Biagoiotti et al v. Home Depot USA, Inc.

Filing 127

DECISION and ORDER granting 105 Motion for Summary Judgment. Defendant's motion for summary judgment is GRANTED, and all claims by Theodore Biagiotti in this action are DISMISSED. Signed by Senior Judge Thomas J. McAvoy on 12/16/2013. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
ARTHUR R. AMASH, et al.,
Plaintiffs,
v.

1:12-cv-837

HOME DEPOT U.S.A., INC.,
Defendant.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
Plaintiffs commenced this action asserting claims for unpaid overtime under the

Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq., and New York Labor Law,
Article 19, §§ 650 et seq. See 2nd Am. Compl., dkt. # 43. Defendant Home Depot U.S.A.,
Inc. (“Home Depot” or “Defendant”) moves for summary judgment dismissing the claims
brought by Plaintiff Theodore Biagiotti (“Biagiotti” or “Plaintiff”) on the grounds that judicial
estoppel precludes Plaintiff’s pursuit of his claims because he failed to disclose the claims
in his voluntary petition for bankruptcy filed with the United States Bankruptcy Court of the
Southern District of New York. See Motion, dkt. # 105. Biagiotti opposes the motion, and
Home Depot has filed a reply. The Court has considered each of these filing in rendering
its decision. For the reasons that follow, the motion is granted.

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II.

BACKGROUND1
a. Relevant Procedural History
Biagiotti is a former assistant store manager for Home Depot. On December 11,

2006, Biagiotti filed a consent to join a FLSA conditional certified collective action entitled
Aquilino v. The Home Depot, Inc., Civil Action No. 04-cv-4100, filed against Home Depot
in the United States District Court for the District of New Jersey on August 25, 2004
("Aquilino action"). See 2nd Am. Compl. at ¶ 1; Compl., (ECF No.1 in D. NJ. 04-cv-41 00).
The Aquilino plaintiffs, including Biagiotti, alleged that they were misclassified as exempt
from the overtime requirements of the FLSA, and the laws of 25 other states ("ASM Wage
and Hour Claims"). Id.
On February 15, 2011, the District of New Jersey granted Home Depot's motion to
decertify the nationwide FLSA collective action. Aquilino, 2011 WL 564039, at * 11, (ECF
Nos. 341 and 347 in D.N.J. 04-cv-4100). After decertification of the collective action, by
Order dated May 2, 2011, the District of New Jersey dismissed the opt-in plaintiffs without
prejudice. Aquilino, 2011 WL 564039, at *1, (ECF No. 353 in D.N.J. 04-cv-4100); see
Aquilino v. Home Depot U.S.A., Inc., No. 06-cv-4100 (PGS) (D.N.J. May 2, 2011) (ECF
No. 353 in D.N.J. 04-cv-41 00).

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Because Plaintiff did not submit a responsive Local Rule 7.1(a)(3) Statement, the properly supported
facts set forth in Defendant’s Local Rule 7.1(a)(3) Statement of Material Facts are deemed admitted.
It should also be noted that Plaintiff’s counsel’s unsigned Memorandum of Law is in violation of Fed.
R. Civ. P. 11(a) ("Every pleading, written motion, and other paper must be signed by at least one attorney of
record in the attorney's name .... "); General Order #22, Administrative Procedures for Electromc Case Filing,
§6.1 ("A pleading or other document requiring an attorney's signature shall be signed in the following manner:
... s/(attorney name)."); N.D.N.Y.L.R. 10.1(c)(2) (All documents presented for filing "must" include the
attorney's signature, bar roll number, and contact information). Due to the outcome of this motion, the Court
declines Defendant’s request to strike the Memorandum.

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In June 2011, some of the former Aquilino opt-in plaintiffs filed six multi-state
actions, alleging violation of the FLSA and various state laws. See Costello v. Home Depot
U.S.A., Inc., 888 F. Supp. 2d 258, 262 (D. Conn. 2012). On June 14, 2011, the plaintiffs
in the instant action, including Biagiotti, were among the plaintiffs who filed a FLSA and
multi-state law wage/hour action in the United States District Court for the District of
Connecticut, alleging violations of the FLSA and the wage and hour laws of New
Hampshire, New York, and Vermont ("Costello action"). Costello v. Home Depot U.S.A.,
Inc., Civil Action. No. 11-cv-953 (ECF No.1 in D. Conn. 11-cv-0953). None of the
multi-state actions included FLSA collective action or Rule 23 class action allegations.
On January 10, 2012, Home Depot filed a motion in the Costello action, pursuant to
Fed. R. Civ. P. 21 and 28 U.S.C. §1404(a), to sever the plaintiffs' claims into seven
separate actions and to transfer six of those actions to districts in other states, including
New York. Costello, 888 F. Supp. 2d at 261 (ECF No. 55 in D. Conn. 11-cv-0953). On
April 10, 2012, the Costello Court granted Home Depot's motion. Id. at 271 (ECF No. 72 in
D. Conn. 11-cv-0953).
By its Orders of April 30, 2012 and May 2, 2012, the claims of plaintiff Arthur R.
Amash, Theodore Biagoiotti, Sheryl Glickman, Christine M. Holloway, Shaun H. Kimball,
Joseph L. Pangione, Jeffrey A. Repp, Charles R. Schneider, Richard A. Yingling, Jr.,
Robert F. Yuskauskas and John L. Marine were transferred to the Northern District of New
York. See Order of Transfer, filed April 30, 2012, (ECF No. 77 in D. Conn. 11-cv-0953),
and Amended Order of Transfer, filed May 2, 2012 (ECF No. 79 in D. Conn. 11-cv-0953).
The instant action was electronically transferred to this Court on May 21, 2012. See May
21, 2012 Docket Entry (ECF No. 81 in N.D.N.Y. 12-cv-0837).
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b. Biagiotti’s Bankruptcy Proceeding
On December 15, 2011, after he had joined the Aquilino action and its successor
action Costello v. Home Depot U.S.A., Inc., Civil Action. No. 11I-cv-953 (D. Conn.
11-cv-0953) ("Costello action") as an opt-in plaintiff, Biagiotti and his spouse, with the
assistance of legal counsel, filed a voluntary bankruptcy petition and reorganization plan
under Chapter 13 with the United States Bankruptcy Court for the Southern District of New
York, Case No. 11-38439-cgm ("Chapter 13 Plan"). The Chapter 13 Plan included
Schedules that required Plaintiff to identify, among other things, "[o]ther contingent and
unliquidated claims of every nature .... " Plaintiff did not identify any such claims; instead
he placed an "X" in the column labeled "None." On Schedule C, Plaintiff identified
$66,751.41 in claimed exemptions. On Schedule F, he identified $16,269.00 in unsecured
nonpriority claims.
Question 4.a of the Statement of Financial Affairs filed with Biagiotti's Chapter 13
Plan states:
4. Suits and administrative proceedings, executions, garnishments and
attachments.
a.

List all suits and administrative proceedings to which the debtor is or was a
party within one year immediately preceding the filing of this bankruptcy case
....

Plaintiff checked the box marked: "None" in response to Question 4.a of the Statement of
Financial Affairs.2

2

He did so under penalty of perjury as the bankruptcy form provided:

I declare under penalty of perjury that I have read the answers contained in
the foregoing statement of financial affairs and any attachments thereto and
(continued...)

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The bankruptcy petition also included the following notice, as required by section
342(b) of the Bankruptcy Code ("Section 342 Notice"):
A person who knowingly and fraudulendy conceals assets or makes a false oath or
statement under penalty of perjury, either orally or in writing, in connection with a
bankruptcy case is subject to a fine, imprisonment, or both. All infomation supplied
by a debtor in connection with a bankruptcy case is subject to examination by the
Attorney General acting through the Office of the United States Trustee, the Office
of the United States Attorney, and other components and employees of the
Department of Justice.
WARNING: Section 521(a)(l) of the Bankruptcy Code requires that you prompdy file
detailed infonnation regarding your creditors, assets, liabilities, income, expenses
and general financial condition ....
Biagiotti confirmed that he received and read the Section 342 Notice.
On January 18, 2012, Plaintiff filed an Amended Chapter 13 Plan to correct
Schedule J and remove loss mitigation. Plaintiff did not disclose in the Amended Plan or
corrected Schedule J his participation in this litigation or its predecessors (i.e. Aquilino and
Costello), or his claims against Home Depot.
On July 30, 2012, Plaintiff filed a motion to void a second mortgage lien on his
primary residence in the amount of $55,520.04. Plaintiff did not disclose in this motion his
participation in this litigation or its predecessors (i.e. Aquilino and Costello), or his claims
against Home Depot. On October 3, 2012, the Bankruptcy Court granted the unopposed
motion and entered an order voiding the mortgage lien, reclassifying it as unsecured.
On January 29, 2013, Plaintiff filed a Second Amended Chapter 13 Plan for the
stated purpose of correcting his mortgage arrears. Again, Plaintiff did not disclose his
participation in this litigation or its predecessors (i.e. Aquilino and Costello), or his claims

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(...continued)

that the are true and correct.
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against Home Depot. On March 28, 2013, the Bankruptcy Court confirmed Plaintiff's
Second Amended Chapter 13 Plan.
III.

DISCUSSION
a. Judicial Estoppel
Defendant argues that judicial estoppel prevents Biagiotti from verifying to the

Bankruptcy Court that he has no assets or potential assets in an effort to obtain a
discharge of his debts, and then assert in this Court that he is entitled to compensatory
damages for conduct that occurred before the filing of his bankruptcy case. Simply stated,
the doctrine of judicial estoppel prevents a party from asserting a factual position in one
legal proceeding that is contrary to a position that it successfully advanced in another
proceeding. Rodal v. Anesthesia Group of Onandaga. P.C ., 369 F.3d 113, 118 (2 Cir.
2004). To invoke judicial estoppel, '’'(1) the party against whom it is asserted must have
advanced an inconsistent position in a prior proceeding, and (2) the inconsistent position
must have been adopted by the court in some manner.’" Ibok v. SIAC-Sector Inc., 2011
WL 293757, at *5 (S.D.N.Y. Feb. 2, 2011)(quoting Peralta v. Vasquez, 467 F.3d 98, 105
(2d Cir. 2006) (citations omitted) cert. denied, 551 U.S. 1145, 127 S. Ct. 3006, 168 L.
Ed.2d 726 (2007)).
The doctrine of judicial estoppel requires that there be “a true inconsistency
between the statements in the two proceedings.” Simon v. Safelite Glass Corp.,
128 F.3d 68, 72–73 (2d Cir.1997). “If the statements can be reconciled there is no
occasion to apply an estoppel.” Id. at 73 (citations omitted). Moreover, judicial
estoppel should be limited “to situations where the risk of inconsistent results with
its impact on judicial integrity is certain.” Id. at 72 (citation omitted); accord
[Uzdavines v. Weeks Marine, Inc., 418 F.3d 138, 148 (2d Cir. 2005)].
Because the inquiry is inherently case-specific, “[t]he circumstances under which
the doctrine could be applied are far from clear.” Young v. U.S. Dep't of Justice,
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882 F.2d 633, 639 (2d Cir.1989), cert. denied, 493 U.S. 1072, 110 S .Ct. 1116, 107
L.Ed.2d 1023 (1990). Nevertheless, many courts in this circuit have applied judicial
estoppel in the bankruptcy context to dismiss undisclosed claims. See, e.g.,
[Coffaro v. Crespo, 721 F. Supp.2d 141, 145 (E.D.N.Y. 2010)] (“In the bankruptcy
context, judicial estoppel is commonly invoked in order ‘to prevent a party who
failed to disclose a claim in bankruptcy proceedings from asserting that claim after
emerging from bankruptcy.’”) (quoting Negron v. Weiss, 2006 WL 2792769, at *3
(E.D.N.Y. Sept. 27, 2006)); [Kunica v. St. Jean Fin. Inc., 233 B.R. 46, 58 (S.D.N.Y.
1999)](collecting cases); [Rosenshein v. Kleban, 918 F. Supp. 98, 104 (S.D.N.Y.
1996)](same).
Id. at *5-*6.
Here, Biagoiotti advanced in the Bankruptcy Court that he had no claims or lawsuits
when, in fact, he had the claims that are the subject of the instant litigation. Moreover, the
Bankruptcy Court, in reliance on Biagoitti’s factual statements of assets (which omitted his
current claims) entered an order voiding Biagoitti’s mortgage lien, reclassified the
mortgage lien as unsecured, and confirmed Plaintiff's Second Amended Chapter 13 Plan.
Thus, Biagoitti “advanced an inconsistent position” in the bankruptcy proceeding (i.e. that
had no outstanding claims or lawsuits against another party), and this “inconsistent
position [was] adopted by the [Bankruptcy Court] in some manner.” Peralta, 467 F.3d at
105; see Rosenshein, 918 F. Supp. at 104–05 (“bankruptcy court approved [plaintiffs']
plans of reorganization and discharged their debts on the basis of their incomplete
disclosure of assets, thereby adopting their position”).
Biagoitti’s purported belief that he "had no idea the Home Depot case was real,"
and that he "thought the whole thing was all a scam," are belied by his consent to join the
Aquilino action3 and by the several telephone calls he received from attorneys’ offices that

3

Paragraph 9 of his Notice of Consent to Join provided Biagiotti with the option to retain his own
counselor or be represented by the attorneys for the plaintiffs in the Aquilino Action ("Aquilino Plaintiffs'
(continued...)

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discussed his claims with him. See Biagiotti Aff. ¶¶ 3-4, 7. Moreover, there is insufficient
support for the inference that Plaintiff’s failure to disclose this litigation or its predecessors
(i.e., Aquilino and Costello) in any of his bankruptcy filings was the result of good faith
mistake or unintentional error. The courts that have addressed this issue have concluded
that the “failure to disclose assets will only be deemed inadvertent or due to mistake when
either the debtor has no knowledge of the claims or no motive to conceal the claims.” Ibok
v. SIAC-Sector Inc., 2011 WL 293757, at *7 (citations omitted, citing cases). As indicated
above, the facts indicate that Plaintiff had knowledge of the claims. In addition, the
reasonable inference may be drawn that Plaintiff had a motive to conceal the claims from
the instant and predecessor litigations, that is, he concealed this “asset” in order to have
his bankruptcy reorganization plan approved and to obtain re-classification of his debt.
See id. at *8 (“With respect to his motive to conceal the claim, Ibok had such a motive.
Had the trustee known about the claim, she might have attempted to sell the claim or to
have extracted a settlement from the defendants in this case for the benefits of Ibok's
creditors.”).
Moreover, there is insufficient basis upon which to allow Plaintiff to amend his
bankruptcy petition to declare his claims in the instant case.
[A]lthough the Second Circuit has not directly addressed this issue, many other

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(...continued)
Counsel"). With the placement of an ''x,'' Biagiotti chose to be represented by the Aquilino Plaintiffs' Counsel.
The Notice of Collective Action Lawsuit ("Collective Action Notice'') that accompanied the Consent to Join
Form, identified those attorneys and provided their contact information. The Collective Action Notice
explained that the Aquilino Plaintiffs' Counsel would not contact Biagiotti unless he initiated contact or had
"completed the ... Notice of Consent to Join Form, agreeing to join the lawsuit, and submitted it to the claims
Administrator" in Florida. The Claims Administrator received Biagiotti's Consent to Join on December 19,
2006, and it was submitted to the Clerk of the United States District Court for the District of New Jersey on
December 21,2006.

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circuit courts have held that judicial estoppel bars a plaintiff from moving to reopen
bankruptcy proceedings to include a cause of action as an asset of the estate. See,
e.g., Reed v. City of Arlington, 620 F.3d 477 (5th Cir. 2010) (plaintiff's failure to
disclose cause of action during Chapter 7 bankruptcy judicially estopped trustee in
bankruptcy from pursuing it) (reversing “1 million-plus judgment” in favor of
plaintiff-debtor on undisclosed claim); White v. Wyndham Vacation Ownership, Inc.,
617 F.3d 472, 479–84 (6th Cir. 2010) (affirming grant of summary judgment
dismissing plaintiff's undisclosed sexual harassment claim); Robinson v. Tyson
Foods, 595 F.3d 1269, 1276 (11th Cir. 2010) (summary judgment granted on
judicial estoppel grounds in employment discrimination action; plaintiff had “motive
to conceal her claims in order to keep any settlement proceeds” which made “a
mockery of the judicial system”); Krystal Cadillac–Oldsmobile GMC Truck, Inc. v.
Gen. Motors Corp., 337 F.3d 314, 325 (3d Cir. 2003) (“Applying a lesser sanction
[than judicial estoppel] ... would reward [plaintiff] for what appears to be duplicitous
conduct in the course of its bankruptcy proceeding. [Plaintiff] would still reap the
benefit of any recovery.... In addition, the integrity of both the bankruptcy process
and the judicial process would suffer.”), cert. denied, 541 U.S. 1043, 124 S. Ct.
2172, 158 L.Ed.2d 732 (2004); Payless Wholesale Distribs., Inc. v. Alberto Culver,
Inc., 989 F.2d 570, 571–72 (1st Cir.) (“In order to preserve the requisite reliability of
disclosure statements and to provide assurances to creditors regarding the finality
of plans which they have voted to approve ... [plaintiff's] failure to announce [its]
claim against a creditor precludes it from litigating the cause of action at this time.”)
(quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 418 (3d
Cir.1988)), cert. denied, 510 U.S. 931, 114 S. Ct. 344, 126 L. Ed.2d 309 (1993).
“The rationale for these decisions is that the integrity of the bankruptcy system
depends on full and honest disclosure by debtors of all of their assets.”
Rosenshein, 918 F. Supp. at 104; see also Payless, 989 F.2d at 571 (Plaintiff
“having obtained judicial relief on the representation that no claims existed, can not
now resurrect them and obtain relief on the opposite basis.... Indeed, defendants
may have a windfall. However, it is an unacceptable abuse of judicial
proceedings.”). It would violate the “integrity” of the bankruptcy system to “permit a
debtor to obtain relief from the bankruptcy court by representing that no claims exist
and then subsequently” assert “those claims for his own benefit in a separate
proceeding.” Rosenshein, 918 F. Supp. at 104.
Id., at *5-*6.
In light of the fact that the Bankruptcy Court has already re-classified certain of
Plaintiff’s assets and confirmed his Second Amended Chapter 13 Plan, it would violate the
integrity of the bankruptcy system and, therefore, would be contrary to the doctrine of
judicial estoppel. See Ibok v. SIAC-Sector Inc., 2011 WL 979307, at *3 (S.D.N.Y. March
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14, 2011)(“[A]llowing Plaintiff to pursue this lawsuit absent full and honest disclosure of his
assets would violate the integrity of the bankruptcy system. Thus, consistent with the
doctrine of judicial estoppel, Plaintiff cannot be permitted to assert standing in the instant
lawsuit now or in the future.”)(citing DeRosa v. Nat'l Envelope Corp., 595 F.3d 99, 103 (2d
Cir. 2010))
IV.

CONCLUSION
For the reasons discussed above, the doctrine of judicial estoppel bars Plaintiff

from asserting his claims in this Court. Accordingly, Defendant’s motion for summary
judgment [dkt. # 105] is GRANTED, and all claims by Theodore Biagiotti in this action are
DISMISSED.
IT IS SO ORDERED.
Dated: December 16, 2013

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