Barger

for
v.

their

City

of

Cartersville, 348 F.3d 1289, 1295–96 (11th Cir. 2003)).
“While

an

estopped

intentional,
record.”

such

party's

intent

contradiction

may

be

must

inferred

from

be
the

Id. (citing Burnes, 291 F.3d at 1285).

A. Speights
As

this

case

is

before

judgment,

the

court

must

defendants

have

shown

that

the

court

determine
the

on

summary

whether

materials

facts

the
are

undisputed and that they are entitled to judgment as a
matter of law.

Here, the plaintiff has not responded,

so the facts are undisputed.
11

To show entitlement to

judgment as a matter of law, the defendants must show
that Speights made an inconsistent claim under oath and
second that the inconsistency was calculated to make a
mockery of the judicial system.
As
shows

discussed
that

above,

Speights

the

evidence

initially

met

in

the

with

record

attorneys

regarding her discrimination claim in this case in the
spring of 1993.

She filed her bankruptcy petition on

October

the

22nd

of

same

year.

Less

than

a

month

later, plaintiffs’ counsel filed a motion to intervene
in Tolbert on her behalf.

In late December, the motion

to intervene was granted, and a complaint was filed in
her

name.

She

was

discharged

from

bankruptcy

in

February of the following year.
The record before the court is sufficient to find
that Speights made inconsistent statements under oath.
When she filed her bankruptcy petition, she affirmed
that the information contained in it was true and that
she

would

information

amend
in

her
the

petition
petition
12

should
need

to

any
be

of

the

updated.

Speights failed to list her discrimination claim on the
Schedule

B

form

filed

with

her

bankruptcy

petition

under oath; in that form, she was required to list her
personal

property,

including

all

“contingent

unliquidated claims of every nature.”
had

met

with

lawyer

about

her

and

Given that she

discrimination

claim

months before filing the bankruptcy petition and that a
motion to intervene would be filed based on her claim
weeks later, she clearly was aware of her potential
discrimination

claim

when

she

filed

her

petition, and was required to list it.
a

Statement

of

Financial

Affairs

bankruptcy

She also filed

(“SOFA”)

with

her

bankruptcy petition, which required her to list “all
suits

and

administrative

proceedings

to

which

the

debtor is or was a party within one year immediately
preceding

the

filing

of

this

bankruptcy

case.”

Although she was not a party to this case within one
year

of

updated

filing
SOFA

the
after

petition,
the

she

motion

complaint were filed.
13

did
to

not

file

intervene

an
and

The

court

further

finds

that

her

inconsistent

statement was calculated to make a mockery of justice.
As Speights had a law degree and had practiced law, she
could not reasonably claim that she did not understand
her

duty

claim.

to

disclose

her

potential

discrimination

Further, Speights filed her motion to intervene

in this case just 17 days after filing her bankruptcy
petition, but she did not update her petition when the
motion was filed or when it was granted and a complaint
filed

in

her

name

the

following

month.

The

close

temporal proximity between the bankruptcy filing and
the filing of the motion to intervene is additional
evidence

that

she

discrimination

was

well

claim

aware

while

of

her

seeking

protection but chose not to disclose it.
a

motive

to

conceal

her

claim,

as

potential
bankruptcy

She also had

she

was

seeking

damages in this case which potentially could have been
assigned

to

intentionally
claim

to

the

pay

off

failed

her

to

debts.

disclose

bankruptcy

court,
14

her

Because

she

discrimination

Speights

must

be

judicial
motion

estopped

for

from

summary

pursuing

judgment

it.

will

Therefore,

be

granted

case

for

as

the
to

Speights.

B. Mathews
Mathews

is

not

estoppel.

She

clearly

under

by

oath

as

failing

bankruptcy filings.

clear
took
to

list

a

inconsistent
this

judicial
positions

lawsuit

in

her

However, it is less clear that, in

doing so, she intended to make a mockery of justice.
She filed her bankruptcy petition on April 12, 2013,
almost 20 years after she had become a party to this
lawsuit.

She gave the bankruptcy court notice of two

different lawsuits, and filed an amended SOFA adding
two more suits, but did not give notice of this one.
Given the length of time since this case was filed, it
is highly possible that she omitted her claim in this
case unintentionally.
In any case, the court need not resolve that issue,
because the court finds that Mathews’s claim should be
15

dismissed for failure to prosecute.
Castro,

465

F.3d

479,

483

See Zocaras v.

(11th

Cir.

2006)

(“In

addition to its power under Rule 41(b), a court also
has the inherent ability to dismiss a claim in light of
its authority to enforce its orders and provide for the
efficient

disposition

of

litigation.”)

Plaintiff’s

counsel moved to withdraw from representing Mathews in
late 2013, after the motion for summary judgment on the
basis of judicial estoppel was filed.

In the motion,

counsel explained that Mathews had not responded to his
efforts earlier that year to set up an appointment and
that she had not responded to telephone messages left
on her cell and home numbers since then.
stated

that

he

had

sent

her

a

Counsel also
copy

of

the

summary-judgment motion in the mail to her last known
address

with

a

request

for

information

about

counsel should respond, but did not hear back.
granting
Mathews

the
to

motion

to

withdraw,

respond

to

the

the

court

defendants’

how
After

ordered

motion

for

summary judgment, explaining in detail how to do so.
16

In the order, the court explained: “Failure to follow
the requirements of Rule 56 regarding the proper way to
oppose a motion for summary judgment may result in the
court granting the motion and entering final judgment
in favor of the moving party without there being a
trial.”

Order (doc. no. 923).

The order sent to her

was not returned by the postal service. Mathews did not
respond

by

otherwise

the

deadline,

communicated

and

with

has

the

not

responded

court

in

the

or

years

since.
After the motion to dismiss for want of prosecution
was filed in 2016, the court entered an order to show
cause why the motion should not be granted.
returned

as

undeliverable.

receive

notices

responsibility

to

Had

Mathews

about

the

case,

notify

the

clerk

This was
wanted

she
of

any

change; apparently, she did not care to do so.

17

had

to
the

address

The

court

concludes

that

Mathews

has

failed

prosecute and abandoned her claims in this case.

to

Were

she interested in this case, she would have responded
to her attorneys or at least to the motion for summary
judgment in 2013.
prosecuting

this

As Mathews has shown no interest in
case,

and

the

court’s

most

recent

effort to contact her has failed, no lesser sanction
than dismissal would suffice.

Accordingly, Mathews’s

claims will be dismissed.4
An appropriate judgment will be entered.
DONE, this the 18th day of July, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

4.
Although defendants did not move to dismiss
plaintiff Speights’s lawsuit for want of prosecution,
this reason for dismissing Mathews’s claims applies
equally to plaintiff Speights.
Therefore, in the
alternative to granting summary judgment, the court
dismisses Speights’s claims for want of prosecution.