Biagoiotti et al v. Home Depot USA, Inc.
Filing
128
DECISION AND ORDER granting 107 Motion for Summary Judgment. Defendant's motion for summary judgment is GRANTED, and all claims by Robert Yuskauskas 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 Robert Yuskauskas (“Yuskauskas” 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 Northern District of New York. See Motion, dkt. # 107. Yuskauskas has not
responded to the motion and his time to do so has expired. For the reasons that follow,
the motion is granted.
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II.
BACKGROUND1
a. Relevant Procedural History
Yuskauskas is a former assistant store manager for Home Depot. On December
21, 2006, Yuskauskas joined 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 Yuskauskas, 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).
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 Yuskauskas, were among the plaintiffs who filed a FLSA
1
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.
2
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).
b. Yuskauskas’ Bankruptcy Proceeding
On August 7, 2002, while Plaintiff was employed by Home Depot, he and his
spouse, with the assistance of counsel, filed a voluntary Chapter 13 petition and plan for
bankruptcy in the United States Bankruptcy Court for the Northern District of New York.
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The Chapter 13 Plan included schedules that required Plaintiff to disclose “[o]ther
contingent and unliquidated claims of every nature….” Plaintiff did not disclose any such
claims, instead placing an “X” in the column labeled: “None.” On Schedule E, Plaintiff
identified $17,978.20 in unsecured priority claims. On Schedule F, Plaintiff identified
$17,877.08 in unsecured nonpriority claims.
Question 4.a of the Statement of Financial Affairs filed with Yuskauskas’ 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
On January 13, 2003, the Bankruptcy Court confirmed Plaintiff’s Chapter 13 Plan.
By their Plan, Plaintiff and his spouse sought to reclassify their second mortgage from
secured to wholly unsecured and to cramdown an automobile loan to reduce the interest
rate and treat $6,036.96 of the loan as unsecured debt. The Plan provided for monthly
payments for 60 months so as to pay general unsecured creditors 40% of their allowed
claims.
On December 21, 2006, while Plaintiff’s bankruptcy proceeding was pending, he
2
The bankruptcy petition included a notice regarding Yuskauskas' legal obligation to truthfully disclose
his assets to the bankruptcy court:
Penalty for making a false statement or concealing property. Fine of up to $500,000 or imprisonment
for up to 5 years or both. 18 U.S.C. §§ 152 and 3571.
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signed a Notice of Consent to Join the Aquilino action. Four months later, in April 2007,
the Internal Revenue Service forwarded to the Bankruptcy Trustee Plaintiff’s tax refund for
the year 2006 in the sum of $1,516.00, and the Trustee filed a motion in the bankruptcy
proceeding to modify Plaintiff’s confirmed Chapter 13 Plan to increase its base to include
the tax refund. The motion did not disclose Plaintiff’s claim in the Aquilino action or
otherwise disclose his claim against Home Depot. On June 12, 2007, the bankruptcy
court approved the requested modification, which was not opposed.
On December 22, 2007, a year after joining Aquilino as an opt-in plaintiff,
Yuskauskas filed a motion in the bankruptcy proceeding to modify his confirmed Plan and
for an order deeming it complete pursuant to 11 U.S.C. §1329. In this motion, Plaintiff did
not disclose his participation in Aquilino or his claims against Home Depot. On February
14, 2008, the Bankruptcy Court approved the requested modification.
On July 8, 2008, the bankruptcy court discharged Yuskauskas of his debts. On
October 10, 2008, the bankruptcy court entered its final decree, declared the bankruptcy
estate of the Yuskauskas fully administered, discharged the Trustee, and closed the
bankruptcy proceeding.
III.
DISCUSSION
a. Judicial Estoppel
Defendant argues that judicial estoppel prevents Yuskauskas 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 claims that existed while his bankruptcy case was pending. The Court
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agrees.
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,
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.
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Here, Yuskauskas 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 Yuskauskas’ factual statements of assets
(which omitted his current claims), approved a requested modification to Plaintiff’s Chapter
13 Plan, entered an order deeming it complete pursuant to 11 U.S.C. §1329, discharged
Yuskauskas of his debts, entered a final decree, declared the bankruptcy estate of the
Yuskauskas fully administered, discharged the Trustee, and closed the bankruptcy
proceeding. Thus, Yuskauskas “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”).
Yuskauskas’ failure to identify his claims against Home Depot for unpaid
overtime as assets in his Chapter 13 bankruptcy proceeding warrants application of the
doctrine of judicial estoppel and dismissal of his lawsuit. Ibok v. SAIC-Sector Inc., 470
Fed. Appx. 27, 29 (2d Cir. May 16, 2012) (judicial estoppel is “commonly applied” by
courts to prevent the assertion of a claim by a party who failed to disclose the claim in a
bankruptcy proceeding); see e.g. Alli v. Boston Market Co., 2011 WL 3924246, at *1-2 (D.
Conn. Sept. 7, 2011) (applying judicial estoppel to bar FLSA claims made by former
assistant manager at a Boston Market that were not disclosed in her bankruptcy petition);
In re Family Dollar FLSA Litigation, 2011 WL 4899972, at *2-3 (W.D.N.C. Oct. 14,
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2011)(dismissing two FLSA claims on summary judgment based on judicial estoppel for
failure to disclose claims in bankruptcy filings where one plaintiff filed for bankruptcy nearly
two and one-half years before she filed a civil lawsuit under the FLSA for unpaid overtime
compensation); Gaskins v. Thousand Trails, LP, 521 F. Supp. 2d 693, 698 (S.D. Ohio
2007)(applying judicial estoppel to bar FLSA claims that were not disclosed in the
bankruptcy petition filed two years before the plaintiff filed her civil lawsuit); Tate v. Wayne
Farms LLC, 2008 WL 5272091, at *2 (S.D. Miss. Dec. 16, 2008)(applying judicial
estoppel to bar FLSA claims where plaintiff failed to list those claims in her Chapter 13
bankruptcy petition); Bolden v. Wayne Farms LLC, 2008 WL 5342122 (S.D. Miss. Dec. 16,
2008)(applying judicial estoppel to bar claims of plaintiffs where they failed to list FLSA
claims in their bankruptcy petitions); see also Ibok v. SIAC-Sector Inc., 2011 WL 979307,
at *3 (S.D.N.Y. March 14, 2011), aff’d 470 Fed. Appx. 27 (2d Cir. 2012) (“[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));
Coffaro, 721 F. Supp. 2d 141 ("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") (citations omitted); Kassner v. 2nd Ave. Delicatessen
Inc., 2005 WL 1018187, at * 4 (S.D.N.Y. April 29, 2005) ("A debtor who conceals a cause
of action during his bankruptcy case is not entitled to then litigate those claims for his own
benefit once the bankruptcy case is closed"); Rosenshein, 918 F. Supp. at 103 (holding
that plaintiff debtors lacked standing to pursue undisclosed claims against defendants and
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were thus barred from asserting such claims); Kunica, 233 B.R. at 53 ("A debtor may not
conceal assets and then, upon termination of the bankruptcy case, utilize the assets for its
own benefit").
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. # 107] is GRANTED, and all claims by Robert Yuskauskas in this action are
DISMISSED.
IT IS SO ORDERED.
Dated:December 16, 2013
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