Brunet et al v. Senior Home Care, Inc. et al

Filing 30

ORDER & REASONS: granting 15 defendants' Motion to Dismiss; denying 29 Motion for Leave to File Reply. Signed by Judge Carl Barbier on 2/5/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BRUNET ET AL.

CIVIL ACTION

VERSUS

NO: 14-2519

SENIOR HOME CARE, INC.
ET AL.

SECTION: “J” (5)

ORDER & REASONS
Before
Synergy,

the

Inc.,

Court
and

is

Lynne

Defendants
Hebert’s

Senior

Partial

Home

Care,

Motion

to

Inc.,

Dismiss

(Rec. Doc. 15) and an opposition thereto filed by Plaintiffs
Jayme

Brunet,

Sonya

Kay

Robinette,

Patricia

Wall,

Geraldine

Ward, and Kassandra Williams. (Rec. Doc. 28) Having considered
the motions and memoranda, the record, and the applicable law,
the Court finds that the Defendants’ motion should be GRANTED
for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This litigation derives from Plaintiffs’ claims for unpaid
overtime compensation. (Rec. Doc. 1) Plaintiffs are Registered
Nurses who allege that they were Defendants’ employees. Id. at
2-5. Plaintiffs further allege that, “[d]ue to the manner in
which [they] were paid and the nature of their duties, they are
not

exempt

employees

[with

the

meaning

of

the

Fair

Labor

Standards Act (FLSA), 29 U.S.C. § 201 et seq.,] and are entitled
to overtime pay for all hours worked over forty (40) hours in

any work week.” Id. at 8. Yet, Plaintiffs allege that Defendants
failed to pay them overtime compensation as required under the
FLSA. Id.
Plaintiffs opted into an FLSA collective action in the U.S.
District Court for the Northern District of Florida, Beckworth
v. Senior Home Care, Inc., et al., No. 12-351. Id. at 2. The
plaintiffs in Beckworth made the same claims that Plaintiffs
advance herein. (Rec. Doc. 15-1, pp. 1-2) On September 5, 2014,
the court granted defendants’ motion to decertify the collective
action and dismissed without prejudice the opt-in class’ claims.
Id. at 2; (Rec. Doc. 1, p. 2). In doing so, the court tolled the
statute of limitations for a period of sixty days from the date
of the order. (Rec. Doc. 1, p. 2; Rec. Doc. 15-1, p. 2)
Plaintiffs then filed the instant action on November 3,
2015.

(Rec.

Doc.

1;

Rec.

Doc.

15-1,

p.

2)

Plaintiffs

seek

judgment enjoining Defendants from the complained-of conduct, a
declaration

that

Defendants

willfully

violated

the

FLSA,

compensation for unpaid overtime work, liquidated damages in an
amount equal to their unpaid overtime as provided under the
FLSA,

attorneys’

fees

and

costs,

and

pre-

and

post-judgment

interest. (Rec. Doc. 1)
On December 23, 2014, Defendants filed the instant Partial
Motion to Dismiss. (Rec. Doc. 15) After receiving an extension,

2

Plaintiffs opposed the motion on January 20, 2015. (Rec. Docs.
20, 28)
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2).
The complaint must “give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Dura Pharm., Inc.
v. Broudo, 544 U.S. 336, 346 (2005). The allegations “must be
simple, concise, and direct.” FED. R. CIV. P. 8(d)(1).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. A
court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not,
however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.

3

PARTIES’ ARGUMENTS AND DISCUSSION
In their Partial Motion to Dismiss, Defendants argue that
this Court should dismiss the claims of Robinette, Brunet, and
Wall. Defendants argue that Robinette’s claim is time-barred.
They

further

argue

that

the

doctrine

of

judicial

estoppel

precludes the claims of Brunet and Wall. The Court will address
each of these arguments in turn.
A. Whether Robinette’s FLSA Claim Is Time-Barred
Defendants argue that Plaintiff Robinette’s FLSA claim for
unpaid overtime work is time-barred and must be dismissed. (Rec.
Doc. 15-1, pp. 2-5) Plaintiff Robinette alleges that her last
day of work for Defendants was December 27, 2009, and she filed
her

opt-in

consent

form

on

January

30,

2013.

Id.

at

4.

Generally, the FLSA provides a two-year statute of limitations.
Id.

at

3

defendant’s
extends

to

(citing

29

violation
three

U.S.C.
is

§

willful,

years.

Id.

255(a)).
the

However,

statute

(citing

29

of

where

a

limitations

U.S.C.

§

255(a);

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)). An
FLSA claim for unpaid overtime accrues “when the employer fails
to pay the required compensation.” Id. at 4 (citing Halferty v.
Pulse Drug Co., 821 F.2d 261, 270-71 (5th Cir. 1987)). And in an
FLSA collective action, the claim of an opt-in plaintiff is
considered commenced when she files a written consent to become
a

party

plaintiff

with

the

court.

4

Id.

(citing

29

U.S.C.

§

216(b),

256(a);

29

C.F.R.

§

790.21(b)(2);

Lima

v.

Int’l

Catastrophe Solutions, Inc., 493 F. Supp. 2d 793, 803 (E.D. La.
2007)). Thus, even assuming for the purposes of this motion that
the three-year statute of limitations applies, Defendants insist
that any claim for unpaid overtime for work performed before
January 30, 2010, is prescribed. Id. at 5. Because the entire
period

of

Robinette’s

alleged

employment

with

Defendants

occurred before January 30, 2010, Defendants argue that this
Court must dismiss her claim.
Plaintiffs

do

not

oppose

Defendants’

argument

and

agree

that Robinette’s claim against Defendants is time-barred.1 (Rec.
Doc.

28,

pp.

3-4)

Further,

“Robinette

agrees

to

voluntarily

dismiss her cause of action against the Defendants.” Id. at 14.
Having reviewed Defendants’ arguments, the Court finds that
they are meritorious and grants Defendants’ unopposed motion to
dismiss Robinette’s claim for the reasons stated above.
B. Whether Brunet and Wall Are Judicially Estopped from Asserting
FLSA Claims
The

Court

begins

by

describing

Brunet’s

and

Wall’s

bankruptcy petitions, which give rise to Defendants’ judicial
estoppel defense. Brunet opted into Beckworth on January 30,
2013. (Rec. Doc. 15-1, p. 8) On April 12, 2013, Brunet filed for
1

Although Plaintiffs clarify that Robinette’s final pay day was January 8,
2010, making the last day on which she could timely file her opt-in consent
form January 8, 2013, Plaintiffs concede that Robinette’s claim remains timebarred because she did not file her opt-in consent form until January 30,
2013. (Rec. Doc. 28, pp. 3-4)

5

Chapter 13 bankruptcy. Id. Brunet failed to disclose her FLSA
claim

in

confirmed
2013.

Beckworth
Brunet’s

(Rec.

Doc.

to

the

bankruptcy

bankruptcy
28,

p.

9)

plan

on

court.
or

Thereafter,

Id.

about
the

The

court

December

court

16,

dismissed

Brunet’s Chapter 13 bankruptcy on or about June 23, 2014, and
closed the case on October 21, 2014. Id. at 6. The Beckworth
case was dismissed on September 5, 2014. Id. at 1. Brunet then
refiled her bankruptcy petition on October 13, 2014. Id. at 6.
Plaintiffs filed the instant action in this Court on November 3,
2014. Brunet has not disclosed the FLSA claim in her second
bankruptcy action,2 but the court has yet to confirm her plan.
Id. at 28.
Plaintiff Wall filed a Chapter 13 petition for bankruptcy
on May 13, 2011. Id. at 5. The court confirmed her Chapter 13
plan on April 27, 2012. Id. On December 8, 2012, Wall converted
her bankruptcy from Chapter 13 to Chapter 7. (Rec. Doc. 15, Ex.
D, p. 7) She made amended filings on November 7, 2012. Id. She
opted into Beckworth on December 19, 2012. (Rec. Doc. 28, p. 5)
The court discharged her debts on January 22, 2013. Id. at 6.
In light of the above, Defendants argue that Brunet and
Wall are judicially estopped from asserting FLSA claims against
2

Defendants note that Brunet had not disclosed her FLSA claim as of the date
of the filing of their motion. (Rec. Doc. 15-1, p. 9) In their opposition,
Plaintiffs suggest that Brunet has not disclosed the claim: “If amendment is
required to notify the bankruptcy court of this claim, Plaintiff has no
reservations in completing such, and it is not unreasonable for this Court to
permit same.” (Rec. Doc. 28, p. 8)

6

them. (Rec. Doc. 15-1, pp. 5-14) Defendants stress that judicial
estoppel is an affirmative defense that is properly raised in a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6)

if

supported

by

the

facts

pleaded

or

judicially

noticed. Id. at 5. Defendants note that the doctrine of judicial
estoppel “prevents ‘a party from asserting a position in a legal
proceeding that is contrary to a position previously taken in
the same or some earlier proceeding.’” Id. at 6 (quoting Feder
v. Elec. Data Sys. Corp., 429 F.3d 125, 136 (5th Cir. 2005)).
Importantly,

the

doctrine

precludes

a

party

who

fails

to

disclose a legal claim as an asset in a bankruptcy proceeding
from later pursuing that claim. Id. at 6-7.
Defendants assert that the elements of judicial estoppel
are

satisfied

here.

“The

three

requirements

for

applying

judicial estoppel are: (1) the position of the party is plainly
inconsistent

with

the

party’s

prior

legal

position,

(2)

the

party convinced a court to accept the prior position, and (3)
the party did not act inadvertently.” Id. at 7 (citing Jethroe
v. Omnova Solutions, Inc., 412 F.3d 598, 600 (5th Cir. 2005)).
First, Brunet and Wall were required to disclose their FLSA
claim

in

their

bankruptcy

filings

but

failed

to

do

so,

representing to the court that the claim did not exist. Id. at
8. This omission therefore constitutes an inconsistent position
from that taken herein. Id. at 8-9. Second, Brunet and Wall

7

convinced

the

bankruptcy

courts

to

accept

their

previous

position denying that any claim existed. This is evident from
the courts’ adoption of Brunet’s and Wall’s bankruptcy plans,
which omitted any mention of their FLSA claims. Id. at 10-11.
Third, Brunet’s and Wall’s failure to disclose their FLSA claims
was not inadvertent. “In the judicial estoppel context, a party
has inadvertently asserted inconsistent positions when either,
(1) the party lacked knowledge of the inconsistent position, or
(2) the party had no motive for concealment of the inconsistent
position.” Id. at 11 (citing Jethroe, 412 F.3d at 600-01)).
Defendants therefore argue that Brunet’s and Wall’s failure to
disclose their FLSA claims was not inadvertent because they were
aware of the existence of the claims during their bankruptcy
proceedings and they clearly had a motive to conceal the claims
from creditors in the bankruptcy actions. Id. at 13-14. Thus,
Defendants

argue

that

Brunet

and

Wall

should

be

judicially

estopped from pursuing their FLSA claims before this Court, and
this Court should dismiss their claims.
Plaintiffs counter argue that Brunet and Wall should not be
judicially

estopped

from

pursuing

their

FLSA

claims

in

this

Court. (Rec. Doc. 28, pp. 4-15) First, Plaintiffs urge the Court
to

consider

determining

only

the

whether

instant

action—and

Plaintiffs

not

made

prior

any

Beckworth—when
inconsistent

statements. Plaintiffs argue that the Court would “overextend[]

8

the reach” of the doctrine to consider a cause of action that
was

dismissed

inconsistent

in

determining

statements.

dismissed,

it

could

Plaintiffs

further

satisfied.

not

Plaintiff

argue

Id.

whether
at

6-7.

constitute
that

the

Brunet’s

Brunet
Because
an

Wall

that

“asset.”

second

first

and

case

Id.

requirement

bankruptcy

made

at

was
8.

is

not

petition

was

dismissed before being discharged; thus, “any acceptance was,
thereafter,

negated.”

Id.

at

9.

Additionally,

the

bankruptcy

court has not yet issued a confirmation plan with respect to
Plaintiff Brunet’s second bankruptcy petition; thus, that court
has not yet accepted any inconsistent statement to the extent
that Brunet made any. Id. Furthermore, although Plaintiff Wall
received a discharge after she opted into the Beckworth case,
she made all filings in relation to her petition before opting
in. Id. at 9-10. Third, Plaintiffs contend that any inconsistent
statements made by Brunet and Wall were inadvertent and made
without motive to conceal. Id. at 10-12. Plaintiffs urge the
Court

to

“mistake,”

adopt
which

the

ordinary

look

more

meanings

to

the

of

actual

“inadvertence”
subjective

and

intent

rather than the surrounding circumstances. Id. at 12. Plaintiffs
also insist that Defendants failed to show that Brunet and Wall
had a motive to conceal. Id. at 11. Lastly, Plaintiffs argue
that Defendants should not be permitted to avoid suffering the
consequences of their unlawful behavior because of Brunet’s and

9

Wall’s

inadvertent,

mistaken

omission.

Id.

at

15.

Thus,

the

Court should refrain from judicially estopping Brunet and Wall
from asserting their claims against Defendants.
The doctrine of judicial estoppel prevents a party from
assuming
Union

inconsistent

Fire

curiam).

Ins.

The

Co.,

positions

in

535

380,

doctrine's

F.3d

primary

litigation.
385

purpose

(5th
is

Kane

v.

Cir.

2008)(per

“to

Nat'l

protect

the

integrity of the judicial process by preventing parties from
playing fast and loose with the courts to suit the exigencies of
self interest.” Id. (quoting In re Coastal Plains, Inc., 179
F.3d 197, 205 (5th Cir. 1999)). Generally, judicial estoppel is
invoked where “intentional self-contradiction is being used as a
means of obtaining unfair advantage in a forum provided for
suitors seeking justice.” In re Coastal Plains, Inc., 179 F.3d
at 205 (quoting Scarano v. Central R.R. Co., 203 F.2d 510, 513
(3d

Cir.

improper

1953)).
use

of

“Because
judicial

the

rule

machinery,

is

intended

judicial

to

estoppel

prevent
is

an

equitable doctrine invoked by a court at its discretion.” New
Hampshire v. Maine, 532 U.S. 742, 750 (2001) (internal quotation
marks and citations omitted).
The

U.S.

Court

of

Appeals

for

the

Fifth

Circuit

has

recognized three distinct elements which must be satisfied in
order for judicial estoppel to be justifiably applied: “(1) the
party's position must be clearly inconsistent with its previous

10

one;

(2)

the

court

position;

and

(3)

the

Kane,

525

inadvertent.”

must

have

accepted

non-disclosure
F.3d

at

386

the

party's

must

not

(quoting

earlier

have

In

re

been

Coastal

Plains, Inc., 179 F.3d at 205). The Court will examine these
elements as they relate to Brunet and Wall independently.
a. Prior Inconsistent Statement
A debtor in a bankruptcy proceeding must disclose pending
and

potential

substantially

legal
all

claims.

of

a

Under

debtor's

the

existing

Bankruptcy
assets,

Code,

including

pending and potential claims, vest in the bankruptcy estate upon
the

filing

of

a

voluntary

bankruptcy

petition.

Id.

at

385

(citing 11 U.S.C. § 541(a)(1)). In a Chapter 13 bankruptcy, the
bankruptcy estate also encompasses legal claims and causes of
action that accrue “after the commencement of the [bankruptcy]
case but before the case is closed, dismissed, or converted to”
a

Chapter

1306(a)(1)

7,
and

11,
§

or

12

bankruptcy

541(a)(1).

A

proceeding.

debtor

is

11

U.S.C.

§

under

a

therefore

continuing duty to promptly disclose the existence of all such
claims to the bankruptcy court. Kane, 535 F.3d at 384–85 (citing
11 U.S.C. § 521(1); In re Coastal Plains, Inc., 179 F.3d at 207–
08)). This duty continues to apply even after the bankruptcy
court

has

confirmed

a

bankruptcy

plan.

Gilbreath

v.

Averitt

Exp., Inc., No. 09–1922, 2010 WL 4554090, at *7 (W.D. La. Nov.
3, 2010); Wright v. Sears Roebuck & Co., No. 09–1498, 2010 WL

11

6032803, at *3 (W.D. La. Oct. 19, 2010). The Fifth Circuit has
explained that the “importance of this disclosure duty cannot be
overemphasized.” In re Coastal Plains, Inc., 179 F.3d at 208.
Here, it is clear that Brunet and Wall have made prior
inconsistent statements. Brunet opted into Beckworth before she
filed for bankruptcy; it is therefore clear that she knew of the
claim when she filed her bankruptcy petition. Likewise, Wall had
knowledge of her claim, and she had the duty to disclose same to
the bankruptcy court. In this context, a court will find that a
petitioner had knowledge of a claim when she is aware of the
facts giving rise to the claim, even if she is unaware of the
duty to disclose it. See Kamont v. West, 83 Fed. Appx. 1, 3 (5th
Cir. 2003); Lejeune v. Turner Indus. Grp., LLC, No. 11-1238,
2012 WL 1118631, at *4-5 (E.D. La. Apr. 3, 2012)(citing In re
Coastal Plains, Inc., 179 F.3d at 208)(describing the type of
knowledge required to trigger the duty to disclose in bankruptcy
proceedings). Wall certainly had knowledge of the facts giving
rise to her FLSA claim before opting into Beckworth on December
19, 2012. Admittedly, this opt-in occurred after the bankruptcy
court confirmed her Chapter 13 plan. However, she converted her
petition to a Chapter 7 bankruptcy only around two months before
opting in, filed amended schedules little more than one month
before opting in, and the court did not discharge her debts
until more than a month after she opted in; she therefore knew

12

of

the

claim

and

had

a

continuing

duty

to

disclose.

See

Gilbreath, 2010 WL 4554090, at *7 (holding that a Chapter 13
debtor’s duty to disclose extends to claims not accruing until
after

the

bankruptcy

court

confirms

the

debtor’s

bankruptcy

plan, but before discharge); (Rec. Doc. 15, Ex. D, p. 7; Rec.
Doc. 28, pp. 5-6).3
Plaintiffs suggest that their cause of action could not
constitute

an

“asset”

because

Beckworth

was

later

dismissed.

However, Plaintiffs had a duty to disclose the cause of action
nonetheless.

See,

e.g.,

Gilbreath,

2010

WL

4554090,

at

*4

(noting that a debtor has a duty to disclose even potential
causes of action and that such duty continues even after the
court

confirms

the

debtor’s

bankruptcy

plan).

Further,

the

existence of their cause of action as an asset was not limited
to the success or failure of Beckworth; Plaintiffs certainly
seek to take advantage of that here. Both Brunet and Wall failed
to disclose their FLSA claims, of which they were aware, despite
their continuing duty to do so. This omission was “tantamount to
a

representation

that

no

such

claims

existed.”

Id.

Such

a

representation clearly is contrary to the position taken in both
Beckworth and the instant proceedings.

3

Although Gilbreath is concerned with Chapter 13 bankruptcy, debtors in
Chapter 7 bankruptcies similarly incur the duty to disclose. See In re
Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir. 2004).

13

b. Acceptance of Prior Inconsistent Position
Plaintiffs will not be judicially estopped from asserting
their claims herein unless the bankruptcy courts accepted their
previous inconsistent statements. Kane, 535 F.3d at 386. The
“acceptance” element requires “that the first court has adopted
the position urged by the party, either as a preliminary matter
or as part of a final disposition.” In re Superior Crewboats,
374 F.3d at 335 (quoting In re Coastal Plains, 179 F.3d at 206).
This

requirement

is

satisfied

where

a

bankruptcy

court

has

confirmed a debtor's bankruptcy plan in reliance on the veracity
of his asset schedules. Jethroe, 412 F.3d at 600.
The
Brunet’s

Court
and

finds

Wall’s

that
prior

the

bankruptcy

inconsistent

courts

statements.

accepted
In

both

cases, the bankruptcy courts confirmed the bankruptcy plans of
Plaintiffs. This confirmation satisfies the second element of
judicial

estoppel.

acceptance

was

See

id.

“negated”

Although
by

the

Brunet

first

argues

bankruptcy

that

any

court’s

dismissal of her bankruptcy action, a dismissal does not erase
all history.4 See Jethroe, 412 F.3d at 599-600 (holding that

4

The Court is aware of the precedent to which Plaintiffs cite suggesting that
a bankruptcy court’s dismissal of a bankruptcy action negates any acceptance
by the court of the debtor’s or creditors’ positions. However, the Court
finds it to be distinguishable. In In re Operaji, 698 F.3d231 (5th Cir.
2012), the court refused to estop a creditor from asserting a greater debt in
the debtor’s second bankruptcy petition where the first petition had been
dismissed as a result of the debtor’s failure to make required payments.
Although the creditor had filed several amended claims to increase the amount
of debtor’s debt in the first bankruptcy, it did not include the full amount
until after the first petition was dismissed and the parties commenced the

14

plaintiff was judicially estopped from pursuing discrimination
claim

because

she

failed

to

disclose

it

in

a

bankruptcy

proceeding in which the bankruptcy court confirmed her plan but
closed the bankruptcy before discharge when plaintiff failed to
obey an order).
c. Inadvertence
The final element of judicial estoppel requires that the
party's non-disclosure was not inadvertent. In the context of
judicial estoppel, a debtor's failure to satisfy his statutory
duty

of

either

disclosure

lacks

is

knowledge

only
of

“inadvertent”

the

undisclosed

where
claims

“the
or

debtor
has

no

motive for their concealment.” In re Coastal Plains, Inc., 179
F.3d at 210 (emphasis in original).
Here, the Court concludes that Brunet and Wall did not act
inadvertently in failing to disclose their FLSA claims to the
second bankruptcy. Nevertheless, the court refused to estop the creditor from
asserting an increased debt in the second action. First, the court determined
that the creditor had not made inconsistent statements because the creditor
did not share the same duty to disclose as the debtor. Second, in dicta, the
court noted that even if there had been inconsistent statements, the
dismissal of the first petition revoked any acceptance by the court of the
previous inconsistent position. Id. at 237-38. In doing so, the court focused
on the fact that the parties to the bankruptcy were no longer bound by the
terms of the first bankruptcy upon dismissal. Id. at 238. The court stressed
that bankruptcy plans are “exchanged for bargain[s] between the debtor and
the debtor’s creditors[.]” Id. (quoting In re Hufford, 460 B.R. 172, 177
(Bankr. N.D. Ohio 2011)). The court declined to allow the debtor to take
advantage of the first bankruptcy “bargain” when the debtor’s failure to
comply with its terms caused the dismissal. Here, the question is not whether
the terms of an initial bankruptcy plan should bind the same parties in a
second bankruptcy after the first was dismissed. The concerns presented here
are entirely different. See, e.g., id. at 236 (describing the distinction
between applications of judicial estoppel when a debtor with a duty to
disclose fails to disclose a claim and is subsequently estopped from pursuing
it versus when a creditor fails to include the full amount of a debt in an
initial proceeding but asserts the full amount in a subsequent proceeding).

15

bankruptcy court. Brunet had knowledge of the undisclosed claim
when

she

filed

her

bankruptcy

petition

and

throughout

the

pendency of her first and second petitions. Plaintiffs suggest
that

even

after

Defendants

brought

the

issue

of

judicial

estoppel to light, Brunet failed to disclose her claim to the
bankruptcy court. (Rec. Doc. 28, p. 8)
As discussed above, the Court finds that Wall knew of her
claim

while

her

duty

to

disclose

was

ongoing.

A

debtor

has

knowledge for the purposes of this analysis if she knew of the
facts giving rise to her claim whether or not she knew of the
duty to disclose. See Jethroe, 412 F.3d at 601 (“[T]o claim that
[the] failure to disclose was inadvertent [a debtor] must show
not that she was unaware that she had a duty to disclose her
claims but that, at the time she filed her bankruptcy petition,
she was unaware of the facts giving rise to them.”); Kamont, 83
Fed.

Appx.

that

were

plaintiff

at

3

(estopping

plaintiff’s

filed

while

bankruptcy

failed

to

her

disclose

by

discrimination
was

amending

pending
her

claims

but

that

bankruptcy

petition). Wall knew of the facts giving rise to her claim—her
unpaid overtime work for Defendants—before opting into Beckworth
and before the court discharged her debts in bankruptcy. She
would not have opted in if she had not worked unpaid overtime
and been aware of that fact. Although some courts have refused
to judicially estop a plaintiff from asserting a claim that

16

accrues

following

the

bankruptcy

court’s

confirmation

of

the

debtor’s Chapter 13 plan but prior to discharge, this Court
declines to do so here. See Gilbreath, 2010 WL 4554090, at *8-9.
As previously stated, Wall knew of the facts giving rise to her
claim before opting in, which she undertook before the court
discharged her debt in any case.5
Second, Brunet and Wall had the requisite motive to conceal
the

claim

because

substantially

their

alleviated

repayment

if

the

obligations

bankruptcy

court

could
and

be

their

creditors were kept unaware of a potentially valuable asset. See
Jethroe,

412

F.3d

at

601

(plaintiff-debtor

had

a

motive

to

conceal the existence of a potential claim where her repayment
obligations were reduced on account of nondisclosure); see also
De Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1292 (11th Cir.
2003)(inferring motive to conceal because debtor “certainly knew
about his claim and ... because his amount of repayment would be
less”); Ryan Operations G.P. v. Santiam–Midwest Lumber Co., 81
F.3d 355, 363 (3d Cir. 1996)(“This combination of knowledge of
the

claim

and

motive

for

concealment

5

in

the

face

of

an

Furthermore, even if the Court did not judicially estop Wall from pursuing
this claim, the Court wonders whether Wall is the real party in interest
given that her debts were discharged pursuant to a Chapter 7 bankruptcy. See
Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 387 (5th Cir. 2008). “In a
Chapter 7 case, ‘[a]t the close of the bankruptcy case, property of the
estate that is not abandoned under § 554 and that is not administered in the
bankruptcy proceedings’—including property that was never scheduled—‘remains
the property of the estate.’” Id. at 385 (quoting Parker v. Wendy’s Int’l,
Inc., 365 F.3d 1268, 1272 (11th Cir. 2004)). Thus, unless Wall’s trustee
abandoned the claim, the trustee is the party in interest. Id. at 386-87.

17

affirmative duty to disclose gave rise to an inference of intent
sufficient to satisfy the requirements of judicial estoppel.”).
Plaintiffs

argue

that

this

Court

should

adopt

a

different

meaning of the words “inadvertence” or “mistake”; however, such
is not the law in the Fifth Circuit. See In re Coastal Plains,
Inc., 179 F.3d at 210. Brunet and Wall therefore are estopped
from asserting their previously undisclosed FLSA claims.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Partial Motion to
Dismiss (Rec. Doc. 15) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Leave to
File Reply (Rec. Doc. 29) is DENIED as moot.
New Orleans, Louisiana this 5th day of February, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

18