Pate v. Infirmary Health Systems, Inc.
ORDER granting 25 Motion for Summary Judgment and this action is dismissed with prejudice. Signed by Judge Kristi K. DuBose on 9/17/2013. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
INFIRMARY HEALTH SYSTEMS, INC.,
) CIVIL ACTION NO. 12-00513-KD-C
This action is before the Court on the Motion for Summary Judgment (Doc. 25) and
supporting materials (Docs. 26-27) filed by Defendant Infirmary Health Systems, Inc.
(“Infirmary Health”)1 pursuant to Federal Rule of Civil Procedure 56, along with the Response
(Doc. 31) of Plaintiff Tracie Pate (“Pate”). The Infirmary moves for summary judgment in its
favor on all of Pate’s claims in this action. Upon consideration, and for the reasons set forth
herein, the Court finds that the motion is due to be GRANTED.
On August 16, 2012, Pate filed a Complaint (Doc. 1) with the Court, alleging violations
by Infirmary Health, her former employer, of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 701 et seq. (Count I), the Americans with Disabilities Act of 1990 (“ADA”)2, as
Infirmary Health asserts that it has been incorrectly named in the Complaint and that it should be
identified as Infirmary Health Hospitals, Inc. d/b/a Infirmary West.
“Under the ADA, a plaintiff must comply with the same procedural requirements to sue that exist under
Title VII. 42 U.S.C. § 12117(a). Under Title VII, a plaintiff must bring suit within 90 days of receiving a
right-to-sue letter from the EEOC. 42 U.S.C. § 2000e–5(f)(1). Dismissal is appropriate when the
plaintiff fails to file her lawsuit within 90 days of receiving a right-to-sue letter, unless she shows that the
delay was through no fault of her own. Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1339–41 (11th
Cir. 1999).” Bryant v. U.S. Steel Corp., 428 F. App'x 895, 897 (11th Cir. 2011). Pate alleges that she
“has satisfied all EEOC administrative prerequisites prior to filing this action.” (Doc. 1 at 2, ¶ 3).
Though Infirmary Health denies this allegation in its Answer (Doc. 10 at 1), it does not further contest
this issue. Accordingly, the Court will assume all EEOC administrative prerequisites to be met. See id.
(only “[o]nce the defendant contests the issue” does “the plaintiff bear the burden of establishing that
she filed her claim within 90 days of receiving the notice.” (citing Green v. Union Foundry Co., 281 F.3d
1229, 1234 (11th Cir. 2002)).
amended, 42 U.S.C. § 12101 et seq. (Count II), and the Family and Medical Leave Act of 1993
(“FMLA”), as amended, 29 U.S.C. § 2601 et seq. (Count III).3 Infirmary Health filed its Answer
(Doc. 10) on November 13, 2012, denying any liability.
On July 29, 2013, Infirmary Health filed the present motion for summary judgment and
supporting materials. (Docs. 25-27). A briefing schedule was set (Docs. 28, 30), and Pate timely
filed her Response (Doc. 31), the entirety of which reads:
COMES NOW the Plaintiff and moves this court to respond to Defendant’s
summary judgment and as grounds shows as follows:
1. Plaintiff has reviewed the motion, brief, and filings, and submits the argument
on the bankruptcy estoppel is well-taken.
Infirmary Health has not filed a reply to the Response.
The motion for summary
judgment is now under submission and is ripe for adjudication.
Standard of Review
“The 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. 56(a). Rule 56(c) governs procedures and provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Accordingly, the Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Fed. R. Civ. P. 56(c).
A party seeking summary judgment bears 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 demonstrate 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)). The mere existence of a factual dispute will not automatically necessitate
denial; rather, only factual disputes that are material preclude entry of summary judgment.
Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004).
In light of Pate’s Response (Doc. 31), the Court construes Infirmary Health’s motion as
unopposed. Specifically, Local Rule 7.2(b) for the Southern District of Alabama requires a party
responding to a Rule 56 motion to specify the disputed facts, if any, and that failure to do so will
be interpreted as an admission that there is no material factual dispute:
Within thirty (30) days…[of the filing of a motion for summary judgment] or as
may be otherwise ordered, the party or parties in opposition shall file a brief in
opposition thereto, and, if it is contended that there are material factual disputes,
shall point out the disputed facts appropriately referenced to the supporting
document or documents filed in the action. Failure to do so will be considered an
admission that no material factual dispute exists; provided, that nothing in this
rule shall be construed to require the non-movant to respond in actions where the
movant has not borne its burden of establishing that there is no dispute as to any
S.D. ALA. L.R. 7.2(b). Because Pate has failed to point out any disputed facts, her “[f]ailure to
do so will be considered an admission that no material factual dispute exists.” L.R. 7.2(b). See,
e.g., Patton v. City of Hapeville, Ga., 162 F. App’x 895, 896 (11th Cir. 2006)4 (providing that
“the district court properly held that the defendants' statement of undisputed facts filed with their
motion for summary judgment were admitted when Patton failed to respond to the statement of
facts in accordance with the Federal Rules of Civil Procedure and the Local Rules”).
Nevertheless, the Court notes that the “mere failure of the non-moving party to create a
factual dispute does not automatically authorize the entry of summary judgment for the moving
party.” Dixie Stevedores, Inc. v Marinic Maritime, Ltd., 778 F.2d 670, 673 (11th Cir. 1985).
Instead, “Rule 56 requires the moving party to demonstrate the absence of a genuine issue of
fact.” Id. In United States v. One Piece of Property, 5800 S.W. 4th Ave., Miami, Florida, 363
F.3d 1099 (11th Cir. 2004), the Eleventh Circuit held that “[t]he district court cannot base the
entry of summary judgment on the mere fact that the motion was unopposed but, rather, must
consider the merits of the motion,” Id. at 1101, and noted the provision in Fed. R. Civ. P. 56(e)
that when “‘the adverse party does not respond, summary judgment, if appropriate, shall be
entered against the adverse party.’” Id. at 1101 (emphasis in original); see also Trustees of the
Central Pension Fund of the Int’l Union of Operating Engineers and Participating Employers v.
Wolf Crane Service, Inc., 374 F.3d 1035, 1040 (11th Cir. 2004) (vacating and remanding the
district court’s grant of summary judgment, in part, “[b]ecause summary judgment cannot be
granted as a sanction for merely failing to file a response to a motion for summary judgment”).
“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive
authority.” 11th Cir. R. 36-2 (effective Aug. 1, 2012).
Pate and her husband jointly filed for Chapter 13 bankruptcy on March 11, 2011, in the
United States Bankruptcy Court for the Southern District of Alabama, Case No. 11-00962. (Doc.
26-12; Doc. 26-14). Section 4(a) of the “Statement of Financial Affairs” portion of the Chapter
13 petition, requires that the debtor “[l]ist all suits and administrative proceedings to which the
debtor is or was a party within one year immediately preceding the filing of th[e] bankruptcy
(Doc. 26-14 at 41).
“Married debtors filing
under . . . chapter 13 must include
information concerning either or both spouses whether or not a joint petition is filed . . .” (Id.).
To this, the Pates answered “none.” (Id.).
Pate commenced this action on August 16, 2012. (Doc. 1). However, Pate did not
amend her Chapter 13 petition to include the action in her Statement of Financial Affairs. (Doc.
26-12). On January 7, 2013, the Pates were granted leave to convert their bankruptcy petition to
one for Chapter 7 bankruptcy. (Id. at 8-9). The Pates then filed their Chapter 7 petition on
January 25, 2013. (Doc. 26-13) In Section 4(a) of the Chapter 7 petition’s “Statement of
Financial Affairs,” the Pates listed only a pending action against Pate in the Small Claims Court
of Mobile County, Alabama. (Id. at 49). No actions against Infirmary Health, including the
present action, were listed. (Id.). The Pates received a Chapter 7 discharge on May 13, 2013.
(Doc. 26-12 at 10; Doc. 26-1 at 19, p. 113).
The “Statements of Financial Affairs” for both the Chapter 13 and Chapter 7 petitions
were submitted to the bankruptcy court by Pate as being “true and correct” “under penalty of
perjury . . .” (Doc. 26-14 at 3, 47; Doc. 26-13 at 3, 55).
Inter alia, Infirmary Health argues that, because Pate never disclosed this action in her
bankruptcy proceeding, she is judicially estopped from pursuing her claims. Pate responds that
“the argument on the bankruptcy estoppel is well-taken.” (Doc. 31 at 1).
“The purpose of judicial estoppel is ‘to protect the integrity of the judicial process by
prohibiting parties from changing positions according to the exigencies of the moment.’ ”
Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010)5 (quoting New Hampshire
v. Maine, 532 U.S. 742, 749 (2001)). “Specifically, judicial estoppel is designed to ‘prevent a
party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by the
party in a previous preceding.’ ” Id. (quoting 18 Moore's Federal Practice § 134.30 (3d ed.
The seminal case in the Eleventh Circuit on the theory of judicial estoppel is
Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002) . Incorporating
the standards enumerated by the Supreme Court, Burnes outlined two primary
factors for establishing the bar of judicial estoppel. “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 a
mockery of the judicial system.” Id. at 1285. Burnes recognized that these factors
are not exhaustive; rather, courts must always give due consideration to the
circumstances of the particular case. See id.
Unlike general grants of summary judgment, a “district court's application of judicial
estoppel [is reviewed ]for abuse of discretion.” Id. (citing Talavera v. School Bd. of Palm Beach
County, 129 F.3d 1214, 1216 (11th Cir. 1997).
A bankruptcy debtor takes “inconsistent positions under oath if she had a continuing
duty to disclose changes in her bankruptcy asset schedule.” Id. at 1274. The Eleventh Circuit
has emphasized the importance of full and honest disclosure in bankruptcy
proceedings, stating that it is “crucial” to the system's “effective functioning.”
[Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002)]. A
Infirmary Health relies primarily on Robinson in arguing for judicial estoppel.
debtor seeking shelter under the bankruptcy laws has a statutory duty to disclose
all assets, or potential assets to the bankruptcy court. 11 U.S.C. §§ 521(1),
541(a)(7). “The duty to disclose is a continuing one that does not end once the
forms are submitted to the bankruptcy court; rather the debtor must amend [her]
financial statements if circumstances change.” Burnes, 291 F.3d at 1286. This
duty applies to proceedings under Chapter 13 and Chapter 7 alike because “any
distinction between the types of bankruptcies available is not sufficient enough to
affect the applicability of judicial estoppel because the need for complete and
honest disclosure exists in all types of bankruptcies.” De Leon v. Comcar
Industries, Inc., 321 F.3d 1289, 1291 (11th Cir. 2003).
“It is undisputed that a pending lawsuit seeking monetary compensation qualifies as an
asset.”6 Id. (citing Parker v. Wendy's Intern., Inc., 365 F.3d 1268 (11th Cir. 2004)). “It is also
undisputed that such an asset qualifies as property of the bankruptcy estate.” Id. (citing 11
U.S.C. § 1306 and Waldron v. Brown, 536 F.3d 1239, 1242 (11th Cir. 2008)). As a result, when
Pate “filed her claim against [Infirmary Health] while her bankruptcy was still pending, the claim
vested in the bankruptcy estate and [Pate] had a duty to notice the suit to all creditors.” Id. at
1274-75. However, Pate never did this, either by amending her Chapter 13 petition after this
action was filed or by disclosing it on her Chapter 7 petition, filed while this action was pending.
“By failing to update her bankruptcy schedule to reflect her pending claim, [Pate] represented
that she had no legal claims to the bankruptcy court while simultaneously pursuing her legal
claim against [Infirmary Health] in the district court. These actions, both taken under oath, are
clearly inconsistent. Therefore, . . . [Pate] took inconsistent positions under oath and the issue of
judicial estoppel centers on her intent.” Id. at 1275.
Intent to Make a Mockery of the Judicial System
When considering a party's intent for the purpose of judicial estoppel, [the
Eleventh Circuit] require[s] “intentional contradictions, not simple error or
inadvertence.” Am. Nat'l Bank of Jacksonville v. FDIC, 710 F.2d 1528, 1536
(11th Cir. 1983). “In considering judicial estoppel for bankruptcy cases, the
Pate seeks only monetary damages in this action, except in Count I (discussed infra, n.8).
debtor's failure to satisfy its statutory disclosure duty is ‘inadvertent’ only when,
in general, the debtor either lacks knowledge of the undisclosed claims or has no
motive for their concealment.” Barger v. City of Cartersville, 348 F.3d 1289,
1295-96 (11th Cir. 2003).[ ]While an estopped party's contradiction must be
intentional, such intent may be inferred from the record. Burnes, 291 F.3d at
Sufficient, unchallenged evidence has been presented from which the Court can infer
intent by Pate to conceal this action from her creditors in her bankruptcy action. Not only did
Pate fail to amend her previously filed Chapter 13 petition to include this action, she again failed
to disclose this action in her Chapter 7 petition, filed while this action was pending.7 Thus, it
cannot be argued that, at the very least when she filed her Chapter 7 petition, she was quite aware
of her claims in this action.
It is even more telling that, while not disclosing this action on her Chapter 7 petition, she
did disclose a pending lawsuit in which she was being sued.
As Infirmary Health sums it up,
Pate “made known her liability, while concealing her potential asset.” (Doc. 27 at 7). See
Robinson, 595 F.3d at 1276 (“[T]he district court found Robinson had a motive to conceal her
claims in order to keep any settlement proceeds and this finding was reasonable on the record
presented.”). Thus, the Court can infer from this a motive to conceal this action so as to keep
any resulting proceeds for herself while receiving a discharge of liabilities to her creditors. Cf.
Marable v. Marion Military Inst., 906 F. Supp. 2d 1237, 1248 (S.D. Ala. 2012) (Granade, J.)
Cf. Robinson, 595 F.3d at 1276 (“The district court recognized that this was not Robinson's first mistake
regarding her bankruptcy proceedings. Robinson failed to disclose her pending worker's compensation
claim against Drummond Coal when she initially declared bankruptcy in 2002. Specifically asked if she
had any pending claims, Robinson 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 omission
constituted additional evidence of Robinson's intent to conceal claims and such an inference is not clearly
(“Marable not only failed to amend his Petition after the EEOC issued a right to sue letter on
April 6, 2011, but he also waited more than two weeks after MMI raised the issue of judicial
estoppel in its summary judgment motion before finally amending the Petition. Furthermore,
Marable appeared to gain an advantage when he failed to list his EEOC claim on his Debtor's
Schedule because, by omitting the claim, he could keep any proceeds resulting from his claim for
himself and not have them become part of the bankruptcy estate. See Barger v. City of
Cartersville, Ga., 348 F.3d 1289, 1296 (11th Cir. 2003); see also Robinson v. Tyson Foods, Inc.,
595 F.3d 1269, 1275 (11th Cir. 2010).” (some citations omitted)).
Accordingly, because Pate seeks only monetary damages,8 the Court finds that she is
judicially estopped from pursuing her claims in this action.9 Therefore, Infirmary Health’s
motion for summary judgment is due to be GRANTED.
In accordance with the foregoing analysis, it is ORDERED that Defendant Infirmary
Health’s Motion for Summary Judgment (Doc. 25) is GRANTED and that this action be
“The doctrine of judicial estoppel applies only to claims for monetary damages, and does not
bar claims for injunctive relief.” Marable, 906 F. Supp. 2d at 1249 (citing Burnes v. Pemco Aeroplex,
Inc., 291 F.3d 1282, 1289 (11th Cir. 2002), and Casanova v. Pre Solutions, Inc., 228 F. App’x 837, 841
(11th Cir. 2007)).
Pate requests as relief in Count I (Rehabilitation Act claims), in addition to monetary damages,
“[a] finding that the Defendant has violated the Plaintiffs rights under the Rehabilitation Act on the basis
of her disability, and ordering the Defendant to make appropriate compliance changes.” (Doc. 1 at 4). In
light of Pate’s Response to the motion for summary judgment, however, the Court deems this requested
relief to have been abandoned. Alternatively, the Court finds that Pate has not rebutted Infirmary
Health’s assertion that “there is no evidence Defendant receives federal funding so as to be subject to the
Rehabilitation Act.” (Doc. 27 at 8 n.1). See Shotz v. Am. Airlines, Inc., 323 F. Supp. 2d 1315, 1317
(S.D. Fla. 2004) aff'd, 420 F.3d 1332 (11th Cir. 2005) (“The Rehabilitation Act prohibits discrimination
against any qualified handicapped individual under ‘any program or activity receiving Federal financial
assistance.’ 29 U.S.C. § 794(a) (emphasis added).”).
As such, the Court need not address Infirmary Health’s arguments as to the merits of Pate’s claims.
DISMISSED with prejudice.10
Final judgment in accordance with this Order shall issue by separate document.
DONE and ORDERED this the 17th day of September 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
See Otter v. Northland Grp., Inc., No. 12-2034-RSM, 2013 WL 2243874, at *4 (W.D. Wash. May 21,
2013) (“Since the application of judicial estoppel acts as an absolute bar to plaintiff's claim, . . . the
complaint is dismissed with prejudice.”).
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