RDS Real Estate, LLC v. Abrams Group Construction, LLC et al
ORDER denying 119 Motion for Summary Judgment Signed by Chief District Judge Louis Guirola, Jr on 09/15/2016 (Guirola, Louis)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
RDS REAL ESTATE, LLC
CAUSE NO. 1:15CV361-LG-RHW
ABRAMS GROUP CONSTRUCTION, LLC,
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
BASED ON JUDICIAL ESTOPPEL
BEFORE THE COURT is the  Motion for Summary Judgment filed by
Defendant Abrams Group Construction, LLC, invoking the doctrine of judicial
estoppel. Having considered the submissions of the parties and the relevant law,
the Court is of the opinion that the Motion should be denied because the elements of
judicial estoppel are not present in this case. Moreover, even if they were, the
Court would decline to exercise its discretion to apply the doctrine.
According to the  Amended Complaint, in 2009, Plaintiff RDS Real
Estate contracted with another entity, S&S Construction, LLC, “to construct a
building in Ocean Springs, Jackson County, Mississippi, that would be used for
medical office space . . . .” (Id. at 4 (¶26)). RDS alleges that soon after it “accepted
occupancy of the building,” it began experiencing problems, including roof leaks, as
a result of unworkmanlike construction. (See id. at 5 (¶¶ 35-36)).
RDS claims that “[i]n the time frame around December 2010 through April
2011, S&S Construction, LLC sold all its assets to Abrams Group Construction,
LLC.” (Id. at 6 (¶42)). It also states that in July 2011, “Abrams Group
Construction, LLC or S&S Construction, LLC changed the name of S&S
Construction, LLC to Abrams Group Construction, LLC with the Mississippi Board
of Contractors[,]” although RDS did not have knowledge that S&S “had ceased
doing business or that it had changed its name.” (See id. at 6-7 (¶¶ 48, 56)).
RDS contends that it eventually incurred approximately $214,000.00 in costs
“to correct the construction defects caused by S&S.” (See id. at 8-9 (¶¶ 64-70)). It
then filed a lawsuit in this district against S&S and Abrams, styled 1:14-cv-187HSO-RHW. (See id. at 9 (¶72)). “Because there was an arbitration provision in the
Construction Agreement between RDS and S&S, RDS consented to arbitration, and
filed a demand to initiate arbitration with the AAA. Abrams [who had opposed
arbitration] was dismissed without prejudice.” (See id. (¶¶ 73-75)). The arbitration
resulted in “an award in favor of RDS in the amount of $240,898.14[,]” which the
district court affirmed and on which its entered a final judgment. (See id. at 910 (¶¶ 82-86)). RDS alleges that “[t]he judgment has not been paid[, and that] S&S
has made representations that is has no money to pay the . . . judgment.” (See id. at
10 (¶¶ 86-87)).
As a result, RDS instituted this action against multiple entities and
individuals, including Abrams.1 “RDS requests a declaratory judgment that the
judgment RDS obtained against S&S also applies to Abrams, as they are the same
entity. In other words, RDS requests a declaratory judgment that both S&S and
RDS seeks to pierce the corporate veil of S&S, but those allegations are not
made against Abrams.
Abrams are jointly and severally liable for the full amount of damages.” (See id. at
11 (¶100); see also id. at 13 (¶120)). It also requests an award of expenses and
attorney’s fees, and asserts that “Abrams should be liable to RDS for the judgment
under theories of estoppel, merger and other successor liability theories.” (See id. at
12 (¶¶ 102-03); see also id. at 13 (¶120), 17 (¶157)).
Abrams has filed a Motion for Summary Judgment, arguing that “judicial
estoppel prevents [RDS] from asserting the position its asserts in this case after
asserting the opposite position in the 2014 case.” (Abrams Mem. 5 (¶22), ECF No.
120)). Abrams contends that if RDS “believed Abrams and [S&S] were the same
entity, it could have argued against Abrams [sic] Opposition to the Motion to
Compel Arbitration and advanced the argument that Abrams and [S&S] were the
same entity and that, therefore, Abrams was bound by the arbitration agreement.”
(Id. at 7 (¶35)). However, it claims that, instead, RDS “chose to treat Abrams and
[S&S] as separate entities” and moved to dismiss Abrams from the 2014 “case so
that it could proceed to arbitration with” S&S. (See id. at 7-8 (¶35)).
“The doctrine of judicial estoppel prevents ‘litigants from asserting
contradictory positions for tactical gain.’” Trinity Marine Prods., Inc. v. United
States, 812 F.3d 481, 490 (5th Cir. 2016) (citation omitted). “The purpose of [the
doctrine] is to protect the integrity of the judicial process by preventing parties from
playing fast and loose with the courts.” In re Tex. Wyo. Drilling, Inc., 647 F.3d 547,
552 (5th Cir. 2011) (citation and quotation marks omitted).
“Judicial estoppel applies only if ‘the following elements are present: (1) the
party against whom judicial estoppel is sought has asserted a legal position which
is plainly inconsistent with a prior position; (2) a court accepted the prior position;
and (3) the party did not act inadvertently.’” Trinity Marine, 812 F.2d at 490
(citation omitted). “The burden to prove judicial estoppel is on the party invoking
the doctrine.” Thompson v. Sanderson Farms, Inc., No. 3:04cv837-WHB-JCS, 2006
WL 7089989, at *2 (S.D. Miss. May 31, 2006) (citing Smith v. United States, 328
F.3d 760, 765 (5th Cir. 2003)).
The decision whether to invoke the doctrine of judicial estoppel is within the
Court’s discretion, see In re Tex. Wyo. Drilling, 647 F.3d at 550, and “trial courts are
not required to apply it in every instance that they determine its elements have
been met.” See U.S. ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 271 (5th
Cir. 2015). “The presence of one or more of these elements [for judicial estoppel to
apply] does not mandate the invocation of [the doctrine]. Rather, courts should
determine if applying judicial estoppel is appropriate in light of the specific facts of
each case and the doctrine’s purpose of protecting the integrity of the judicial
process.” See GSDMIdea City, 798 F.3d at 272 (citation, quotation marks, and
A review of RDS’s Complaint in the 2014 action indicates that it is not taking
inconsistent positions. Among other things, in the 2014 action, RDS alleged that
“both S&S and Abrams are jointly and severally responsible for the construction
defect in RDS’s office building and the subsequent costs incurred by RDS to correct
said construction defects.” (See 2014 Compl., ECF No. 1 in 1:14cv187-HSO-RHW, at
5 (¶34)).2 In addition, RDS not only has asserted that Abrams and S&S are the
same entity, but also has raised alternative arguments for liability based on
successor liability, merger, and other theories, which is consistent with its
assertions in the 2014 action. (See id. at 5-6 (¶¶ 42-43, 50)). In short, it appears
that RDS’s position has always been that S&S and Abrams are responsible for its
damages. (See id. (¶¶ 35, 45, 52-53)). RDS’s decision to pursue S&S only in the
previous action and to dismiss Abrams without prejudice in response to Abrams’
argument that it was not a signatory to the arbitration agreement at issue does not
preclude it from making the claims it makes here and does not equate to asserting a
legal position which is plainly inconsistent with a prior position. See, e.g., In re Tex.
Wyo. Drilling, 647 F.2d at 552-53 (“The defendant’s argument founders on the first
requirement because [plaintiff] did not take clearly inconsistent positions.”)
(affirming district court decision not to apply the doctrine).
Furthermore, the district court did not “accept” any purported position taken
by RDS in 2014 with respect to whether or not S&S and Abrams are the same
entity. The relationship between S&S and Abrams was never litigated, as RDS
voluntarily elected to dismiss Abrams without prejudice. The fact that the district
court granted the dismissal does not persuade this Court that that court accepted
any position regarding whether S&S and Abrams are the same entity. See, e.g.,
Abrams also submitted a copy of the prior Complaint with its Motion.
Prideaux v. Tyson Foods, Inc., 387 F. App’x 474, 478 (5th Cir. 2010) (district court
did not abuse its discretion in finding judicial estoppel unwarranted where “there
was no ‘judicial acceptance’”).
While the Court is of the opinion that at least two judicial estoppel elements
are present here, the Court nonetheless would decline to exercise its discretion to
apply the doctrine in this case. See GSDMIdea City, 798 F.3d at 271-72; see also,
e.g., Reed v. City of Arlington, 650 F.3d 571, 576 (5th Cir. 2011) (“Because judicial
estoppel is an equitable doctrine, courts may apply it flexibly to achieve substantial
justice.”). Specifically, the Court does not find that RDS was engaged in the type of
“fast and loose” conduct that the doctrine of judicial estoppel was designed to
Finally, the Court finds Abrams’ other arguments unpersuasive. Abrams
states that it was prevented from asserting defenses by not participating in the
arbitration, which it opposed in the first place. In this respect, Abrams, not RDS, is
taking an inconsistent position. It opposed arbitration, but now argues that it was
somehow prejudiced by not being able to participate in that arbitration. This is not
a ground for applying judicial estoppel.
Abrams also states that RDS is “seek[ing] to avoid having to prove successor
liability by asking this Court to declare that the judgment it obtained against [S&S]
is a judgment against Abrams in spite of the fact that [RDS] has not been required
to present evidence to prove the elements necessary for successor liability.”
(Abrams Mem. 13 (¶58), ECF No. 120). But the Court will not enter a judgment in
RDS’s favor unless and until RDS has met its burden of proof to establish facts
showing that Abrams should be held liable for the judgment obtained against S&S.
Similarly, although Abrams contends that it “will be held responsible for a final
judgment on which it was prevented from presenting any defense or evidence[,]” (see
id. at 14-15 (¶61)), that is simply not the case. The Court’s ruling that judicial
estoppel does not apply does not prevent Abrams from raising any defense or
presenting any evidence it may have to show that it should not be held liable for the
judgment obtained against S&S. Indeed, the Court offers no opinion at this
juncture as to whether RDS will ultimately succeed in its allegations.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons
discussed herein, the  Motion for Summary Judgment filed by Defendant
Abrams Group Construction is DENIED.
SO ORDERED AND ADJUDGED this the 15th day of September, 2016.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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