Drakes v. Glenwood Inc
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/28/2013. (JLC)
2013 Jun-28 PM 03:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
RICO ELTJUAN DRAKES,
Case No.: 2:10-CV-2659-VEH
The plaintiff in this job discrimination lawsuit, Rico Eltjuan Drakes (“Mr.
Drakes”), is proceeding pro se. Mr. Drakes initiated this action on September 30,
2010. (Doc. 1).
Pending before the court is Defendant Glenwood, Inc.’s (“Glenwood”) Motion
To Dismiss Pursuant to Rule 12(b)(1) and Alternative Motion To Dismiss Under Rule
12(b)(6) Pursuant to the Doctrine of Judicial Estoppel (Doc. 11) (the “Motion”) filed
on May 22, 2013. Glenwood has attached to its Motion several exhibits that are
related to Mr. Drakes ’s bankruptcy proceedings. (Doc. 11-1-11-6).
On May 23, 2013, the court entered a notice and scheduling order (Doc. 12),
which converted the Motion to one for summary pursuant to Rule 56 of the Federal
Rules of Civil Procedure and gave Mr. Drakes special notice of the requirements
relating to opposing a Rule 56 motion. (Id. at 1). The court also set Mr. Drakes’s
deadline to file a response for June 24, 2013.
On June 21, 2013, Mr. Drakes filed his opposition (Doc. 15) in advance of his
Glenwood followed with its reply (Doc. 16) on June 24, 2013.
Accordingly, the Motion is now under submission and, for the reasons explained
below, is due to be granted in part and termed as moot in part.
Subject Matter Jurisdiction
Unlike state courts, federal tribunals are bodies of limited jurisdiction, meaning
that the grounds for the court’s jurisdiction must be present at the time the complaint
is filed and must be obvious on the face of the complaint. Fed. R. Civ. P. 8(a); 28
U.S.C. § 1330, et seq. The law is clear that Mr. Drakes, the person seeking to invoke
federal jurisdiction in this case, has the burden to demonstrate that the court has
subject matter jurisdiction. See McNutt v. General Motors Acceptance Corp., 298
U.S. 178, 182, 56 S. Ct. 780, 782, 80 L. Ed. 1135 (1936) (“It is incumbent upon the
plaintiff properly to allege the jurisdictional facts, according to the nature of the
Further, lack of subject matter jurisdiction cannot be waived or expanded by
judicial interpretation, and a jurisdictional deficiency can be raised at any time by
either the parties or the court. See, e.g., Sosna v. Iowa, 419 U.S. 393, 398, 95 S. Ct.
553, 556-57, 42 L. Ed. 2d 532 (1975) (citation omitted) (“While the parties may be
permitted to waive nonjurisdictional defects, they may not by stipulation invoke the
judicial power of the United States in litigation which does not present an actual ‘case
or controversy,’ and on the record before us we feel obliged to address the question
of mootness before reaching the merits of appellant's claim.”); Am. Fire & Cas. Co.
v. Finn, 341 U.S. 6, 17-18, 71 S. Ct. 534, 542, 95 L. Ed. 702 (1951) (“The jurisdiction
of the federal courts is carefully guarded against expansion by judicial interpretation
or by prior action or consent of the parties.”).
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party
has properly supported its motion for summary judgment, the burden shifts to the
nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,
1274 (11th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Finally “[i]f the movant bears the burden of proof on an issue, because, as a
defendant, it is asserting an affirmative defense, it must establish that there is no
genuine issue of material fact as to any element of that defense.” International
Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d
409, 412 (5th Cir. 2003)).
The Motion is legally premised upon lack of standing due to Mr. Drakes’s
status as a Chapter 7 debtor under the Bankruptcy Code and, alternatively, upon the
defense of judicial estoppel due to Mr. Drakes’s failure to disclose his claims against
Glenwood in his personal bankruptcy proceedings.
Mr. Drakes Lacks Standing To Pursue This Action.
As Glenwood correctly contends, Mr. Drakes lacks standing to pursue this
lawsuit on account of his undisputed status as a Chapter 7 debtor under the
Given the nature of this court’s ruling on summary judgment, it elects not to
recite a separate statement of facts.
Bankruptcy Code2 and the uncontested pre-petition nature of his cause(s) of action
alleged against Glenwood. “Because standing is jurisdictional, a dismissal for lack
of standing has the same effect as a dismissal for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1).” Stalley v. Orlando Reg’l Healthcare Sys., 524 F.3d
1229, 1232 (11th Cir. 2008).
The Supreme Court of the United States has just this week elaborated upon
several principles pertaining to the constitutional doctrine of standing:
Article III of the Constitution confines the judicial power of
federal courts to deciding actual “Cases” or “Controversies.” §2. One
essential aspect of this requirement is that any person invoking the
power of a federal court must demonstrate standing to do so. This
requires the litigant to prove that he has suffered a concrete and
particularized injury that is fairly traceable to the challenged conduct,
and is likely to be redressed by a favorable judicial decision. Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560–561 (1992). In other words,
for a federal court to have authority under the Constitution to settle a
dispute, the party before it must seek a remedy for a personal and
tangible harm. “The presence of a disagreement, however sharp and
acrimonious it may be, is insufficient by itself to meet Art. III’s
requirements.” Diamond, supra, at 62.
Most standing cases consider whether a plaintiff has satisfied the
requirement when filing suit, but Article III demands that an “actual
The record establishes that Mr. Drakes filed for Chapter 7 bankruptcy
protection on May 14, 2013, which postdates the filing of this lawsuit by several
years. (Doc. 11 at 3 ¶ 11); (see also Doc. 11-4 at 2 (reflecting “Date filed:
controversy” persist throughout all stages of litigation. Already, LLC v.
Nike, Inc., 568 U. S. ___, ___ (2013) (slip op., at 4) (internal quotation
Hollingsworth v. Perry, ___ U.S. ___, ___ , 2013 WL 3196927, at *6 (June 26, 2013)
The Eleventh Circuit has made it clear that, “a pre-petition cause of action is
the property of the Chapter 7 bankruptcy estate, and only the trustee in bankruptcy
has standing to pursue it.” Parker v. Wendy’s International, Inc., 365 F.3d 1268,
1272 (11th Cir. 2004) (emphasis added); see also Barger v. City of Cartersville, 348
F.3d 1289, 1292 (11th Cir. 2003) (stating that “[o]nce an asset becomes part of the
[Chapter 7] bankruptcy estate, all rights held by the debtor in the asset are
extinguished unless the asset is abandoned back to the debtor . . . .” (citing 11 U.S.C.
“To have standing, a litigant must seek relief for an injury that affects him in
a ‘personal and individual way.’” Hollingsworth, 2013 WL 3196927, at *7 (quoting
Defenders of Wildlife, 504 U.S. at 560 n.1, 112 S. Ct. at 2136, n.1). Thus, although
Mr. Drakes had standing to bring this action against Glenwood initially, once he
sought Chapter 7 bankruptcy protection, he no longer “possess[ed] a ‘direct stake in
the outcome of th[is] case[,]’” Hollingsworth, 2013 WL 3196927, at *7 (quoting
Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)). Instead, he lost
his “judicially cognizable interest” in this lawsuit’s potential value as an unsecured
asset to the Chapter 7 trustee. Hollingsworth, 2013 WL 3196927, at *8.
As the Eleventh Circuit analyzed standing in a more factually and procedurally
comparable unpublished opinion:
Before we can reach the merits of Baxley’s employment claims,
we must determine whether Baxley has standing to bring these claims.
We find that Baxley is without standing to pursue the instant claims
because her employment claims are property of her Chapter 7
bankruptcy estate. The cause of action underlying Baxley’s employment
claims arose on the date of her termination, August 22, 2003. Baxley
filed her Chapter 7 bankruptcy petition on October 14, 2003, almost two
months later. At this time, Baxley’s employment claims became
property of the bankruptcy estate.
“Generally speaking, a pre-petition cause of action is the property
of the Chapter 7 bankruptcy estate, and only the trustee in bankruptcy
has standing to pursue it.” Parker v. Wendy’s International, Inc., 365
F.3d 1268, 1272 (11th Cir. 2004) (citing Barger v. City of Cartersville,
348 F.3d 1289, 1292 (11th Cir. 2003)). “Once an asset becomes part of
the bankruptcy estate, all rights held by the debtor in the asset are
extinguished unless the asset is abandoned back to the debtor pursuant
to § 554 of the Bankruptcy code.” Id. (citing 11 U.S.C. § 554).
In this case, Baxley’s discrimination claim became an asset of the
bankruptcy estate when she filed her bankruptcy petition. Regardless of
Baxley’s intentions or reasons for failing to disclose her employment
claims on the bankruptcy schedules, Baxley’s non-disclosed
employment claims remain property of the estate. Additionally, there is
no evidence that the trustee, the real party in interest in Baxley’s
discrimination suit, ever abandoned this claim. Thus, Baxley has no
standing to bring the instant employment claims. Parker, 365 F.3d at
We accordingly affirm the district court’s order granting summary
judgment for Pediatric Services.
Baxley v. Pediatric Services of America, Inc., 147 Fed. App’x 59, 60-61 (11th Cir.
2005) (emphasis added).
Here, akin to Baxley, there is no evidence that the Chapter 7 trustee has
abandoned Mr. Drakes’s employment discrimination claim. Also, in contrast to
Parker, the Chapter 7 trustee has not “moved to intervene in this case or,
alternatively, for substitution as the real party in interest.” 365 F.3d at 1270.
Accordingly, consistent with the above analysis, the jurisdictional portion of the
Motion is due to be granted as the record confirms Mr. Drakes lacks the power to
prosecute this action against Glenwood because he has lost his standing as the real
party plaintiff in interest.
The Court Does Not Reach The Alternative Defense Of
As the Eleventh Circuit observed in Parker:
Trustee Reynolds concedes that Parker took inconsistent positions
in bankruptcy court and district court. Reynolds argues that Parker’s
inconsistent statements should not be attributed to him and that, even if
judicial estoppel would bar Parker, it should not bar Reynolds from
pursuing this claim on behalf of Parker’s creditors. Reynolds contends
that judicial estoppel should not apply to him, as bankruptcy trustee,
because he did not know of the discrimination claim during the
bankruptcy proceedings and, therefore, did not take inconsistent
positions in the courts. Moreover, Reynolds posits that applying judicial
estoppel to him would not serve the policy of encouraging honest
disclosure to the courts because Reynolds was never dishonest with the
The correct analysis here compels the conclusion that judicial
estoppel should not be applied at all. Moreover, based on our analysis
which follows, it is questionable as to whether judicial estoppel was
correctly applied in Burnes. The more appropriate defense in the Burnes
case was, instead, that the debtor lacked standing.
Parker, 365 F.3d at 1271-72 (emphasis added).
Therefore, consistent with Parker’s guidance, the court does not decide the
merits of Glenwood’s affirmative defense of judicial estoppel3 and rather grants the
Motion on jurisdictional grounds only. See also Baxley, 147 Fed. App’x at 61 n.1
(“Because Baxley has no standing to bring her employment claims against Pediatric
Services, we need not reach the issue of judicial estoppel as raised in the parties’
briefs and addressed by the district court.”).
Accordingly, the Motion is due to be granted solely for lack of subject matter
jurisdiction and otherwise is due to be termed as moot.
The court notes that, even if the doctrine of judicial estoppel appropriately
applies, the scope of such a defense would not affect Mr. Drakes’s efforts to obtain
prospective injunctive relief regarding Glenwood’s employment practices. See
Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1289 (11th Cir. 2002) (“We decide,
then, that the important and necessary reasons that bar Billups’ monetary claims do
not affect his efforts to change, through injunctive relief, Pemco’s employment
DONE and ORDERED this the 28th day of June, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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