Brown v. Bi-Lo Holdings, LLC

Filing 38

ORDER granting in part Defendants' 27 Motion for Summary Judgment on judicial estoppel grounds; denying Defendants' 35 request for attorney's fees and costs, as well as their 34 Motion for Oral Argument on Defendants' Motion for Summary Judgment; and ruling that Plaintiff Isaiah Brown's equitable claim for reinstatement shall proceed. Signed by Judge J. Randal Hall on 05/20/2015. (jah)

IN THE

UNITED

STATES

DISTRICT

SOUTHERN DISTRICT

OF

COURT

FOR THE

GEORGIA

BRUNSWICK DIVISION

ISAIAH BROWN,

*

Plaintiff,

*
*

v.

*

WINN-DIXIE STORES, INC.
BI-LO HOLDINGS, LLC,

and

CV 214-052

*
*

Defendants.

*

ORDER

In this action,

his

employment

Dixie")

and

Plaintiff Isaiah Brown alleges that during

with

Defendant

Bi-Lo

"Defendants"),

Holdings,

Defendants

Family Medical

Winn-Dixie

Leave

("Bi-Lo")

interfered with his

Act

when they refused to

LLC

Stores,

("FMLA") , 29

provide

off

("Winn-

(collectively,
rights

U.S.C.

him time

Inc.

§

to

2601

under

et

the

seg. ,

attend physical

therapy appointments following a December 2012 car accident that
occurred while he was on his way to pick up produce from another
Winn-Dixie

store.

failed

pay

to

Mr.

him

compensation

in

("FLSA"),

U.S.C.

29

Defendants

Brown

for

all

violation
§ 201

retaliated

further

hours

of

the
seq.

et

against

claims

worked
Fair

for

and

Labor

Finally,

him

that

(1)

Mr.

for

Defendants

overtime

Standards

Act

Brown alleges

taking

leave

to

recuperate from his back injury in violation of the FMLA and (2)

complaining
violation

of

about

not

the

FLSA

being paid
when

they

for his
terminated

overtime
his

hours

in

employment

on

December

4,

2013.

Presently before

the

Court

Motion for Summary Judgment based on the
estoppel.
GRANTS

(Doc.

27.)

For the

reasons

is

doctrine

that

Defendants'
of

follow,

judicial
the Court

the motion IN PART.

I,

A.

Mr,

BACKGROUND

Brown's Employment History

Mr. Brown began working for Winn-Dixie in 1987 when he was

sixteen-years-old and rose to the position of Produce and Floral

Manager

at

Winn-Dixie

December 4,

358.)
Store

2013.

According
159

management

(Id. at

to

162-65.)

Mr.

before

Doc.

Brown,

required him

late

to

his

29-1,

when he

approximately

regularly
[the]

60

(PL's Dep.,

between

order to get

Store

termination

at 54-55,

worked
2008

111,

at

and

"work off

on
206,

Winn-Dixie
late

the

2010,

clock

in

job done" and he was not paid for doing so.
"[S]ometime before late 2010," Mr.

Brown also

performed "produce resets" at eighteen other Winn-Dixie stores,
but Defendants never paid him for that work either.
gs.)

For

each reset,

fifteen hours,

Mr.

(Id. at gi

Brown would work between eight

and

and such time amounted to "thousands of dollars"

in unpaid wages.

(Id. at 91, 94.)

Beginning in late 2010 while

working at Winn-Dixie Store 60, at least once a week management
directed him to work off the clock "until the job was finished"
and would threaten him with termination if he refused.

236-37,

241.)

Managers,

(Id. at

in fact, would alter Mr. Brown's time

records if he stayed clocked in longer than permitted.

241-44.)

Mr.

Brown

testified

that

he

knew

his

(Id. at

rights

were

violated at the time Defendants failed to pay him for the abovedescribed activities

finally

called

and extended hours

human

about his managers'

resources

in

(id.

at

November

245-46),

2013

to

alteration of his time records

and he

complain

(id. at 243-

45) .

On

December

7,

2012,

Mr.

Brown

was

hit

from

behind

when

stopped at a red light while on his way to pick up produce from

Winn-Dixie

Store

159

to

(Id. at 157; PL's Aff.,
the

accident

broke

the

supplement

certain

Doc. 37, Ex. A. %% 4-6.)
seat

occupied

by

suffered injuries to his neck and back.

58;

PL's Aff.

Brown

[he]

K 7; Adams Aff.,

testified

that

[the]

"the

night

[he]

store manager

Doc.

37,

[he]

got

anything

that

position."

[Mr.

if

Brown]

(PL's Dep.

at

[he]

sees

if [you]

[you]

and

he

% 10.)

C,
the

car

Mr.

accident

couldn't go to the

[a] nd

[he]

any doctors'

wasn't

32-35.)

The

going

was

told by

excuses

to

have

manager "said,

[you]."

or

a

as of

(Id. at 35.)

"So

take leave," you are "not going to have a position when

get back."

believed

in

probably

right now, there's nobody to replace

60.

The force of
Brown,

Ex.

[He]

had to work ...
that

Mr.

Store

(PL's Dep. at 31, 157-

had to go straight back to work.

hospital because

stock at

at

the

been violated.

(Id. ; see also PL's Aff.
time

of

this

(PL's Dep.

interaction

at 35.)
3

f 10.)

that

his

Mr. Brown
rights

had

Instead of calling human

resources,

however,

Mr.

Brown

reached

out

to

other

produce

managers to see if they had anyone under their supervision who
could fill in so that he could take medical leave.
Doc.

37,

Ex.

Mr.

did

not

at 67,

obtain

283),

reschedule

leave

until

late

2013

(id.

at

67;

see also

Between the accident and that time,

numerous

August

2013

at which point Defendants cleared him

to be out until October 28,
13 at 3) .

at 36;

B.)

Brown

(PL's Dep.

(Id.

medical

appointments

Mr.

—

id. , Ex.

Brown had to

for

which

his

insurance was charged a fee — because Defendants would not allow
him to take time off.
Mr.

Brown's

manager

could keep all

of

(PL's Dep.
told

his

him

that

doctor's

283.)

Mr.

Brown

agreed

and

2013,

five

days

ahead

of

Subsequent

to

Mr.

Brown's

at 196-98.)
if

he

While on leave,

came

back

appointments.

returned

schedule.

return,

to

(Id.

work

on

(Id.

at

at

however,

he

early,

he

193-94,

October

281,

23,

283.)

missed

four

scheduled appointments for physical therapy because his manager
did not allow him to take time off despite his earlier promise.
(Id.

at 321-22.)

Immediately

received a

before

series

violations of

of

Mr.

after

performance

Mr.

on August

and December 1, 2013).)

Brown on December 4,

2013.

Brown's

counselings

Winn-Dixie policies.

(including incidents
and 24;

and

1,

(Id. at
9,

and 13;

FMLA

leave,

and warnings
263-69;

id.

November

he

for

Ex.

14,

7

18,

Defendants formally terminated
(Id. at 109-112,

303-05.)

Mr.

Brown repeatedly testified that the manager said he was fired on
November 18,

2013,

"but they didn't have

time

to actually tell

me I was fired" until over two weeks later.

claims

the dismissal

2013.

(Id.)

Indeed,

he

(Id.)

B.

sheet given to him was dated November 18,

Bankruptcy Proceeding

On

February

25,

2 009,

while

employed

by

Defendants,

Mr.

Brown voluntarily filed a Chapter 13 bankruptcy petition in the
United

States

Bankruptcy

Court

Georgia through his counsel,

Mr.

Brown

previously

approximately 1994.

for

the

Southern

Richard Taylor.

filed

a

Chapter

(PL's Dep. at 331.)

personal assets in the 2009 petition,

(Bankr.

Mr.

10.)

IRA,

ERISA,

(Id.)

Keogh,

Lastly,

Mr.

he

indicated

in

(Bankr.

had no

or other pension or profit

Brown

1.)

Brown indicated that

at

represented that

Doc.

On his Schedule B of

had no "contingent or unliquidated claims."

further

that

he

Mr.

Doc.

"interests

1

in

sharing plans."

had

personal property of any kind not already listed."
On his Statement of Financial Affairs,

of

petition

13

he

He

District

no

" [o] ther

(Id. at 11.)

Brown listed only the

wages earned from Winn-Dixie as gross income.

(Id. at 25.)

In

response

participation

in

lawsuits

to

the

and

question

about

administrative

Mr.

Brown's

proceedings

within

the

year

immediately prior to filing his petition, Mr. Brown listed only
a garnishment collection action.

(Id.

at 26.)

Mr. Brown made

these

representations

under

penalty

of

perjury.

(Id.

at

24,

32.)

Under the proposed Chapter 13 plan,

per month for a
trustee

to

period of

his

attorney

administration.

(Bankr.

60 months,
after
Doc.

Brown

Doc.
that

35.)

payment
2.)

the

On February 3,
final

the plan and his
Doc.

60.)

Brown a
Doc.
and

wages

would no

On March 18,

2014,

of

On

According to

Account,

allowable

nine

claims,

but

creditors

(Bankr. Doc.

the

entered

proceeding.

32;

of
the

see also

according

to

(Bankr.

the Bankruptcy Court granted Mr.

only $176.83

Court

Doc.

2009,

longer be withheld.

distributed to them.1
Bankruptcy

5,

had been made

the Chapter 13

unsecured

expenses

the trustee notified Mr.

complete discharge under 11 U.S.C.

63.)

the

May

(Bankr.

2014,

disbursements

Brown paid $53.00

to be distributed by the

Bankruptcy Court confirmed the plan.
Bankr.

Mr.

a

-

a

§ 1328(a).

Trustee's
asserted
mere

Final Report
$15,932.72

1.1 percent -

65 at 3.)

final

(Bankr.

On May 21,

decree

and

in
was

2014,

closed

the

(Bankr. Doc. 66.)

The bankruptcy docket reflects that Mr.

Taylor represented

Mr. Brown throughout the entirety of his bankruptcy proceeding.
On

December

17,

2013,

Mr.

Taylor

contacted

the

Chapter

13

Trustee to request Mr. Brown's payoff amount, as Mr. Brown "lost

his job and wishe[d] to pay the remaining payments with his 401K
1
The Chapter 13 Trustee's Final Report and Account also indicates that
$18,223.89 of unsecured claims were discharged without payment, but the Court
could not reconcile this figure with the $15,932.72 total presented on page
three of the same report.
(See Bankr. Doc. 65 at 1.)
6

as

soon

as

possible."

termination,

Mr.

instant case.

(Doc.

Brown

31-5.)

retained

(PL's Dep.

Immediately

Rita

at 328.)

Spalding

after
pursue

to

his
the

On December 19,

2013,

Ms.

Spalding sent a letter to Mr. Brown's manager at Winn-Dixie and
to

the

General

stated

that

Counsel

"[w]e

for

Bi-Lo.

contend

that

(Doc.

Mr.

29-5.)

for

unpaid

Standards
Act.

Act,

. . .

overtime

and

under

the

terminated

under

(Id.)

When Mr.
he

the

Georgia

Fair

Labor

Whistleblower's

It further warned that Ms.

"currently drafting a Complaint to file on Mr.

2014,

in

The purpose of this letter is to notify you of Mr.

Brown's claims."

(Id.)

letter

Mr. Brown also has a

compensation

possibly

was

Brown

violation of the Family Medical Leave Act.
claim

The

did

Brown ultimately filed this

not

amend

his

bankruptcy

Spalding was

Brown's claims."

suit on April

schedules

or

14,

otherwise

inform the bankruptcy court of his FLSA and FMLA claims against
Defendants.

On

(PL's Dep.

January

23,

at 347-48, 353.)

2015,

comprehensive memorandum
FMLA

claims

that

it

would

sanctions;
(Doc.

are

and

26-1.)

barred

file

(3)
Ten

a

Defendants

(1)
by

sent

arguing that Mr.
judicial

motion

for

estoppel;

summary

Spalding

Brown's
(2)

judgment

a

FLSA and

warning
and

her

explore

urging her to voluntarily dismiss the suit.
days

later,

on

February

2,

moved to reopen his Chapter 13 case.

(Bankr.

Bankruptcy

on

Court

Ms.

granted

that

motion

2015,

Mr.

Doc.

67.)

February

4,

Brown

The
2015.

(Bankr. Doc.

68.)

On February 5,

2015,

Mr. Brown filed amended

schedules to add the following:

1.

the

instant

lawsuit

against

Defendants

with

an

estimated value of $200,000;

2.

a

personal

injury

lawsuit

related

to

the

car

accident at an estimated value of $100,000;
3.

a 401(k)

account with an estimated value of $43,000;

4.

a hardship withdrawal from that account in 2011 in
the amount of $4,900; and

5.

income earned as a personal chef.

(Bankr.

Doc.

69.)

With

the

addition

of

which existed during the pendency of

these

assets,

his bankruptcy,

all

Mr.

of

Brown

now values his assets as worth over $349,000 as compared to the

$1,450

initially identified in his

4; Bankr. Doc.

genuine

SUMMARY JUDGMENT

judgment

dispute

are

as

"material"

is

to

appropriate

any

material

only

if

they

could

Inc.,

facts

in

477 U.S.

the

light

Matsushita Elec.

587

242, 248

most

at

is

no

movant

is

Indus.

Co.

v.

to

"there

and

the

Fed. R. Civ. P. 56(a).

affect

(1986) .

favorable

if

fact

suit under the governing substantive law.
Lobby,

id.

STANDARD

entitled to judgment as a matter of law."
Facts

(See

1 at 6 .)

II.

Summary

2009 petition.

the

outcome

of

Anderson v. Liberty

The Court must view the

the

non-moving

Zenith Radio Corp.,

party,

475 U.S.

(1986) , and must draw "all justifiable inferences in

favor."

U.S.

v.

Four Parcels of Real Prop.,
8

the

941 F.2d 1428,

574,

[its]
1437

(11th Cir.

1991)

(en banc)

(internal punctuation and citations

omitted).

The
Court,

moving

by

reference

motion.

How

Celotex

to

proof

carry

at

1115

(11th

two

this

to

the

initial

materials

v.

burden

1993) .

trial,

on

Catrett,

depends

Fitzpatrick v.

Cir.

ways

has

Corp.

trial.

proof at
of

party

When

burden

file,

477

on

the

U.S.

who

of

basis

317,

bears

non-movant

has

the

for

323

the

City of Atlanta,

the

showing

the

(1986).

burden

2

of

F.3d 1112,

the

burden

of

the movant may carry the initial burden in one

—

by

negating

an

essential

element

of

the

non-

movant's case or by showing that there is no evidence to prove a
fact necessary to the non-movant's case.
Clark,

Inc.,

Adickes
477

v.

U.S.

929

S.H.

in

&

Before

opposition,

movant has met

genuine

Kress

317).

response

F.2d 604,

its

issues

of

606-08

Co.,
the

398

Court

it

must

254

(11th Cir.
U.S.

144

1991)

(1970)

can evaluate

first

the

consider

Coats &

(explaining
and Celotex,
non-movant's

whether

the

initial burden of showing that there are no

material

fact and

judgment as a matter of law.
F.3d 248,

See Clark v.

(11th Cir.

1997)

that

it

is

entitled

Jones v. City of Columbus,
(per curiam) .

to
120

A mere conclusory

statement that the non-movant cannot meet the burden at trial is
insufficient.

Clark,

929 F.2d at 608.

If — and only if - the movant carries its initial burden,
the

non-movant

"demonstrat[ing]

may

avoid

summary

judgment

only

by

that there is indeed a material issue of fact
9

that

precludes

bears

its

summary

judgment."

Id.

the burden of proof at trial,

response

to

the

initial burden.

method

If

negating

a

evidence

by

When

fact,

which

sufficient

to

the

the

movant

a

carried

"must

directed

respond

verdict

trial on the material fact sought to be negated."
2

F.3d at

1116.

material

fact,

If

the

the movant

non-movant

shows

must

tailor

its

evidence affirmatively

non-movant

withstand

non-movant

the non-movant must

the movant presents

material

the

an absence

either

with

motion

at

Fitzpatrick,

of

evidence on a

show that

the

record

contains evidence that was "overlooked or ignored" by the movant
or

"come

withstand

forward

a

with

directed

additional

verdict

motion

alleged evidentiary deficiency."

cannot

carry

repeating
See

burden

conclusory

Morris

Rather,

its

v.

the

Ross,

by

non-movant

at

sufficient

trial

Id.

at

1117.

relying

on

the

allegations
663

evidence

F.2d

must

contained

1032,

with

on

the

The non-movant

pleadings

in

1033-34

respond

based

to

the

(11th

or

by

complaint.
Cir.

affidavits

1981).

or

as

otherwise provided by Federal Rule of Civil Procedure 56.
In

this

notice of

action,

Defendants'

the

Clerk

of

motion for

other

default.

Wainwright,

materials

(Doc.

28.)

in

772 F.2d 822,

notice

825

gave

Mr.

and

the

consequences

requirements

(11th Cir.

1985)

of

of

Griffith v.

(per curiam),

therefore, are satisfied and the motion is ripe for review.
10

Brown

the right to file affidavits

opposition,

The

Court

summary judgment and informed

him of the summary judgment rules,
or

the

Ill,

DISCUSSION

Defendants argue that Mr.

Brown's claims are barred by the

doctrine of judicial estoppel because he failed to disclose them
to the Bankruptcy Court while his Chapter 13
Mr.

Brown

counters

claims and

an

(2)

(1)

he

had

no

duty

to

disclose

his

there is no evidence that he intentionally took

inconsistent

manipulate

that

case was ongoing.

position

the

judicial

under

oath

system.

or

The

otherwise

Court

intended

addresses

each

to
of

these arguments in turn.

A.

Judicial Estoppel

"Judicial
court's

1282,

estoppel

discretion."

1285

is

an equitable

Burnes

(11th Cir.

2002) .

v.

doctrine

Pemco Aeroplex,

Under this

invoked at
Inc.,

doctrine,

291

a

F.3d

a party is

precluded from asserting a claim in a legal proceeding that is
inconsistent

with

proceeding.

Id.

integrity of

the

a

claim

taken

by

that

party

asserting

prejudice.

a

previous

"The purpose of the doctrine is to protect the

judicial process

by prohibiting parties

deliberately changing positions according to

the moment."

in

Id. (quotation omitted).

judicial

estoppel

Id. at 1286.

need

not

the

from

exigencies

of

For this reason, parties
demonstrate

individual

Instead, as the Eleventh Circuit Court

of Appeals recently set forth in D'Antignac v. Deere & Co:

The Supreme Court has enumerated three non-exclusive
considerations that may inform a court's decision of
whether to apply judicial estoppel: (1) whether the
present position is "clearly inconsistent" with the
11

earlier
position;
(2)
whether
another
tribunal
accepted the earlier position; and (3) whether the
party advancing the inconsistent position would derive
an unfair
advantage.
We
have
added
two
other

considerations to the list (1) whether "the allegedly
inconsistent positions were made under oath in a prior
proceeding"; and (2) whether the inconsistences were
"calculated to make a mockery of the judicial system."
These

two

factors

are

not

"inflexible

or

exhaustive;

rather, courts must always give due consideration
all the circumstances of a particular case."
No.

14-10048,

(per curiam)
The

2015

WL 1321570,

at

*2

Court

make

a

additional
the

Mar.

25,

2015)

(internal citations omitted).
now

addresses

(1)

inconsistent positions under oath,
to

(11th Cir.

to

mockery

factors

application

of

of

the

that

whether

and

judicial

guide

judicial

the

(2)

Mr.

whether he

system,

Court's

estoppel

is

Brown

as

intended

well

analysis

as

of

appropriate

took

(3)

whether
in

this

case.

1.

Inconsistent Positions

Under Oath

Mr. Brown took inconsistent positions under oath only if he
had

a

continuing

duty

schedules.

Robinson v.

(11th

2 010) .

Cir.

to

disclose

Tyson Foods,

Mr.

Brown

changes

Inc.,

contends

595

that

in

his

asset

F.3d 1269,
as

a

1274

Chapter

13

debtor pursuing claims under the FLSA and FMLA — as opposed to a

claim

of

employment

discrimination

—

he

did

not

have

a

continuing duty to disclose his assets to the Bankruptcy Court.

(See,

e.g. ,

PL's

Sur-Reply,

Doc.

disagrees.

12

37,

at

15.)

The

Court

"A debtor seeking shelter under the bankruptcy laws must

disclose

all

court."

Burnes,

U.S.C.

§§

or

assets,
291

521(1),

bankruptcy case

potential

F.3d at

1286

541(a)(7)).

is

crucial

assets,
(emphasis

to

the effective

Id.

Importantly,

disclose

does

not

court;

end

once

rather,

circumstances

a

duty to
the

forms

debtor must

change."

Id.

the

bankruptcy

added)

(citing 11

"Full and honest disclosure

federal bankruptcy system."

"[t]he

to

functioning of

F.3d at

Mr.

the

(internal quotations omitted).

are

is

a

continuing one

submitted

amend his

This

to

financial

statutory

the

that

bankruptcy

statements

duty

to

applies in both Chapter 7 and Chapter 13 proceedings.
595

in a

if

disclose

Robinson,

1274.

Brown argues that Muse v.

F. App'x 487
of this case.

(11th Cir. 2005)
In Muse,

Accord Human Res.,

Inc.,

(per curiam), controls the outcome

the debtor filed a Chapter 13 petition

in November 1997 and his plan was confirmed in April 1998.
After confirmation,

129

Id.

the debtor filed suit against the defendants

under the FLSA to recover unpaid overtime wages incurred between

January 2000 and September 2002.
the

debtor's

confirmation.

wage

claim

arose

Id. at 487-88.
both

As a result,

post-petition

After the defendants argued that

and

post-

the debtor was

judicially estopped from asserting the wage claim because he had
failed

to

amend

and

list

it

in his

bankruptcy

schedules,

district court granted their motion for summary judgment.
at 4 88.

The Eleventh Circuit reversed.
13

Id.

at 490.

the

Id.

Based on

its analysis of Telfair v.
the

court addressed the

and 1327(b),

First Union Mortg.

interplay between 11

Corp.,2 in which
U.S.C.

§§

1306(a)

and two decisions of the bankruptcy courts,3 the

court held that because the debtor's unpaid wage
and

post-confirmation

"there

[was]

no

claim accrued

assertion

that

it

was

necessary for the plan," the wage claim was not property of

debtor's estate,

he had no duty to disclose it,

the

and he was not

judicially estopped from bringing an action to recover damages.
Id. at 488-90 (emphasis added).
The

Eleventh

Circuit

interplay between 11 U.S.C.
after

Muse,

however,

(11th Cir. 2008) .

in

Court

of

Appeals

§§ 1306(a)

In re

and 1327(b)

Waldron,

Importantly,

revisited

536

F.3d

the

three years

1239,

1241-43

the Waldron court distinguished

Telfair as addressing only that property of which the debtor is
aware at the time of petition and not "new assets" that a debtor

acquires

after

confirmation.

See

id.

at

1241-43.

Thus,

departing from its rule in Muse, Waldron explicitly held that a
debtor's claims for legal relief of all

types that arise after

the confirmation of a Chapter 13 plan but before the completion

of the plan are property of the bankruptcy estate.

See id.

1241-43,

("It

1245;

see

also

Robinson,

595

F.3d

at

1274

is

undisputed that a pending lawsuit seeking monetary compensation
qualifies as an asset.
2

3
B.R.

216 F.3d 1333

It is also undisputed that such an asset

(11th Cir. 2000).

In re Carter, 258 B.R. 526, 527 (Bankr. S.D. Ga. 2001); In re Ross, 278
269, 274-75 (Bankr. M D. Ga. 2001).
14

qualifies

as

property

citations

omitted).

of

the

bankruptcy

Accordingly,

bankruptcy court did not abuse its

the

estate.") (internal

court

found

that

the

discretion when it required

the plaintiffs to amend their schedule of assets to disclose the
settlement

of

a

claim

for uninsured motorist

after confirmation.

Waldron,

the

Eleventh Circuit

court

reaffirmed

continuing

debtor's

duty to

536

disclose

situation during the pendency of

Burnes, 291 F.3d at 1286)
Although
for all

not

Muse

intents

controlling

is

F.3d at

benefits

that

arose

1244.

In doing so,

precedent

"recognizing a

changes

in

his

his bankruptcy."

financial

Id.

(citing

(emphasis added).

factually

and purposes,

authority.

Const. , Inc. , 487 F.3d 1340,

identical

it

See

is

to

instant

case

unpublished and therefore

Bonilla

1345 n.7

the

v.

(11th Cir.

Baker

Concrete

2007).

It may

be persuasive only insofar as its legal analysis warrants.

See

id.

the

The

Court

finds

Muse

warrants

little

weight

given

Eleventh Circuit's pronounced shift in Waldron on the nature of

post-confirmation
debtors'

continuing

D'Antignac,
75;

B,

assets

statutory

2015 WL 1321570,

see also Smith v.

2014

and

WL 6977889,

subsequent
duty

to

*2

reaffirming

amend.

See,

at *2; Robinson,

Werner Enterprises,

at

holdings

(S.D. Ala.

595 F.3d at 1274-

Inc.,

Nov.

e.g. ,

21,

No.

14-0107-WS-

2014) (analyzing

the application of judicial estoppel to an FLSA claim).
Mr.

Brown attempts to distinguish Waldron by pointing out

that the issue of judicial estoppel was not before the court and
15

the Waldron plaintiffs received the proceeds of
while

settlement

Resp.,

Doc. 31-1,

the

bankruptcy

at 16.)

was

still

their insurance

pending.

(PL's

Moreover, as in D'Antignac, Mr. Brown

latches on to the following Waldron quote:

"We do not hold that

a debtor has a free-standing duty to disclose the acquisition of

any property interest after the confirmation of his plan under
Chapter

13.

Neither

the

Bankruptcy

Rules mention such a duty."

Code

(PL's Resp.

nor

the

at 8-12;

Bankruptcy

Sur-Reply at

16-18 (quoting Waldron, 536 F.3d at 1246).)
The

Court

material.

whether

does

First,

a

property

not

find any of

distinctions

to

be

although the issue in Waldron was limited to

post-confirmation
of

these

the bankruptcy

claim for
estate,

insurance

536

F.3d

benefits

at

1241,

is
that

inquiry informs precisely what a debtor must disclose, see Muse,

129 F. App'x at 489 ("Because [the claim]

was not part of the

bankruptcy estate, Muse had no duty to disclose it.")(emphasis
added).

Whether a debtor is required to disclose an asset or

claim in turn informs the Court's judicial

See

Robinson,

positions

595

under

F.3d

at

oath only

1274

if

estoppel

("Robinson took

she

analysis.

inconsistent

had a continuing

duty

to

disclose changes in her bankruptcy asset schedule.")

That the

phrase

Waldron,

"judicial

therefore,

estoppel"

is of no moment.

does

not

appear

And despite Mr.

in

Brown's argument

that Waldron is distinguishable on this ground in his sur-reply

brief,

he

appears

to

acknowledge
16

elsewhere

how crucial

the

Waldron inquiry is — he dedicates

almost

the

entirety of his

response brief to the very topic of distinguishing between postand pre-petitions claims when considering the debtor's duty to
disclose.

(See PL's Resp. at 6-14.)

Second,
proceeds

pending

that

from

is

Mr.

the

Brown did

instant

irrelevant:

bankruptcy laws must

of

§§

such

521(1),

"assets

"[a]

pay

his

debtor

Burnes,

541(a)(7))
the

...

creditors"

in

his

seeking

shelter

291 F.3d at

and

as

Defendants

damages
still

under

the

assets,

1286

(citing 11

The

disclosure

(emphasis added).
trustee

the

or potential

creditors

a modification of

or,

hand

bankruptcy was

disclose all assets,

gives

right to request

have

suit while

to the bankruptcy court."

U.S.C.

not

a

meaningful

the debtor's plan to
emphasize,

grant

the

trustee an opportunity to "to settle the claims and obtain money
for the
F.3d at

creditors"

Br.,

Doc.

27,

at

18).

Waldron,

as to the oft-cited Waldron quote identified above,

Brown

"takes [it] out of context and distorts its meaning.
In Waldron,
the debtor argue [d]
that
a
duty to
disclose assets acquired after confirmation unduly
burdens Chapter 13 debtors because they would have to
amend their bankruptcy schedules
every time
they

received wages,
of

536

1245.

Third,
Mr.

(Defs.'

gas.

bought groceries,

Id.

at

1245.

In

or filled up a tank

response,

the

Eleventh

Circuit pointed out that "these assets are the kind
that are taken into account by the debtor's plan or
are consumed after having been purchased with assets
vested

in

the

46.

Thus,

duty

to

debtor

the

court

disclose

at

confirmation."

clarified

"any

property
17

that

Id.

there

interest"

at

is

1245-

not

a

acquired

post-confirmation,
entitled
court

to

learn

had

not

Ga.

Mar.

13,

about

Id.

disclosed
536

App'x

damages

No.

when

to

the

841

arising

that

confirmed

is
the
the

Doc.

78,

aff'd,

25, 2015).

at 13

No.

(S.D.

14-10048,

Legal claims arising

such as a suit for insurance benefits or the

F.3d at

837,

court

asset

it

CV 110-116,

(11th Cir. Mar.

filing of EEOC charges,

F.

substantial

a

2013)(second emphasis added),

post-confirmation,

Waldron,

"bankruptcy

(emphasis added).

Deere & Co.,

2015 WL 1321570

be

the

considered

debtor's plan."
D'Antignac v.

but

fall into the
bankruptcy

1242;

of

court.

Casanova v.

(11th

out

latter category and must

Cir.

See

see

Pre Solutions,

2007) .

purported

id.;

A

FLSA

claim

and

Inc.,

for

FMLA

also
228

monetary

violations

presents an even more compelling argument for disclosure given
that such an award serves,

replacement.

fulfill
Muse,

the
129

estate —

at

unpaid wage

and

part,

App'x

therefore

"there

[was]

as a

as Brown concedes,

bankruptcy plan."
F.

plaintiff's

in

These wages,

at least in part,

(PL's

489

did not

no

have

part

to

13.)

pre-Waldron

not

assertion

"were necessary to

Sur-Reply at

(finding

claim was

form of wage

be

that

of

the

that

the

bankruptcy

disclosed —

those

Cf.

because,

assets

were

necessary to meet the terms of the bankruptcy plan").
In sum, Mr. Brown had a duty to disclose his claims to the

Bankruptcy Court.

Mr.

Brown

proceeding.

took

The Court thus moves

inconsistent

positions

On this element,

there
18

on to address whether

under

oath

in

a

prior

is little dispute.

The

Eleventh

Circuit

has

held

that

"failure

to

timely

amend

a

Chapter 13 reorganization plan to reflect a pending claim while
simultaneously
constitutes
F.3d at

1286.

claim

(citing Ajaka v.

1344

When

under

that

inconsistent positions

1275

F.3d 1339,

pursing

(11th Cir.

Mr.

oath,

Brown

[he]

2006));

submitted

instant

Defendants,

[he]

of

immediately

or

after

at

reflect
had

no

[his]

when

two

291 F.3d at

schedules

update

FMLA

453

those

Thus,

suit

when

against

before

claims

to

pursuing

his

in

actions,

of

on

assets

hired

or

Ms.

December

statement

Spalding

4,

2013

to

when he actually filed suit on April 14,

time

claims

inconsistent."

would

and

he

termination

the

pending claim," Mr.

legal

retaliation

Corp.,

bankruptcy

[he]

schedule

"By failing to update

simultaneously

"These

forms

his

any

proceeding.

595

595 F.3d at 1275.

FLSA

amend his

affairs

prosecute this action,
2014,

Robinson,

Id.

Brown did not

financial

law

had a "sworn duty to disclose" those claims to

the Bankruptcy Court.
Mr.

[his]

that

Mr.

the

of

see also Burnes,

Robinson,

filed

court

under oath."

"submitted

also

another

BrooksAmerica Mortg.

schedules as required."

Brown

in

this

both

closing

Id.

19

Chapter

Brown "represented that
bankruptcy

unpaid

taken

his

13

[his] bankruptcy schedule to

the

Court.

of

wage,

while

interference,

Robinson,

under

court"

595

F.3d

oath,

are

[he]

at

and
1275.

clearly

Intentional Mockery of the Judicial System

2.
As

Mr.

Brown

took

inconsistent

whether judicial estoppel may be

factor:

whether

court.

Mr.

"[T]he

situations

doctrine

has

often

of

the

record.

Id.

at

1287;

failure

to

knowledge

of

system
595

Burnes,

Inc. ,

179

can

in

general,

197,

205

bankruptcy

not

simple

intentional

inferred
1275.

from

A

debtor

the

"debtor's

duty

either

or has no motive

(5th

in

The Eleventh

disclosure
the

second

applies

or

be

F.3d at

291 F.3d at 1287

F.3d

estoppel

statutory

the undisclosed claims

concealment."
Plains,

when,

the

deliberate

oath,

on the

291 F.3d at 1286.

Robinson,

its

under

contradictions,

that

judicial

satisfy
only

judicial

Burnes,
held

manipulation

*inadvertent'

of

intentional

error or inadvertence."
Circuit

applied hinges

intentionally misled

Brown

involving

positions

is
lacks

for their

(quoting In re Coastal

Cir.

1999)).

Thus,

the

requisite intent can be inferred if the debtor "both knew about
the undisclosed claims

bankruptcy court."
595 F.3d at 1275;

F.3d at

1295.

may

properly

be

Bennett

v.

De Leon,
Casanova,

inferred

Flagstar

relevant

motive

to

conceal

321 F.3d at 1291;

them

228 F. App'x at 840-41;

Bank,

nondisclosure."

No.

8, 2011)

inquiry

is

Casanova,

from

a

relatively

2:10-cv-181,

(citing Robinson,

the

debtor's

Barger,

sparse

2011

WL

348

"intent
record."

6152940,

at

595 F.3d at 1275).

intent

228 F. App'x at 841.
20

from the

accord Robinson,

Where knowledge and motive are present,

*4 (S.D. Ga. Dec.

The

and had a

"at

the

time

of

The

inference

knowledge

and

mandatory.

of

intent

motive,

Smith,

however,

plaintiff

from

is

2014 WL 6977889,

A trial court's finding of

the

drawn

at *3

sufficient

only,

of

not

(citations omitted).
"overturn[ed]" should

evidence"

particular case out of the "general" rule.
at

existence

permissive

intent may be

"presen[t]

the

to

Robinson,

take

a

595 F.3d

1275-76.

Knowledge

a.

Mr. Brown indisputably had knowledge of his FLSA and FLMA
claims

while

his

bankruptcy

case

was

pending.

Mr.

Brown

retained an attorney immediately after his discharge on December

4,

2013 to pursue this case.

attorney

sent

representation,"
litigation
December

hold,

19,

Defendants

(See PL's Dep.

a

identifying
as

2013.

well

his

as

(PL's

letter

on March 18,

2014

Sur-Reply

that

debtor

who

at

[them]

requesting

reinstatement,

7;

Doc.

29-4.)

His

of

a
on
He

2014,

which was after his

but before

the closing of his

Chapter 13 case on May 21, 2014.

(finding

and

Brown's

ultimately filed suit on April 14,
discharge

"notifying

claims,

Mr.

at 328.)

See Burnes,

filed

and

291 F.3d at 1288

pursued

employment

discrimination claims during pendency of Chapter 13 case clearly
had knowledge of the claims).

21

Motive

Jb.

"[A]
13

financial motive to secret assets exists under Chapter

. . . because the hiding of assets affects the amount to be

discounted and repaid."
Burnes,

to

De

291 F.3d at 1288

gain

an

discrimination

Leon,

F.3d at

1291;

(finding that Chapter 13

advantage"
claims

321

by

because

concealing

it

was

also

debtor "stood

his

"unlikely

see

he

employment
would

have

received the benefit of a conversion to Chapter 7 followed by a

no asset,

the

complete discharge had his creditors,

bankruptcy

dollars

in

damages");

discrimination

benefit

court

claims

known

of

Barger,
from

a
348

the

[the Chapter 7 debtor]

or

claiming millions

lawsuit

the trustee,

of

F.3d at

schedule

because,

of

1296

("Omitting the

assets

appeared

to

by omitting the claims,

she could keep any proceeds for herself and not have them become
part of the bankruptcy estate.").

Turning to the specifics of this case, there is substantial
evidence

claims

hired

of

Mr.

Brown's

motive

to

from the Bankruptcy Court.

counsel

to

pursue

this

conceal

At

matter

unsecured creditors held claims

his

FLSA

and

the time that Mr.

in

December

totaling more

FMLA

Brown

2013,

than $15,000 but

were being paid at a rate that would return pennies to them,

anything.

his

if

The unpaid claims were scheduled to be extinguished

imminently and were

so extinguished by the Bankruptcy Court's

discharge on March 18,

2014.

Mr.

Brown filed his Complaint

approximately one month later, and within the next few weeks his
22

bankruptcy case was closed.
In this same time frame,
tremendous

value

testified that

to

his

for the

him "thousands"

of

2009,

and

in

December

remedies

in

an

benefits,

equal

the

Dep.

inter

FMLA,

Defendants

Brown

owed

which he

90-91,

alia,

"all

Plaintiff's

lost

damages

reinstatement,

employment benefits,

to

245-46.)

Mr.

and
past

liquidated damages

wages

and

employment

plus any actual monetary losses sustained by Plaintiff

attorney's

fee,

reasonable

costs of the action."
595 F.3d at

1276,

damages."

the

a reasonable

fees,

and

other

As in Robinson,

Brown "obviously had some expectation of

as

(See CompL
by

witnesses'

(CompL, Doc. 1, 1 31.)

Mr.

recovery,"

plus interest,

expert

he

sought compensatory

damages, all costs, and "all

confirmed

at

including

as a direct result of the violation,

monetary

alone,

Mr.

Spalding purportedly began to draft

requests,

lost wages,

amount

claims.

in uncompensated overtime,

(PL's

allowed under

and future

FMLA

Brown attached

the time Defendants failed to pay him in

which Ms.

2013,

and

"produce resets"

2010.

Brown's Complaint,

FLSA

dollars

knew to be unlawful at
2008,

it is clear that Mr.

at

$200,000

[other]

11-14.)
value

and

liquidated

appropriate and allowable

This

inference

assessment

Mr.

is

Brown

only
later

assigned to this case on his amended schedules, which the Court
notes

is

injuries

double

the

suffered

(Bankr. Doc.

worth

in

the

he

ascribes

aggravating

69 at 3.)
23

to

the

neck

automobile

and

back

accident.

Moreover,

Mr.

Brown simply could not have

his bankruptcy case

forgotten about

in December during his case preparation or

in April when he filed suit.

As the Court previously mentioned,

sometime on or before December 17, 2013,

Mr.

Brown contacted his

bankruptcy counsel to request a payoff amount given his newfound
unemployment.

(Doc.

completed

instructional

an

management,

filed

the

as

31-5.)

required

mandatory

three days later.

On December

by

course

the

(Id.)

notice

(Bankr.
the

of

Completion

Doc.

60) .

Complaint

Report

and

of

Plan

Account,

matter,

Doc.

56.)

Bankruptcy

which

65.)

At

any of

(Bankr. Docs.
on

58, 59) and

February

3,

times,

have notified the Bankruptcy Court,

his

creditors

about

undisputed evidence,

his

received
on

Mr.

the
its

Trustee's
cover

Final

that

over

(Bankr.

Brown could and should

the Chapter 13 Trustee,

potentially

however,

2014

only days before he filed

reflected

these

Court

including

$18,000 in claims had been discharged without payment.
Doc.

He

Brown received several

Payments

he

Brown

financial

from the Bankruptcy Court,

On April 4, 2014,

in this

Mr.

personal

the

Mr.

a Release of Wages on January 13, 2014
a

2013,

(Bankr.

with

Thereafter,

significant communications

in

Code.

certification

27,

valuable

is that Mr.

claims.

and

The

Brown took no action

even though there was a five-month window between the point he
retained counsel to initiate the instant prosecution in December
2014 and the final decree closing his bankruptcy case on May 21,

2014.

At the very minimum,

Mr. Brown had a one-month window to
24

act from the date on which he actually filed the Complaint.
Mr. Brown had knowledge of his claims during the pendency of

his Chapter 13 case and a clear motive to conceal them.
duly considered the particular circumstances

Court infers that Mr.

of

this

Having

case,

the

Brown intended to manipulate the judicial

system.
Addi tional

3.

The

the

Court

has

focused on the

application of

inconsistent
of

the

"these

judicial

positions

judicial

Factors

estoppel

system.

Here,

in

the

factors

Eleventh

intentional

both

are

are not

met.

guiding

Circuit:

manipulation
Nevertheless,

inflexible or exhaustive;

courts must always give due consideration to all of the

circumstances of a particular case."
The

primary

under oath and

two enumerated factors

rather,

two

Court

now

turns

to

other

Burnes,

circumstances

291 F.3d at 1286.
in

this

case

which

have been found relevant by courts in this circuit.

Access to Counsel

a.

The

Bankruptcy

Court

docket

reflects

that

Mr.

Brown

was

represented by counsel for the entire duration of his Chapter 13
case.

whose

Cf. Burnes,

undisclosed

entirety of

his

291 F.3d at 1284

claims

were

(noting that the plaintiff

estopped

"had a

bankruptcy proceeding");

lawyer

Barger,

348

for

F.3d

the

at

1295 (holding that the plaintiff was barred by judicial estoppel
-

even

though

the

plaintiff

notified

25

her

bankruptcy

attorney

about

her

discrimination

suit —

because

she

voluntarily

her attorney and could not "avoid the consequences of

chose

the acts

or omissions of this freely selected agent").
In addition

to

his

bankruptcy counsel,

Mr.

Brown retained

W. Douglas Adams on December 9, 2012 — two days after suffering

injuries

in

the

work-related

car

with respect to those interests.

1 11.)
Mr.

accident

—

(PL's Dep.

to

represent

at 51;

PL's Aff.

By December 19, 2012, Mr. Adams began corresponding with

Brown's

records.

health

(Docs.

care

29-3,

providers

to

collect

his

treatment

29-4.)

Upon his termination,

Mr. Brown also retained Ms. Spalding

as counsel to pursue his claims under the FLSA and FMLA.
29-5.)

By

letter
the

him

December

"contend[ing]

Family

Medical

19,

2013,

Mr.

Brown was

Leave

Mr.

Act,"

Spalding

(Doc.

sent Defendants

a

terminated in violation of
"ha[d]

a

claim

for

unpaid

overtime compensation under the Fair Labor Standards Act," and

was "currently drafting a Complaint."

(Id.)

threefold representation,

evidence

ever

informed

claims

or

his

told

there

bankruptcy

Ms.

is no

counsel

Spalding

about

about

his

Yet, despite this

the

that
FLSA

ongoing

Mr.
and

Brown
FMLA

bankruptcy

proceeding despite being in contact with his bankruptcy counsel
mere days before Ms.
the first time.4

Spalding communicated with Defendants for

These facts strengthen the inference that Mr.

4
In Ajaka, there was "significant evidence" that the plaintiff's
attorneys intended to amend the bankruptcy schedules before any defendant
invoked judicial estoppel, and that evidence was sufficient to create a
26

Brown intentionally concealed his claims during the window when
both cases were pending.

Prejudice

Jb.

Another factor is whether Mr.

Brown successfully misled the

court and derived an unfair advantage over an opposing party.5
See Ajaka,
U.S.

453 F.3d at 1344

742,

751

(2001)).

(citing New Hampshire v.

Here,

Mr.

Brown misled

Maine,

the

Bankruptcy

Court and gained an unfair advantage over his creditors.

normal

case

Chapter 13
right

to

"[t]he

disclosure

cases]

gives

the

request,

under

[11

of

post-confirmation

§

1329],

the debtor's plan to pay his creditors."

1245
file

which

(emphasis
the

added).

instant

was

Had

lawsuit

pre-discharge,

Mr.

in

Brown

December

his

a

disclosed

creditors

he

[in

meaningful

modification of

Waldron,

when

In the

assets

trustee and creditors a
U.S.C.

532

536 F.3d at

his

intent

retained

would

to

counsel,

have

had

the

opportunity to "move the bankruptcy court to modify the plan to

increase

percentage

payments

of

the

made

by

creditors'

the

debtor

claims."

to

Id.

satisfy

By

the

a

larger

time

Mr.

Brown actually filed the instant suit, which was post-discharge,
genuine issue of material fact as to whether the plaintiff intended to
manipulate the judicial system.
453 F.3d at 1346.
In contrast, there is no
evidence in this case that Mr. Brown or his attorneys ever sought to disclose

either his personal injury claim or his FLSA and FMLA claims to
bankruptcy court before Defendants raised the issue of judicial estoppel.

the

5
There is no requirement that the party invoking the judicial estoppel
show prejudice.
Ajaka, 453 F.3d at 1345; see also Burnes, 291 F.3d at 1286
("[S]ince the doctrine is intended to protect the judicial system, those
asserting judicial estoppel need not demonstrate individual prejudice.").
Thus, the fact that Defendants have not been prejudiced in this matter does
not preclude the application of judicial estoppel in this case.
27

he

foreclosed

any

such

opportunity

for

his

creditors:

only

before the completion of plan payments may the plan be modified.
11

U.S.C.

§

1329(a).

requisite disclosures
his

potentially

Simply,

and his

valuable

Mr.

Brown

failed

to

make

the

creditors were never informed of

discrimination

claims

prior

to

the

closing of the bankruptcy case.

Therefore, this case is distinguishable from Ajaka, 453 F.3d

at 1345-46,

which held that judicial estoppel did not bar Truth

in Lending Act claims where the plaintiff's bankruptcy creditors
received notice of the claims shortly after confirmation and had

an

opportunity

reason,

to

revoke

the

Chapter

this case is unlike Strauss v.

App'x

821,

823

(11th

Cir.

2006),

13

plan.

For

Rent-A-Ctr.,

which

held

the

Inc.,

that

same

192 F.

judicial

estoppel did not apply where the plaintiff was not successful in
misleading

the

first

tribunal

because

the

bankruptcy

"never entered any order discharging any of
debts."

(S.D.

See

Ga.

also

2008)

undisclosed

Thompson v.

(Alaimo,

personal

Quarles,

J.)

injury

392

(declining

claims

where

court

[the plaintiff's]
B.R.

to

517,

bar

527,

529

plaintiffs'

judicial

estoppel

argument was raised while the bankruptcy case was ongoing, there
was

still time to give creditors an opportunity to modify the

plan,

and

the

integrity of the bankruptcy proceeding was not

seriously impaired) .
365

F.3d

because

1268,

the

Similarly, Parker v. Wendy's Int'1, Inc.,

1269-72

plaintiff

(11th

Cir.

notified
28

the

2004),

is

bankruptcy

distinguishable

court

of

her

discrimination
estoppel as

claims

before

a defense,

her

employer

raised

judicial

and the Chapter 7 Trustee intervened in

the discrimination suit as the real party in interest.6
the

present

creditors

In

case,

there

was

minimal

prejudice

to

Unlike

bankruptcy

in these other cases.

response

to

Defendants'

warning

in

January

2015

that

they intended to pursue an aggressive judicial estoppel defense,

Mr.

Brown

reopened

his

undisclosed claims.

Circuit

found

circumstances

(Bankr.

that

a

bankruptcy."

Brown's

Doc.

291

unsecured

proceeding

67.)

motion

"acknowledge[d] ,

disclosing [the lawsuit]

his

bankruptcy

include

In Burnes,

to

at

to

reopen

least

the

the Eleventh

under

similar

implicitly,

that

would have likely changed the result of

F.3d at

creditors

1288.

could

The

have

inference

received

a

that

Mr.

substantial

amount more than $176.83 is equally as strong in this case,

as

his amended schedules reflect a roughly 24,000 percent increase
in his

assets -

dollars.

states

from a mere

Indeed,

that

he

Mr.

"needs

$1,450

to several hundred thousand

Brown's motion to reopen is explicit:

to

amend

some

portions

of

his

he

petition

which could lead to all unsecured creditors being paid in full -

100%." (Bankr. Doc. 67 1 2 (emphasis added).)
Allowing

[Mr.

Brown]

to

back-up,

re-open

the

bankruptcy case, and amend his bankruptcy filings,
only after his omission has been challenged by an
adversary, suggests that a debtor should consider
6

See also Thompson,

392 B.R.

at 528 n.12

inapplicable to Chapter 13 cases).
29

(explaining why Parker is

disclosing potential assets only if he is caught
concealing them.
This so-called remedy would only
diminish
the
necessary
incentive
to
provide
the
bankruptcy court with a truthful disclosure of the
debtors'

Burnes,

291

("Finally,
include

assets.

F.3d

at

Barger's

her

1288;

see

attempt

to

discrimination

light she would like.
estate

after

the

also

Barger,

348

F.3d

at

1297

reopen the bankruptcy estate

claim hardly casts

her

in

the

to

good

She only sought to reopen the bankruptcy

defendants

moved

the

district

court

to

enter

summary judgment against her on judicial estoppel grounds.").
In sum,
between Mr.

substantial time passed — approximately nine months
Brown's

the receipt of
reopen
the

and

initiation of

suit

benefit already occurred;

subsequent

prospect

this

of

amendments,

judicial

estoppel

cannot easily undo his damage.7

Mr.

which
was

and disclosure —

and

Brown's motion to

transpired
raised

by

only

after

Defendants,

This Court will not incentivize

such conduct that places the integrity of

the judicial process

in jeopardy.

7

At this time,

Mr. Brown's creditors cannot move to revoke the discharge

as procured through fraud because such a motion must be made within one year
11 U.S.C. § 1328(e).
The
of discharge, i.e. before March 18, 2015.
Bankruptcy Court issued notice to Mr. Brown's creditors of his Motion to
(Bankr. Doc. 70.)
Mr.
Reopen via first class mail on February 6, 2015.
Brown's creditors - as well as the Chapter 13 Trustee - therefore, had forty
days, at most, to seek revocation through the initiation of an adversary
proceeding.

See Fed. R. Bankr. P. 7001(4).
30

Mr.

4 .

Mr.

Brown's Rebuttal

Brown attempts

to

rebut

the

Court's

conclusion by

(1)

submitting an affidavit in which he avers "I had no intention to

conceal my claims against Winn Dixie for overtime wages and for
interference and retaliation in violation of the

bankruptcy court;"

(2)

pointing to

[FMLA]

from the

one line in his deposition,

in which he testified "[t]hat is something I was not even aware
of"

when

asked

about

his

bankruptcy

amend those filings;

and

(3)

should

the

legal

be

bankruptcy
made

whether

court

affirmative

was

[sic]

was

claims

in

not

existence

representations

initially

and

his

duty

to

arguing that "the relevant inquiry

assets," not the mere "fail[ing]

bankruptcy

filings

to

at

the

disclosed

the

[c]ourt

the

the

time

to

debt

regarding

his

to come forward years after the

filed."

(PL's

Sur-Reply

at

6,

12;

PL's Dep. at 349-52; PL's Aff. fl 14.)
First,

self-serving affidavits are not sufficient to create

an issue of fact for trial.
No.

12-22302-CIV,

2014);

2014 WL 1333212,

Tidwell-Williams v.

CV-1726A-JEC,

1998

(citations omitted).

contradict Mr.

Kirkland v.

WL

Nw.

1674745,
Second,

Ga.
at

Everglades Corr.

at *4 n.6

(S.D.

Health Sys.,
*6

(N.D.

Ga.

Fla.

Inst.,

Mar.

31,

Inc.,

No.

1:97-

Nov.

19,

1998)

other facts in the record tend to

Brown's deposition testimony.

Despite not being

"aware" of his obligation to amend, Mr. Brown moved four times
post-confirmation —

in January 2010,

December 2010,

July 2011,

and again in November 2013 - to add creditors to his bankruptcy
31

plan

for

original

courts

unsecured

debts

petition.

(Bankr.

in this circuit do

"significant"

existing

claim

in

an

e.g. ,

Smith

(citing

v.

v.

l:07-cv-00112-JOF,

2d

1367,

1373

Docs.

between

37,

42,

the

original

Enters.,

to

include

46,

failure

bankruptcy

Inc.,

2009

WL

2014

Sch.

Morehouse

and Snowden v.

forgot

52.)

to

the

Third,

disclose

petition

of

4798217,

at

*7

WL

and

Med.,
(N.D.

the

Ala.

2006)).

dispositive standing alone;

But

this

at

Inc.,
Ga.

an

See,

6977889,

Fred's Stores of Tenn. , Inc.,

(M.D.

in

a new claim in an amended filing.

Werner

Roots

he

recognize and carefully consider the

distinction

untimely disclosure of

2009)

that

*4

No.

Dec.

8,

419 F. Supp.

distinction

is

not

it is merely one consideration among

many to determine whether the inference of intent is appropriate
What Mr. Brown advances the law should be is

is any given case.
simply

not

what

the

law

is:

debtors'

duty

to

"continuing one that does not end once

the

to

debtor

the

bankruptcy

financial

statements

means "comfing]
filed."

Burnes,

court;
if

rather,

a

circumstances

disclose

is

a

forms are submitted

must

change,"

amend

even

if

his
that

forward years after the bankruptcy was initially
291 F.3d at 1286.

In the absence of any other evidence proffered by Mr. Brown
and

in

light

of

the

Court's

relevant circumstances,

exhaustive

consideration of

other

including that this case is not one of

affirmative misrepresentation,

the

Court

has failed to show that the inference of
32

still

finds Mr.

Brown

intent is not warranted

in this case.

B.

Application of Judicial Estoppel to Mr. Brown's Claim
for Reinstatement

In Burnes,

the

court decided that while

judicial estoppel

barred the plaintiff from pursuing claims for monetary damages,

the doctrine did not prohibit him from pursuing claims which add
no monetary value

to the bankruptcy estate.

Following this rule,

291

estoppel

for

like

does

not

injunctive

Defendants

the

plaintiffs

prohibit

relief

in Burnes

Mr.

that

seek to estop Mr.

on account of

1289.

the court allowed the plaintiff to proceed

on his request for reinstatement in Barger.

Therefore,

F.3d at

Brown

he

348

and

F.3d at 1297.

Barger,

from pursuing

may

have.

To

judicial

any

the

claims

extent

Brown from asserting these claims

nondisclosure,

their motion for summary judgment

is DENIED.

C.

Defendants'

Request for Attorney's Fees & Costs

Defendants request "all of
in

litigating

Brown's

the

counsel

Plaintiff's
estoppel."

present

their attorney's fees and costs

action,"

emphasizing

they

sent

"a detailed letter,

citing case

law,

regarding

application

of

judicial

bankruptcy
(Defs.'

Br.

and
at

the

19.)

They assert

that Mr.

Mr.

Brown's

counsel "ignored" their letter and "simply reopened Plaintiff's

bankruptcy

and

has

continued

to

(Id.)

33

litigate

Plaintiff's

claims."

The Court DENIES Defendants'

does

not

prohibit

Mr.

Brown

including reinstatement,
29

U.S.C.

§ 216(b);

Defendants
award,

did

not

request,

from

23,

pursuing

judicial estoppel

equitable

relief,

under either the FLSA or the FMLA.

29

U.S.C.

present

any

§

2617(a)(1)(B).

authority

in

See

Moreover,

support

of

a

fee

and their sole factual allegation appears to be that Ms.

Spalding failed to offer "argument,
rebut

as

Defendants'

2015

position"

as

explanation,

or case law to

outlined in Defendants'

courtesy memorandum.

(See Defs.'

Br.

at

January

19.)

The

Court is unaware of any duty that would require Ms. Spalding to
do

In any

so.

Spalding

case,

submitted

once

two

Defendants

twenty-page

filed

briefs

this
on

motion,

behalf

Ms.

of

her

client in a rigorous effort to rebut the application of judicial
estoppel,

both

Eleventh

Circuit

of

which

precedent,

incorporated
including

extensive
one

citation

decision

with

to

facts

identical to this case that has not been expressly overruled.8
See generally Muse,
the

Court

cannot

129 F. App'x 487.

find

that

Defendants

For these reasons also,
are

entitled

to

fees

and

costs.

8

As

the

Honorable

Anthony

A.

Alaimo

observed,

"the

application

of

judicial estoppel in non-bankruptcy courts to bar debtors' causes of action
against purported tortfeasors[, among others,] could be described as a
doctrine run amok."

Thompson v. Quarles, 392 B.R. 517, 525 (S.D. Ga. 2008).

"Disagreement among jurists and discord in case outcomes has been caused by a
motley assortment of suspicious behavior by suspected dissembling debtors; a
group of technical, inscrutable, overlapping, and inconsistent bankruptcy
statutes; an ignorance of bankruptcy procedures and practicalities by nonbankruptcy courts and practitioners; confusion over which law applies, state
or federal; and an endless variance in the circumstances of individual
cases/'

Id.

at

526.

34

Ill,

For

Defendants

the

foregoing

Winn-Dixie

CONCLUSION

reasons,

Stores,

Inc.

the

Court

and

Bi-Lo

GRANTS

IN

Holdings,

LLC's

Motion for Summary Judgment on judicial estoppel grounds.
27.)

The

and costs,

19;

Doc.

Court
as

35.)

DENIES

Defendants'

request

for

(Doc.

attorney's

well as their Motion for Oral Argument.

Plaintiff

Isaiah

Brown's

PART

equitable

fees

(Id.

claim

at

for

reinstatement SHALL proceed.

ORDER ENTERED at Augusta, Georgia, this £^j2_~<day
^

2015.

of May,

N

HONOR^BLET J. RANDAL HALL
UNITED

STATES

DISTRICT JUDGE

SOUTHERN DISTRICT

35

OF

GEORGIA