Tuttle v. Prudential Insurance Company Of America

Filing 22

ORDER denying 12 Motion to Dismiss. Signed by Judge Victor A. Bolden on 3/9/2018. (Giammatteo, J.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

GARY B. TUTTLE,
Plaintiff,
v.

No. 3:17-cv-00100-VAB

THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
Defendant.

RULING ON DEFENDANT’S MOTION TO DISMISS
Gary Tuttle (“Plaintiff”) filed this lawsuit on January 23, 2018, alleging that the
Prudential Insurance Company of America (“Prudential” or “Defendant”), failed to provide him
with long term disability benefits. Compl., ECF No. 1. Prudential has now moved to dismiss the
Complaint. See Def. Mot. Dismiss, ECF No. 12.
For the reasons stated below, the motion to dismiss is DENIED.
I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Allegations

Mr. Tuttle, a resident of Connecticut, Compl. ¶ 1, worked as a Field Service
Representative for CDK Global, Inc., a company based in Illinois. Id. ¶¶ 7–8.
Prudential, an insurance company incorporated in New Jersey, id. ¶ 2, issued a long term
disability group policy (“the policy”) to CDK Global, Inc., for the benefit of CDK Global
employees who would, in return, pay premiums to maintain the policy. Id. ¶¶ 8, 12.
The policy provided “financial protection” for employees by paying a portion of their
income “while [they] have a long period of disability.” CDK Global, Inc. Group Contract G-

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51856-IL (“Policy”) at 21, Def. Mot. to Dismiss, Ex. A, ECF No. 12-2.1 An employee’s income
before any disability determined the amount of disability benefits an employee could receive,
and the policy allowed “[i]n some cases, you can receive disability payments even if you work
while you are disabled.” Id.
Prudential’s policy included the following definition:
You are disabled when Prudential determines that:
 you are unable to perform the material and substantial
duties of your regular occupation due to your sickness or
injury; and
 you are under the regular care of a doctor; and
 you have a 20% or more loss in your monthly earnings due
to that sickness or injury.
After 24 months of payments, you are disabled when Prudential
determines that due to the same sickness or injury:
 you are unable to perform the duties of any gainful
occupation for which you are reasonably fitted by education,
training or experience; and
 you are under the regular care of a doctor.
Id. at 30 (emphasis in original). The policy further defines “material and substantial duties” as
those “normally required for the regular performance” of an employee’s job and which “cannot
be reasonably omitted or modified . . . .” Id.
The policy also includes several other relevant definitions. Under the policy, regular
occupation “means the occupation you are routinely performing when your disability begins.” Id.
Regular care is defined as meaning “you personally visit a doctor as frequently as is medically

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The Court finds that the denial letters and administrative appeals process documents are
incorporated into the Complaint by reference and therefore it may consider these documents
when evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See
Leonard F. v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (“In adjudicating a
Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of
the complaint, in documents appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be taken.”) (internal quotation marks and
citations omitted). Citations to these documents will be to the ECF document’s pagination.
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required” and that “you are receiving the most appropriate treatment and care,” both according to
“generally accepted medical standards.” Id. at 31.
If an individual covered under the policy meets the definition of disability, he or she is
entitled to either sixty percent of the monthly earnings or $15,000, whichever is less. Id. at 33.
The policy also specifies several deductible sources of income that might reduce the award. Id.
The policy does not cover pre-existing conditions. Id. at 41.
In order to claim benefits, an employee must follow the claims procedure specified in the
policy. A covered employee must submit a claim within 90 days after a set period, accompanied
by documentation of the injury, medical care, and earnings. Id. at 46. The policy further provided
that an employee “can start legal action regarding your claim 60 days after proof of claim has
been given and up to 3 years from the time proof of claim is required, unless otherwise provided
under federal law.” Id. at 48. Once filed, Prudential had forty-five days to respond to a claim.
Summary Plan Description at 55, Def. Mot. to Dismiss, Ex. A, ECF No. 12-2. If denied, “in
whole or in part, [the employee or] authorized representative will receive a written notice”
explaining the denial. Id.
Following that written notice, an employee “may appeal [his or her] denied claim in
writing to Prudential within 180 days of the receipt of the written notice of denial or 180 days
from the date such claim is deemed denied.” Id. at 56. Prudential would then have an additional
forty-five days to respond to the appeal. After the appeal decision was rendered, an employee
“may take a second, voluntary appeal” within one hundred and eighty days. The claims policy
noted: “Your decision to submit a benefit dispute to this voluntary second level of appeal has no
effect on your right to any other benefits under this plan. If you elect to initiate a lawsuit without

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submitting to a second level of appeal, the plan waives any right to assert that you failed to
exhaust administrative remedies.” Id. at 57.
Mr. Tuttle alleges that, at all times relevant to the lawsuit, he “was and is an employee
eligible for disability benefits and an insured under the Policy . . . .” Compl. ¶ 13. He alleges that
he became disabled on September 18, 2015, caused by lumbar disc disease, cervical disc disease,
and a history of mantle cell lymphoma. Id. ¶¶ 16–17. Mr. Tuttle’s work required that he drive
thirty percent of the work day and carry fifty pounds, but his treating physician limited him to
driving no more than one hour per work day and carrying less than twenty pounds at a time. Id.
¶¶ 18–19. Mr. Tuttle alleges that this was a permanent restriction. Id. ¶ 19.
After receiving short-term benefits for the maximum duration, Mr. Tuttle applied for
long-term disability benefits under the policy. Id. ¶¶ 20–21. Prudential denied the claim on May
6, 2016. See id. ¶ 21; Letter from Marisa A. Clark, Senior Claims Manager, to Gary Tuttle,
(“May Letter”), Pl. Opp., Ex. B., ECF No. 17-2. The letter stated that, despite Mr. Tuttle’s
treating physicians’ opinions to the contrary, “[b]ased on the review of the file, we find no
medically supported restrictions and limitations that would preclude you from returning to work
to your regular occupation.” May Letter at 1. The letter stated that “[Mr. Tuttle had] reported a
history of cervical and lumbar pain” and that he linked that pain, at least in part, to a motor
vehicle accident, but disputed when that accident occurred. Id. at 2. It also noted that Mr. Tuttle
had been diagnosed with mantel cell non-Hodgkin’s lymphoma in 2011. Id.
Prudential concluded that Mr. Tuttle’s injuries were not covered because it found that he
had “worked in the past with this same condition and [he was] not in any intensity of treatment
that would support [he was] not able to work full time.” Id. The company stated that the
information in Mr. Tuttle’s file did not show he could not “perform[] material and substantial

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duties of your regular occupation” and, therefore, it did not show that he met the definition of
disability in the policy. Id. at 3.
The letter also stated that Mr. Tuttle had “the right to appeal” and included additional
documents specifying the procedure. Id. The documents stated that Mr. Tuttle could, if he chose,
“file a voluntary second appeal.” Id. at 6. But “[a]fter completion of the first level of appeal, you
may also file a lawsuit under the Employee Retirement Income Security Act (ERISA). ERISA
allows you to file suit for policy benefits and reasonable attorney’s fees. Your decision on
whether to file a second appeal will not affect your rights to sue under ERISA.” Id.
Mr. Tuttle appealed the denial. Prudential then sent Mr. Tuttle a second letter stating that
the company had “determined that you are eligible for additional benefits and have reinstated
your claim” for an additional two days. Letter from Marisa A. Clark, Senior Claims Manager, to
Gary Tuttle, (“July Letter”), Pl. Opp., Ex. F, ECF No. 17-6. Benefits beyond those two days, i.e.
beyond March 18, 2016, were “terminated.” Id. The July Letter stated that “[the] claim for LTD
benefits has been denied because [Prudential] determined that the medical information received
did not support impairment that would prevent [Mr. Tuttle] from performing the material and
substantial duties of your regular occupation,” and referenced the May Letter for “[a] complete
explanation of that decision.” Id. at 4. Additionally, the July Letter referred to Mr. Tuttle’s
response to the May Letter as his “first request to appeal” the denial of benefits.
The July Letter addressed Mr. Tuttle’s claims in a section entitled “Appeal
Determination.” Id. at 6. It stated that the “medical records support restrictions and limitations”
through March 18, 2016. Prudential stated that the period beyond March 18, 2018, would not be
covered because they had “determined that the information in your file does not support
impairment that would prevent you from performing material and substantial duties of your

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regular occupation.” Id. The July Letter concluded with identical language regarding Mr. Tuttle’s
appeal rights as the May Letter. Id. at 6–7.
B.

Procedural History

Mr. Tuttle filed this lawsuit on January 23, 2017, seeking a declaratory judgment. See
generally Compl. The Complaint stated that Mr. Tuttle had “exhausted all administrative appeals
and remedies under ERISA,” id. ¶ 29, and that Defendants had wrongly denied him benefits
under the policy. He also seeks those benefits, interest, and attorney’s fees. Id. at 7.
Prudential now moves to dismiss. See Def. Mot. Dismiss, ECF No. 12; Def. Mem. in
Support (“Def. Mem.”), ECF No. 12-1. It argues that dismissal is warranted for two reasons.
First, it argues that Mr. Tuttle is precluded from bringing ERISA claims because he failed to
disclose them in a prior bankruptcy proceeding. Second, it argues that Mr. Tuttle failed to
exhaust his administrative remedies. The company seeks dismissal with prejudice.
Mr. Tuttle opposed the motion. See Pl. Resp., ECF No. 17. He argues that Prudential’s
estoppel argument is misplaced, because any prior position he might have taken in bankruptcy
court was inadvertent. Id. at 5–6. He also argues that he properly exhausted his claims. Id. at 6–
13.
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) requires dismissal of any claim that fails “to

state a claim upon which relief can be granted.” In reviewing a complaint under Rule 12(b)(6),
the court applies “a ‘plausibility standard,’” guided by “two working principles.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). First, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. Second, to survive a motion to
dismiss, the complaint must state a plausible claim for relief. Id. at 679. “The plausibility

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standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. at 678. Instead, a plaintiff must allege facts that
“nudge[] their claims across the line from conceivable to plausible . . . .” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Determining whether the complaint states a plausible claim
for relief is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal,
556 U.S. at 679).
When evaluating a 12(b)(6) motion, the court must accept all factual allegations in the
complaint as true and draw all possible inferences from those allegations in favor of the plaintiff.
See York v. Ass’n of the Bar of the City of New York, 286 F.3d 122, 125 (2d Cir. 2002), cert.
denied, 537 U.S. 1089 (2002). The proper consideration is not whether the plaintiff ultimately
will prevail, but whether the plaintiff has stated a claim upon which relief may be granted such
that he should be entitled to offer evidence to support his claim. See id. (citation omitted). Courts
considering motions to dismiss under Rule 12(b)(6) generally “must limit [their] analysis to the
four corners of the complaint,” though they may also consider documents that are “incorporated
in the complaint by reference.” Kermanshah v. Kermanshah, 580 F. Supp. 2d 247, 258 (S.D.N.Y.
2008).
III.

DISCUSSION
Prudential moves to dismiss Mr. Tuttle’s complaint, raising two separate arguments.

First, Prudential argues that Mr. Tuttle failed to administratively exhaust his claim because he
did not appeal the July Letter. Second, it argues that Mr. Tuttle failed to disclose the disability
benefits he claims in this lawsuit during a prior bankruptcy proceeding. Prudential claims that
this failure means that Mr. Tuttle is now estopped from asserting he is entitled to those benefits.

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A.

Exhaustion

The first issue is whether Mr. Tuttle properly exhausted before filing this lawsuit. The
Second Circuit has long recognized that there is a “firmly established federal policy favoring
exhaustion of administrative remedies in ERISA cases.” Kennedy v. Empire Blue Cross & Blue
Shield, 989 F.2d 588, 594 (2d Cir. 1993) (quoting Alfarone v. Bernie Wolff Construction, 788
F.2d 76, 79 (2d Cir. 1986)). The exhaustion requirement serves three primary purposes: to “(1)
uphold Congress’ desire that ERISA trustees be responsible for their actions, not the federal
courts; (2) provide a sufficiently clear record of administrative action if litigation should ensue;
and (3) assure that any judicial review of fiduciary action (or inaction) is made under the
arbitrary and capricious standard, not de novo.” Kennedy, 989 F.2d at 594.
Given the exhaustion requirement, a plaintiff must “pursue all administrative remedies
provided by their plan pursuant to statute, which includes carrier review in the event benefits are
denied.” Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 511 (2d Cir.
2002). The requirement is an affirmative defense; the failure to exhaust is not jurisdictional. See
Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 445 (2d Cir. 2006) (“Indeed, the
requirement is purely a judge-made concept that developed in the absence of statutory language
demonstrating that Congress intended to make ERISA administrative exhaustion a jurisdictional
requirement.”).
As noted above, Mr. Tuttle received two letters addressing his claim from Prudential. The
first letter, dated May 6, 2016, denied benefits because the company found “no medically
supported restrictions and limitations that would preclude you from returning to work to your
regular occupation.” May Letter at 1. The letter stated that Mr. Tuttle would have to appeal once,
but then could either file a voluntary second appeal or “file a lawsuit under the Employee

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Retirement Income Security Act (ERISA). ERISA allows you to file suit for policy benefits and
reasonable attorney’s fees. Your decision on whether to file a second appeal will not affect your
rights to sue under ERISA.” Id. at 6. Mr. Tuttle filed that initial appeal on May 31, within the
deadlines set by the policy.
Prudential then sent a second letter, dated July 15, 2016. This letter granted additional
benefits to Mr. Tuttle, overturning part of the May Letter. But it also upheld a substantial part of
the previous decision to deny benefits. July Letter at 1 (“We have determined that you are
eligible for additional benefits and have reinstated your claim effective March 16, 2016 with
benefits payable through March 18, 2016. LTD benefits beyond March 18, 2016 have been
terminated.”). The July Letter had identical appeal language.
Prudential focuses solely on the July letter, arguing that because Mr. Tuttle did not appeal
the letter, and filed suit in court instead, he had failed to exhaust the procedures specified in the
plan. According to Prudential, “in order to exhaust his administrative remedies under the Plan,
Plaintiff must file one administrative appeal contesting the Prudential’s July 15, 2016
termination of LTD benefits.” Def. Mem. at 9. Prudential argues that Mr. Tuttle never filed an
appeal of that letter, and therefore it argues the Complaint should be dismissed with prejudice.
Id. at 10 (citing Davenport, 249 F.3d at 136).
Mr. Tuttle’s argument focuses on the May letter. He appealed that decision, and the July
Letter was in response to that appeal. He therefore argues that “[p]ursuant to the long term
disability plan and the information contained in the May 6, 2016 denial letter, the plaintiff is only
required to file one level of appeal in order to exhaust his administrative remedies.” Pl. Resp. at
6. He states that ERISA claims do not require issue exhaustion, and “a general administrative
appeal is sufficient to meet the requirement of exhaustion without the need to address in the

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appeal any details or specifics regarding particular issues on the claim.” Id. at 7. Finally, he
argues that forcing Mr. Tuttle to exhaust by appealing a second time would create a “continuous
cycle of appeals from appeals.” Id. at 8. This, Mr. Tuttle argues, would be contrary ERISA and
the specific provisions of the plan. Id.
The Court agrees with Mr. Tuttle. The record before the Court shows that the July Letter
was, effectively, a decision on Mr. Tuttle’s first appeal. The July Letter refers to its findings as
an “Appeal Determination.” It also explicitly references Mr. Tuttle’s “first request to appeal” the
denial of benefits. The July Letter is therefore best understood as a decision on Mr. Tuttle’s first
appeal and, as such, the final step Mr. Tuttle must take before he may file in federal court. Cf.
Wheeler v. Prudential Fin., Inc., 499 F. Supp. 2d 219, 221 (N.D.N.Y. 2007) (denying motion to
dismiss and rejecting Defendant’s argument that “this second statement indicates that filing a
lawsuit without submitting to a second level of appeal equals a failure to exhaust administrative
remedies”)
This conclusion is supported by the terms of the policy itself and the text of the two
letters. See Kennedy, 989 F.2d at 594 (“Thus, exhaustion in the context of ERISA requires only
those administrative appeals provided for in the relevant plan or policy.”). The plan description
states: “Your decision to submit a benefit dispute to this voluntary second level of appeal has no
effect on your right to any other benefits under this plan. If you elect to initiate a lawsuit without
submitting to a second level of appeal, the plan waives any right to assert that you failed to
exhaust administrative remedies.” Summary Plan Description at 57. Attachments sent with the
May Letter also include similar language: “After completion of the first level of appeal, you may
also file a lawsuit under the Employee Retirement Income Security Act (ERISA). ERISA allows

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you to file suit for policy benefits and reasonable attorney's fees. Your decision on whether to
file a second appeal will not affect your rights to sue under ERISA.” May Letter at 6.
Mr. Tuttle filed an initial appeal, after which he could choose to file a voluntary second
appeal or pursue his claim in court. See, e.g., Sowers v. Sun Healthcare Grp., Inc., No. 2:06-CV230, 2008 WL 3285752, at *6 (S.D. Ohio Aug. 8, 2008) (“There is no dispute that Plaintiff filed
a timely appeal of Defendant's decision denying coverage for her surgery. Defendant's argument
that Plaintiff's claim is barred for failure to exhaust her administrative remedies by filing a
second, voluntary appeal is without merit.”); McAfee v. Metro. Life Ins. Co., No. CIV. S-050227WBSKJM, 2006 WL 1455431, at *4 n.4 (E.D. Cal. May 24, 2006) (“The court therefore
declines to hold plaintiff to an exhaustion requirement encompassing voluntary appeals, much
less an exhaustion requirement that could extend indefinitely.”).
As a result, Mr. Tuttle properly exhausted his remedies through the procedures specified
in the policy. Prudential’s motion to dismiss, with respect to the exhaustion argument, is
therefore denied.
B.

Judicial Estoppel

The second issue is whether Mr. Tuttle’s claim is barred by the doctrine of judicial
estoppel. See Def. Mem. at 5–7. The company argues that “Plaintiff’s failure to disclose his
potential LTD benefits and his claim against Prudential to the Bankruptcy court, estops him from
pursuing his claim again Prudential here.” Id. at 5. In response, Mr. Tuttle argues that judicial
estoppel does not apply to his case because his actions were inadvertent. See Pl. Opp. at 5 (citing
Jethroe v. Omnova Solutions Inc., 412 F.3d 598, 600 (5th Cir. 2005)).
Judicial estoppel “is an equitable doctrine invoked by a court at its discretion” and
intended to “protect the integrity of the judicial process” New Hampshire v. Maine, 532 U.S.

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742, 749–50 (2001) (internal citations and quotation marks omitted). The doctrine “generally
prevents a party from prevailing in one phase of a case on an argument and then relying on a
contradictory argument to prevail in another phase.” Id. at 794 (quoting Pegram v. Herdrich, 530
U.S. 211, 227 (2000).
When deciding whether judicial estoppel applies, courts generally consider three factors2:
(1) whether the party’s position is clearly inconsistent; (2) whether the court adopted the party’s
former position in an earlier proceeding; and (3) whether “the party asserting the two positions
would derive an unfair advantage against the party seeking estoppel.” In Re Adelphia Recovery
Trust, 634 F.3d 678, 695–96 (2d Cir. 2011) (quoting DeRosa v. Nat’l Envelope Corp., 595 F.3d
99, 103 (2d Cir. 2010)). Within the Second Circuit, however, “we further limit judicial estoppel
to situations where the risk of inconsistent results with its impact on judicial integrity is certain,”
and therefore “judicial estoppel may only apply where the earlier tribunal accepted the accuracy
of the litigant’s statements.” Id. (citing DeRosa, 595 F.3d at 103, and Simon v. Safelite Glass
Corp., 128 F.3d 68, 72 (2d Cir. 1997)) (internal quotation marks and alterations omitted).
As to the first two factors, first, the company argues that the doctrine applies because Mr.
Tuttle’s position is inconsistent with his earlier position in a sworn petition in his bankruptcy
proceedings. Id. at 6. Second, it argues that the Bankruptcy Court adopted that position when it
discharged his claim, and that Mr. Tuttle failed to amend his claims “despite being aware that his
LTD benefits were terminated on July 15, 2016, and despite being aware of his right to appeal
that decision.” Mr. Tuttle appears to concede these two points. See Pl. Opp. at 5 (“In the present

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The United States Supreme Court cautioned, when it addressed these three factors, that “[i]n
enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula
for determining the applicability of judicial estoppel. Additional considerations may inform the
doctrine's application in specific factual contexts.” New Hampshire, 532 U.S. at 751.
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case, the plaintiff’s claims might be alleged to be inconsistent with his prior legal position
represented in his bankruptcy proceedings. The bankruptcy court also accepted his prior
position.”).
Prudential argues that the third factor is also met because “[d]etermination of the
ownership of assets is at the core of the bankruptcy process” and that Mr. Tuttle’s bankruptcy
proceedings would have been binding on debtors and creditors. Def. Mem. at 7 (quoting
Adelphia Recovery Trust v. Goldman, Sachs & Co., 748 F.3d 110, 118 (2d Cir. 2014)).
“Allowing Plaintiff to pursue his claim against Prudential at this juncture,” Prudential argues,
“after the Bankruptcy Court discharged Plaintiff’s bankruptcy claim relaying Plaintiff’s prior
omission of the LTD claim, would compromise the integrity of the bankruptcy process, and
would grant a windfall to Plaintiff of income that he successfully managed to hide from his
creditors.” Def. Mem. at 7.
Mr. Tuttle does not address this factor, but rather raises two separate considerations.
First, he argues his actions were inadvertent, citing to caselaw from the Court of Appeals for the
Fifth Circuit that states the third factor this Court should consider is whether the party against
whom estoppel is sought acted inadvertently. Pl. Resp. at 5 (citing Jethroe v. Omnova Solutions,
Inc., 412 F.3d 598, 600 (5th Cir. 2005). He states that he simply was not aware that his
bankruptcy attorney had not included the Prudential claim in his papers. He also claims that his
prior inconsistent position was a good faith mistake, “he has demonstrated no motive to conceal,
and has taken steps to correct his inadvertent nondisclosure with the courts.” Pl. Resp. at 6.3
The Second Circuit has recognized that judicial estoppel may not be applicable if there is
a good faith or inadvertent mistake. See, e.g., Simon v. Safelite Glass Corp., 128 F.3d 68, 73 (2d

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Mr. Tuttle does not address what these actions might be.
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Cir. 1997) (noting judicial estoppel does not apply “when the first statement was the result of a
good faith mistake . . . or an unintentional error”) (citing Ryan Operations G.P. v. SantiamMidwest Lumber Co., 81 F.3d 355, 362 (3d Cir. 1996); John S. Clark Co. v. Faggert & Frieden,
P.C., 65 F.3d 26, 29 (4th Cir. 1995); Konstantinidis v. Chen, 626 F.2d 933, 939–40 (D.C. Cir.
1980)); see also Leahey v. SP Center, LLC, 579 B.R. 13, 19 (S.D.N.Y. 2017) (holding that
“[a]bsent a showing of bad faith on the part of the plaintiffs, there is no reason to preclude them
from pursuing” a claim inconsistent with one taken before the bankruptcy court).
The consideration of bad faith or mistake, however, is a fact-intensive inquiry, more
appropriate at a later stage in this case. The Court does, arguably, have the ability to consider the
bankruptcy case at the motion to dismiss stage, at least as far as it involves matters in the public
record and of which the Court might take judicial notice. See Leonard, 199 F.3d at 107 (“In
adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated
on the face of the complaint, in documents appended to the complaint or incorporated in the
complaint by reference, and to matters of which judicial notice may be taken.”) (internal
quotation marks and citations omitted); Muhammad v. Schriro, No. 13-CV-1962 PKC, 2014 WL
4652564, at *3 (S.D.N.Y. Sept. 18, 2014) (“When a general release has been filed with a court
and is a matter of public record, a court may properly take judicial notice of it, and consider it on
a motion to dismiss.”).
But the Court would be unable to determine whether Mr. Tuttle had demonstrated bad
faith, or whether his position before the Bankruptcy Court was truly taken inadvertently. The
Court therefore cannot and should not decide, on the record currently before it, whether Mr.
Tuttle had taken steps to counsel his bankruptcy attorney on any benefits he thought he was
owed, or what steps he had taken to rectify an omission at the bankruptcy court. The application

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of the doctrine of judicial estoppel is “probably not reducible to any general formula” and it may
apply different “in specific factual contexts.” New Hampshire, 532 U.S. at 751.
Given the fact-bound nature of the inquiry, Defendant’s motion will be denied as to the
estoppel claim, but without prejudice to renewal upon filing of a motion for summary judgment,
after the completion of discovery in this case.
IV.

CONCLUSION
Defendant’s motion to dismiss, ECF No. 12, is DENIED.
SO ORDERED at Bridgeport, Connecticut, this 9th day of March, 2018.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge

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