Vaughn v. Online Information Services Inc et al

Filing 64

ORDER granting in part 63 Motion motion to supplement, incorporate, and for oral argument. Plaintiff and defendant each have two weeks from the date of this order to file a five-page supplemental brief on judicial estoppel. The Court will determine whether oral argument is needed after the supplemental briefs are filed. Signed by Judge Susan J. Dlott on 11/13/2023. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Melissa Vaughn,
Case No. I:21-cv-291

PlaintifT,

Judge Susan J. Dlott
V.

Order Granting in Part Defendant's

EquityExperts.org Midwest, LLC,et ai.

Motion

Defendants.

This matter is before the Court on the Motion to Supplement, Incorporate, and for Oral
Argument on Dispositive Motions filed by Defendant EquityExperts.org Midwest, LLC. (Doc.
63.) Separately pending are cross-Motions for Summary Judgment. (Docs. 41-43.)
Defendant learned after it had filed its Motion for Summary Judgment that Plaintiff was

engaged in bankruptcy proceedings, but she had not disclosed either the bankruptcy proceeding
in this case or this case in the bankruptcy proceeding. (Doc. 49.) Defendant raised the defense

ofjudicial estoppel—^based on Plaintiffs failure to disclose the bankruptcy proceeding—in its
Memorandum in Opposition to Plaintiffs Motion for Summary Judgment. Plaintiff, then, in her
Reply brief, argued that judicial estoppel was inappropriate because she remedied her "mistake"

by amending the bankruptcy filings to disclose the existence ofthis case. (Docs. 59,62.)
Defendant now seeks leave to file a sur-reply to address Plaintiffs contention that her

failure to disclose this case in the bankruptcy proceeding was a mistake. It also seeks to

incorporate the sur-reply into its Motion for Summary Judgment briefing so that judicial estoppel
can be considered an affirmative basis to grant it summary judgment, not merely a defense to

Plaintiffs summaryjudgment. Finally, Defendant requests oral argument on the summary

judgment briefs.

Defendant's Motion to Supplement, Incorporate, and for Oral Argument on Dispositive
Motions is GRANTED IN PART. {Doc. 63.) Plaintiff and Defendant each have two weeks

from the date of this Order to file a five-page supplemental brief on judicial estoppel. The
parties are encouraged to address not only the issue of whether Plaintiff acted in bad faith, but
also whether the bankruptcy court relied on PlaintifTs initial non-disclosure of this case as a

preliminary matter or as part of its final disposition before she remedied her omission. See
Assasepa v. JPMorgan Chase Bank, 2012 U.S. Dist. LEXIS 3491, at *35 (S.D. Ohio Jan. 11,

2012)("The Sixth Circuit has held that in the bankruptcy context,judicial estoppel bars a party
from (1) asserting a position that is contrary to one that the party has asserted under oath in a

prior proceeding, where(2)the prior court adopted the contrary position either as a preliminary
matter or as part of a final disposition.")(cleaned up). The Court will consider the issue of

judicial estoppel to be raised by Defendant as a basis for granting it summary judgment and for
denying Plaintiffsummary judgment. Finally, the Court will determine whether oral argument is
needed after the supplemental briefs are filed.
IT IS SO ORDERED.
BY THE COURT:

Susan J. DIott

y

United States District Judge