Curry v. Brothers International

Filing 47

Order ADOPTING Report and Recommendations; granting Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 07/25/2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

DOMINIQUE CURRY,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BROTHER INTERNATIONAL, L.P.,

Defendant.

No. 11-2912

ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Before the Court are the January 11, 2013 Motion to Dismiss
(the “Motion”) filed by Defendant Brother International, L.P.
(“Brother”) and the Magistrate Judge’s June 19, 2013 Report and
Recommendation (the “Report”).
ECF

No.

objected

43.)

Pro

to

Magistrate

(Objections,

the
ECF

No.

Se

(Motion, ECF No. 32); (Report,

Plaintiff

44.)

Objections on July 19, 2013.

Judge’s

Dominique
Report

Brother

on

Curry
July

responded

to

(“Curry”)
3,

2013.

Curry’s

(Resp. to Objections, ECF No. 45.)

The Magistrate Judge recommends converting the Motion into one
for

summary

judgment

and

granting

it.

For

the

following

reasons, the Court ADOPTS the Report of the Magistrate Judge.

Brother’s

Motion

converted

into

one

for

summary

judgment

is

GRANTED.
I.

Background
On

October

14,

2011,

Curry

filed

a

pro

se

complaint

alleging violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq.

(Compl., ECF No. 1.)

Curry alleges that, on or about August 5, 2011, she was
discriminated

against

on

the

terminated her employment.

basis

of

(Report 2.)

sex

when

Brother

Curry filed charges of

discrimination with the Tennessee Fair Employment Commission and
the Equal Employment Opportunity Commission (“EEOC”) on August
8, 2011.

(Id.)

The EEOC issued a right-to-sue letter to Curry

on August 12, 2011.

(Id. 2-3.)

On August 15, 2011, Curry filed a bankruptcy petition (the
“Petition”)

in

the

United

States

Western District of Tennessee.

Bankruptcy

(Id. 3.)

Court

for

the

In her Petition, Curry

was required to “List all suits and administrative proceedings
to

which

immediately

the

debtor

preceding

is

or

(Id.)

Curry marked “NONE.”

Curry

was

required

to

a

party

filing

the

was

of

this

(Id.)

list

any

unliquidated claims of every nature.”
(Id.)

within

one

bankruptcy

year
case.”

Elsewhere in the Petition,
“[o]ther
(Id.)

contingent

and

She marked “NONE.”

Curry did not mention her discrimination claim against

2

Brother.

(Id.)

She declared under penalty of perjury that her

answers were true and correct.

(Id.)

Also on August 15, 2011, Curry filed a Chapter 13 Plan in
the bankruptcy court proposing to pay $89.00 per week.

(Id.)

On

Order

August

19,

2011,

the

bankruptcy

court

entered

an

Directing Debtor(s) to Make Payments to Trustee, which required
Curry to pay $89.00 per week.

(Id. 3-4.)

On September 17,

2011, the bankruptcy court entered an Order Directing Debtor to
Change Payments to Trustee, which altered Curry’s payments to
$143.00 per week.

(Id. 4.)

court

order

entered

an

On October 3, 2011, the bankruptcy

amending

Curry’s

bankruptcy

plan

“to

include the balance of fines and costs owed to Shelby County and
payable

to

Creditor.”

the
(Id.)

Clerk

of

General

Sessions

Criminal

Court

On October 14, 2011, Curry filed her pro se

complaint in this Court.

(Id.)

On October 27, 2011, the bankruptcy court entered an order
that confirmed and finalized Curry’s plan to pay $143.00 per
week.

(Id.)

On November 14, 2012, Curry’s bankruptcy attorney

filed amended property schedules in the bankruptcy court, which
added an “[e]xpected EEOC settlement from Brother and Aerotek
resulting from a discrimination suit.” 1

1

(Id.)

Curry listed the

Aerotek is not a named defendant in this case. Curry’s action against
Aerotek is a “related lawsuit against another company.” (Report 4 n.3.)

3

current

value

$22,000.00.

of

the

claims

against

Brother

and

Aerotek

as

(Id.)

On November 8, 2012, information about Curry’s bankruptcy
and discrimination claims came to light during her deposition in
her case against Aerotek.

(Id. 5.)

Curry admitted that she had

read the answers provided in her Petition and understood the
importance of their accuracy.
filed

the

Petition

under

(Id.)

penalty

of

Curry admitted that she
perjury.

(Id.)

Curry

admitted that she responded “NONE” when the Petition asked her
to

list

suits

and

administrative

garnishments, and attachments.

(Id.)

proceedings,

executions,

Curry stated that she did

not understand the question correctly or “didn’t know what this
was going to lead to” because it was her “first time going
through something like this.”

(Id.)

Although Curry stated that

she employed a law firm to file for bankruptcy, she did not ask
a lawyer for help in answering the question about the status of
administrative proceedings. (Id.)
II.

Standard of Review

A. 28 U.S.C. § 636
Congress intended 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of district
court duties to magistrate judges.
237

F.3d

States,

598,
490

602

U.S.

(6th
858,

Cir.

See United States v. Curtis,

2001)

869-70
4

(citing

(1989));

see

Gomez
also

v.

United

Baker

v.

Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

“A district

judge must determine de novo any part of a magistrate judge’s
disposition that has been properly objected to.”
P.

72(b);

28

U.S.C.

§

636(b)(1)(C).

Fed. R. Civ.

After

reviewing

the

evidence, the court is free to accept, reject, or modify the
proposed findings or recommendations of the magistrate judge. 28
U.S.C. § 636(b)(1)(C).

The district court is not required to

review—under a de novo or any other standard—those aspects of
the report and recommendation to which no objection is made.
Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court
should adopt the findings and rulings of the magistrate judge to
which no specific objection is filed.

Id. at 151.

“Failure to identify specific concerns with a magistrate
judge’s report results in treatment of a party’s objections as a
general objection.”

McCready v. Kamminga, 113 F. App’x 47, 49

(6th

A

Cir.

2004).

general

objection

equivalent of failing to object entirely.”

“is

considered

the

Id. (citing Howard

v. Sec. of Health Human Servs., 932 F.2d 505, 509 (6th Cir.
1991)).
litigants.

The

Sixth

Circuit’s

standard

applies

to

pro

se

Id.

B. Summary Judgment
Curry does not object to the conversion of Brother’s Motion
into one for summary judgment.

Because Curry has not objected,

and the time for doing so has passed, the Court will follow the
5

Magistrate

Judge’s

recommendation

to

analyze

Brother’s

Motion

under the standard for summary judgment.
Under

Federal

Rule

of

Civil

Procedure

56,

on

motion

of

either party, the court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

The moving party “bears the burden of

clearly and convincingly establishing the nonexistence of any
genuine [dispute] of material fact, and the evidence as well as
all inferences drawn therefrom must be read in a light most
favorable to the party opposing the motion.”

Kochins v. Linden-

Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986); see Fed. R.
Civ.

P.

56(a).

demonstrating
opportunities

The

that
for

moving

the

party

satisfies

this

burden

having

had

sufficient

evidence

to

respondent,

discovery,

has

essential element of her case.

no

support

by

an

See Fed. R. Civ. P. 56(c)(2);

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.
1989).
When

confronted

with

a

properly

supported

motion

for

summary judgment, the respondent must set forth specific facts
showing that there is a genuine dispute for trial.
Civ.

P.

56(c).

A

genuine

dispute

for

trial

See Fed. R.

exists

if

the

evidence is such that a reasonable jury could return a verdict
for the nonmoving party.

See Anderson v. Liberty Lobby, Inc.,
6

477 U.S. 242, 248 (1986).

The nonmoving party must “do more

than simply show that there is some metaphysical doubt as to the
material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986).

Mere reliance on the pleadings

is insufficient opposition to a properly supported motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

See

Instead,

the nonmovant must present “concrete evidence supporting [her]
claims.”

Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d

934, 937 (6th Cir. 1989) (citations omitted); see Fed. R. Civ.
P. 56(c)(1).
search

the

The district court does not have the duty to

record

for

such

evidence.

See

Fed.

R.

Civ.

P.

56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
Cir. 1989).

The nonmovant has the duty the identify specific

evidence in the record that would be sufficient to justify a
jury decision in her favor.

See Fed. R. Civ. P. 56(c)(1);

InterRoyal Corp., 889 F.2d at 111.

“Summary judgment is an

integral

part

as

designed

to

determination

of

the

secure
of

every

procedural shortcut.”

Federal
the

Rules

just,

action[,]

a

speedy,
rather

whole,
and
than

which

are

inexpensive
a

disfavored

FDIC v. Jeff Miller Stables, 573 F.3d

289, 294 (6th Cir. 2009) (internal quotation marks and citations
omitted).
III. Analysis
A. Proposed Findings of Fact
7

Curry

objects

that:

(1)

she

corrected

mistakes

on

her

bankruptcy filings within one week of discovering her error; (2)
she

never

intended

premeditated
profit;

(3)

act

to

to

“cause

any

mistakes

any

court

made

malicious

of

in

law

her

or

for

orchestrated,

gamesmanship”

bankruptcy

filing

or

were

inadvertent and the result of stresses that accompanied being
the head of her household; (4) she has voluntarily increased her
bankruptcy

payments;

and

(5)

her

case

is

“about [her] personal financial affairs.”

about

justice,

not

(Objections 3-6.)

Under a separate section entitled “Information Outside the
Pleadings,”

Curry

identifies

understands as objections.

several

issues

(Id. 8.)

that

the

Court

The gravamen of those

objections is that, although Curry “made a mistake on paper,”
she didn’t make a “mistake on [her] job.”

(Id.)

1. Corrections To Petition
Curry objects that she corrected mistakes on her bankruptcy
filings

within

a

week

of

discovering

an

error.

Curry’s

objection is consistent with the Magistrate Judge’s Report.

The

Magistrate Judge notes that Curry learned of her mistake at a
(Id. 5.)

deposition on November 8, 2012.

He notes that Curry

“did amend her Petition on November 14, 2012,” within one week.
The Magistrate Judge’s finding of fact is correct.
2.

Mistake and Gamesmanship

8

Curry admits that she made mistakes on her Petition, but
she objects that her mistakes were not intended to “cause any
malicious or orchestrated, premeditated act to any court of law
for gamesmanship.”

(Objections 3-4.).

Although styled as an

objection to a finding of fact, the Court understands Curry to
address

the

Magistrate

Judge’s

legal

conclusion

that

Curry

should be judicially estopped from raising her discrimination
claim.

(Report 16-18.)

The

Magistrate

estoppel.

(Report

Judge
12)

relies

(“[T]he

on

sole

a

theory

issue

is

of

judicial

whether

Curry

should be judicially stopped from proceeding in the instant case
due to her representations to the bankruptcy court.”).

Section

521 of the United States Bankruptcy Code states that debtors
must file a “schedule of assets and liabilities, a schedule of
income and current expenditures, and a statement of the debtor’s
financial affairs[.]”

11 U.S.C. § 521(a)(1).

settled

of

that

a

cause

scheduled under § 521.”

action

is

an

“[I]t is well-

asset

that

must

be

Lewis v. Weyerhaeuser Co., 141 F. App’x

420, 424 (6th Cir. 2005).

This disclosure requirement is a

continuing legal duty “and a debtor is required to disclose all
potential causes of action.”
Judicial
prevailing
relying

on

estoppel

in
a

one

phase

Id.

“generally
of

contradictory

a

case

argument
9

prevents
on

an

to

a

party

argument
prevail

in

and

from
then

another

place.”

New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

It

is used “to preserve the integrity of the courts by preventing a
party

from

abusing

gamesmanship.”

the

judicial

process

through

cynical

White v. Wyndham Vacation Ownership, Inc., 617

F.3d 472, 475-76 (6th Cir. 2010) (citing Browning v. Levy, 283
F.3d 761, 775 (6th Cir. 2002)).
Three considerations bear on the application of judicial
estoppel:
(1)
a
party’s
later
position
must
be
clearly
inconsistent with its earlier position; (2) whether
the party has succeeded in persuading a court to
accept that party’s earlier position, so that judicial
acceptance of an inconsistent position in a later
proceeding would create the perception that either the
first or the second court was misled; and (3) whether
the party seeking to assert an inconsistent position
would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped.
New

Hampshire,

“inflexible

532

U.S.

prerequisites

at

750–51.

The

an

exhaustive

or

factors

formula

determining the applicability of judicial estoppel.”
751.

are

not
for

Id. at

The Sixth Circuit urges courts to “avoid impinging on the

truth-seeking function of the court, because [judicial estoppel]
precludes a contradictory position without examining the truth
of either statement.”

Eubanks v. CBSK Fin. Group, Inc., 385

F.3d 894, 897 (6th Cir. 2004) (citation and internal quotation
marks omitted).

10

In

the

established

bankruptcy
three

context,

factors

to

the

support

Sixth

a

Circuit

finding

of

has

judicial

estoppel:
(1) [a party] assumed a position contrary to the one
that [the party] asserted under oath in the bankruptcy
proceeding; (2) the bankruptcy court adopted the
contrary position either as a preliminary matter or as
part of a final disposition; and (3) [the party’s]
omission did not result from mistake or inadvertence.
White, 617 F.3d at 478.

To determine whether conduct was the

result of mistake or inadvertence, the Sixth Circuit considers
whether “(1) [the party] lacked knowledge of the factual basis
of the undisclosed claims; (2) [the party] had a motive for
concealment; and (3) the evidence indicates an absence of bad
faith.”

Id.

The Magistrate Judge concludes, and the Court agrees, that
the

application

of

judicial

estoppel

is

appropriate.

It

is

uncontested that Curry assumed a contrary position earlier in
her bankruptcy proceeding, and that the bankruptcy court adopted
that contrary position by confirming a final bankruptcy plan on
October
position

27,
was

2011.
a

Curry

mistake,

submits

but

no

that

evidence

assuming

a

contrary

supports

her

claim.

Curry received a notice of right to sue from the EEOC before
filing her Petition, which shows that she “had knowledge of the
factual basis of the undisclosed harassment claim, since she had
already filed a complaint before the EEOC.”

11

White, 617 F.3d at

479; see also Thomas v. Proctor and Gamble Distrib., No. 1:11cv-796,

2012

WL

4107968,

at

*3

(S.D.

Ohio

Sept.

19,

2012)

(“Plaintiff’s EEOC filing makes clear that she had knowledge of
the facts forming the basis of her discrimination claim[]. . .
.”).

Curry received her right-to-sue letter on August 12, 2011,

and filed her Petition, omitting her discrimination claim, on
August 15, 2011.

Curry had knowledge of the factual basis for

her undisclosed claim.
The Magistrate Judge also concludes, and the Court agrees,
that Curry had a motive to conceal her claim.
a

Chapter

assets.”

13

petitioner’s

Lewis,

141

F.

interest

App’x

at

to
426;

“It is always in

minimize

income

see

Johnson

also

and
v.

Interstate Brands Corp., No. 07-2227B, 2008 WL 152895, at *4
(W.D. Tenn. Jan. 14, 2008) (“A motive to conceal can be inferred
from the omission itself, because [b]y omitting the claims, [the
debtor] could keep any proceeds for herself and not have them
become part of the bankruptcy estate.”) (internal citation and
quotation marks omitted).
is practical.

The policy underlying this conclusion

If Curry’s discrimination claim became part of

her bankruptcy estate, the proceeds could be paid to satisfy her
creditors instead of paying her directly.
at 479.

See White, 617 F.3d

Curry had a motive to conceal her claim.

Curry submits that she did not act in bad faith because she
corrected

the

mistake

on

her
12

Petition

within

a

week

of

discovering it.

To show an absence of bad faith, a plaintiff

must demonstrate “her attempts to correct her initial omission.”
Id. at 480.

Curry amended her Petition on November 14, 2012,

more than a year after filing her Petition and more than a year
after filing the instant action.

Her amendment was filed only

after she was deposed in the Aerotek case on November 8, 2013.
She only “fixed her filings after the opposing party pointed out
that

[her

Petition]

was

inaccurate.”

Id.

at

481.

The

circumstances show that a misrepresentation, not a mistake, was
uncovered

during

the

Aerotek

deposition.

Failure

to

apply

judicial estoppel “would only diminish the necessary incentive
to provide the bankruptcy court with a truthful disclosure of
the debtor’s assets.”

Swanigan v. Northwest Airlines, Inc., 718

F. Supp. 2d 917, 922 (W.D. Tenn. 2010).
To the extent Curry amended her Petition, she amended only
that part titled Schedule B.
Financial Affairs.
absence

of

bad

She did not amend her Statement of

Partial amendments are inadequate to show an

faith.

See

White,

617

F.3d

at

481

(“[The

plaintiff] did not adequately fix those filings, but instead,
only updated a part of them (so that they still did not reflect
the estimated value of the lawsuit).”).

Curry’s untimely and

inadequate attempt to inform the bankruptcy court of her claim
against Brother does not show an absence of bad faith.
estoppel is appropriate.
13

Judicial

Curry also objects that she has voluntarily increased her
bankruptcy
“about
The

payments

[her]

and

personal

Magistrate

that

her

financial

Judge’s

case

is

about

affairs.”

Report

does

voluntarily increasing her payments.

justice,

(Objections

not

address

not

3-6.)

Curry’s

Whether she increased her

payments is not germane to judicial estoppel.

To the extent she

objects on that ground, her objection is OVERRULED.
Curry
“personal

objects

that

financial

her

case

affairs.”

is

about

Judicial

justice,
estoppel

not

her

turns

on

contrary representations made in separate proceedings, which in
this case directly implicates Curry’s representations about her
personal financial affairs.
of judicial estoppel.

The facts support the application

Curry’s objection is OVERRULED.

B. Proposed Conclusions of Law
In a section characterized as objecting to the Magistrate
Judge’s conclusions of law, Curry states that she is proceeding
pro se and describes the personal hardship that the litigation
has caused.

(Objections 9-10.)

not

rooted

in

specifically

to

any
the

legal

Those are general objections

doctrine.

Magistrate

Failing

Judge’s

effect as would a failure to object.”

Report

“has

to

object

the

Howard, 932 F.2d at 509.

Because her Objections are insufficient, they are OVERRULED.
IV.

Conclusion

14

same

For

the

foregoing

reasons,

Curry’s objections are OVERRULED.

the

Report

is

ADOPTED

and

Summary Judgment is GRANTED.

So ordered this 25th day of July, 2013.

s/ Samuel H. Mays, Jr.______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

15