Carr v. Beverly Health and Rehabilitation Services, Inc.

Filing 74

ORDER by Judge Edward M. Chen denying 67 Plaintiff's Motion to Reconsider (emclc1, COURT STAFF) (Filed on 1/3/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANDREW CARR,

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For the Northern District of California

United States District Court

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No. C-12-2980 EMC

Plaintiff,
v.
BEVERLY HEALTH CARE AND
REHABILITATION SERVICES, INC.,

ORDER DENYING PLAINTIFF’S
MOTION TO RECONSIDER
(Docket No. 67)

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Defendant.
___________________________________/

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Plaintiff Andrew Carr filed suit against Defendant Beverly Health and Rehabilitation

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Services, Inc. (“BHRS”), in which he asserted both individual claims and class/collective claims

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related to his former employment with BHRS. On November 5, 2013, the Court granted BHRS’s

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motion to dismiss on the basis of judicial estoppel, and a final judgment was entered in favor of

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BHRS. See Docket Nos. 65-66 (order and final judgment). Mr. Carr subsequently filed a motion to

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reconsider pursuant to Federal Rule of Civil Procedure 59. That motion is now currently pending

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before the Court. Having considered the parties’ briefs, the Court hereby DENIES Mr. Carr’s

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motion.

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“Reconsideration under Rule 59(e) is appropriate ‘if (1) the district court is presented with

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newly discovered evidence, (2) the district court committed clear error or made an initial decision

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that was manifestly unjust, or (3) there is an intervening change in controlling law.’” SEC v.

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Platforms Wireless Int’l Corp., 617 F.3d 1072, 1100 (9th Cir. Cal. 2010). Here, Mr. Carr is moving

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for reconsideration on the basis of clear error or manifest injustice. The Court does not find Mr.

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Carr’s arguments persuasive.

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For example, Mr. Carr argues that the Court improperly decided the issue of judicial estoppel

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at the 12(b)(6) phase (i.e., the issue should have been deferred until summary judgment). However,

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many courts have in fact resolved the issue of judicial estoppel upon a 12(b)(6) motion. See, e.g.,

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Kimble v. Donahoe, 511 Fed. Appx. 573, 575 (7th Cir. 2013) (affirming district court’s 12(b)(6)

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order finding, inter alia, judicial estoppel in the bankruptcy context); Abuan v. JPMorgan Chase &

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Co. No. 13cv1315 L (JMA), 2013 U.S. Dist. LEXIS 143474, at *11-12 (S.D. Cal. Oct. 3, 2013) (on

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12(b)(6) motion, “find[ing] that Plaintiff’s claims that arose during the pendency of her bankruptcy

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proceedings are judicially estopped”; giving plaintiff leave to amend only because she might “have

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claims that arose after her bankruptcy discharge which are not subject to judicial estoppel”); Black v.
Midland Credit Mgmt., No. C13-5626 RBL, 2013 U.S. Dist. LEXIS 130787, at *4-8 (W.D. Wash.

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For the Northern District of California

United States District Court

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Sept. 12, 2013) (on 12(b)(6) motion, concluding that plaintiff was judicially estopped from bringing

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a FDCPA claim); Kaufman v. Capital Quest, Inc., No. C-11-1301 JCS, 2011 U.S. Dist. LEXIS

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134589, at *46-49 (N.D. Cal. Nov. 22, 2011) (on 12(b)(6) motion, finding that plaintiff’s failure to

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disclose claims to bankruptcy court resulted in judicial estoppel); Rose v. Beverly Health & Rehab.

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Servs., No. CV F 06-0067 AWI DLB, 2006 U.S. Dist. LEXIS 91741, at *27-28 (E.D. Cal. Dec. 8,

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2006) (on 12(b)(6) motion, finding judicial estoppel applicable in bankruptcy context); cf. Oneida

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Motor Freight Inc. v. United Jersey Bank, 848 F.2d 414, 420 (3d Cir. 1988) (stating that “[t]he

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district court, although focusing primarily upon basic principles of res judicata, properly stressed the

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debtor’s special duty of candid disclosure when it granted the bank’s motion to dismiss”).

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The fact that courts have also declined to resolve the issue on a 12(b)(6) motion is not

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dispositive. For example, in Martinez v. Extra Space Storage, Inc., No. C 13-00319 WHA, 2013

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U.S. Dist. LEXIS 105079 (N.D. Cal. July 26, 2013), Judge Alsup did deny a 12(b)(6) motion to

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dismiss on the basis of judicial estoppel because the plaintiff’s “intent in failing to list her claims

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against defendants in her bankruptcy schedules is a disputed issue of material fact.” Id. at *7. But

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here, Mr. Carr submitted a declaration which the Court took into account in deciding whether to give

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leave to amend – and that declaration gave no basis for showing that judicial estoppel should not

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apply or that the inadvertence/mistake exception to judicial estoppel should. See Docket No. 65

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(Order at 6 n.2) (noting that, although the motion before it was a 12(b)(6) motion, the Court would

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“consider the declaration from Mr. Carr if only because, even taking into account the claims in the

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declaration, Mr. Carr still cannot defeat the motion to dismiss[;] [i]t also demonstrates the futility of

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amending the complaint”); cf. Krug v. Wells Fargo Bank, N.A., No. C 11-5190 RS, 2011 U.S. Dist.

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LEXIS 143218, at *10 (N.D. Cal. Dec. 13, 2011) (on 12(b)(6) motion, giving plaintiff leave to

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amend a TILA claim if he could, inter alia, allege “a basis for not having disclosed the claim in the

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bankruptcy proceedings”).

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Mr. Carr’s other arguments are equally unavailing. As the Court explained in its prior order,

issue of whether a disclosure would have affected the bankruptcy court’s decision to discharge).”

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Docket No. 65 (Order at 7). Therefore, Mr. Carr has no basis for suggesting that judicial estoppel

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For the Northern District of California

“the mere fact of a discharge constitutes an unfair advantage (i.e., a court need not delve into the

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United States District Court

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should not be applied to his class/collective claims (wage and hour). Moreover, Mr. Carr has failed

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to articulate any basis for asserting that he inadvertently or mistakenly failed to disclose his

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class/collective claims to the bankruptcy court. The Court’s prior order also addressed why Mr.

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Carr’s previously submitted declaration failed to establish a basis for claiming inadvertence or

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mistake. See Docket No. 65 (Order at 8-10).

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Accordingly, Mr. Carr’s motion to reconsider is denied.

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This order disposes of Docket No. 67.

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IT IS SO ORDERED.

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Dated: January 3, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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