SANDRA SLATER v. U. S. STEEL CORPORATION
No. 12-15548
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
February 24, 2016
D.C. Docket No. 2:09-cv-01732-KOB
Appeal from the United States District Court for the Northern District of Alabama
(February 24, 2016)
Before TJOFLAT and WILLIAM PRYOR, Circuit Judges, and SCOLA,* District Judge.
*Honorable Robert N. Scola, Jr., United States District Judge for the Southern District of Florida, sitting by designation.
The equitable doctrine of judicial estoppel, also known as the doctrine of preclusion of inconsistent positions, “precludes a party from asserting a . . . position that contradicts or is inconsistent with a prior position taken by the same party.” 18 James Wm. Moore et al., Moore‘s Federal Practice ¶ 131.13[6][a] (3d ed. 2015). The doctrine differs from the doctrines of issue and claim preclusion in that the policy animating it “is not [primarily] concerned with preserving the finality of judgments” but is concerned, instead, with “the orderly administration of justice and regard for the dignity of court proceedings.” Id. ¶ 131.13[6][c]. The doctrine may be invoked by a third party: that is, someone who was not a party in the adversary‘s prior proceeding and therefore would suffer no prejudice were the adversary permitted to go forward with the inconsistent position. Id. ¶ 134.33[1].1
This is so in our circuit. We do not require that the party invoking the doctrine have been a party in the prior proceeding. “The doctrine of judicial estoppel protects the integrity of the judicial system, not the litigants; therefore, . . . [w]hile privity and/or detrimental reliance are often present in judicial estoppel cases, they are not required.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir. 2002) (alteration in original) (quotation marks omitted) (quoting
I.
A.
The case at hand is an employment-discrimination action brought by Sandra Slater against United States Steel Corporation (“U.S. Steel“), her former employer.2 Slater raises two issues on appeal: (1) whether the District Court correctly granted summary judgment to U.S. Steel on her claim for “racial . . . discrimination,” and (2) whether the District Court correctly dismissed other employment-discrimination claims based on judicial estoppel that had proceeded past summary judgment and were set for trial. We affirm the District Court on both issues.3
Twenty-one months after bringing this lawsuit, Slater, represented by separate counsel, filed a Chapter 7 bankruptcy petition.4 In filling out the Statement of Financial Affairs part of her petition, Slater, under penalty of perjury, answered “none” to the Personal Property Schedule B question asking whether she had any “contingent and unliquidated claims” and “none” to the Statement of Financial Affairs question asking whether she was, or had been within one year immediately preceding the filing of her petition, “a party” to any “suits and administrative proceedings.”
In her memorandum, Slater argued that invoking the doctrine of judicial estoppel would be inappropriate for three reasons, two based on the United States Supreme Court‘s decision in New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001), the third based on the Fourth Circuit‘s decision in Folio v. City of Clarksburg, 134 F.3d 1211 (4th Cir. 1998). First, Slater argued that judicial estoppel would be inappropriate under New Hampshire because she had not “succeeded in persuading [the bankruptcy] court to accept [her] position” that she had no claims pending against U.S. Steel, because she had not yet received a discharge of her debts by the Bankruptcy Court, and therefore had created “no risk of inconsistent court determinations” that could pose a “threat to judicial integrity.” Second, Slater contended that judicial estoppel should not be invoked
While U.S. Steel‘s alternative motions were pending, the following occurred. First, the Bankruptcy Court approved the application of the trustee of Slater‘s bankruptcy estate to employ the lawyers representing Slater in her case against U.S. Steel as special counsel for the bankruptcy estate and, in that capacity, continue to pursue the claims being litigated. Second, a short time later, Slater, through counsel, petitioned the court to convert her Chapter 7 case to a Chapter 13 case. The court granted her motion, and Slater promptly filed a Chapter 13 petition and an Amended Personal Property Schedule B. Three months later, the Bankruptcy Court affirmed the plan Slater proposed for the payment of her debts over a period of forty-two months.
The District Court ruled on U.S. Steel‘s alternative motions while Slater‘s plan was being carried out. The court declared moot U.S. Steel‘s motion to dismiss the case on the ground that Slater lacked standing. A Chapter 13 debtor
B.
The District Court concluded that the doctrine of judicial estoppel as formulated in Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), and Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir. 2010), controlled its decision. In Burnes, we observed that
[i]n the Eleventh Circuit, courts consider two factors in the application of judicial estoppel to a particular case. First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.
291 F.3d at 1285 (quotation marks and citation omitted) (quoting Salomon Smith Barney, Inc. v. Harvey, 260 F.3d 1302, 1308 (11th Cir. 2001), vacated on other grounds, 537 U.S. 1085, 123 S. Ct. 718, 154 L. Ed. 2d 629 (2002)). In Robinson, we observed that “[w]hen considering a party‘s intent [under the second prong of our test] . . . the debtor‘s failure to satisfy its statutory disclosure duty is ‘inadvertent’ only when, in general, the debtor either lacks knowledge of the
U.S. Steel was entitled to summary judgment, the District Court held, because it established both Burnes factors as a matter of law. The court summarily dispatched Slater‘s argument that U.S. Steel failed to establish the two New Hampshire factors she had cited in her memorandum in opposition to U.S. Steel‘s alternative motions with the statement that Burnes “[i]ncorporat[ed] those considerations” in “outlin[ing] [the] two factors whose presence call for the imposition of judicial estoppel.”
The District Court viewed Burnes and Robinson as controlling its decision because, like Slater‘s case, they
involved the plaintiff‘s inconsistent sworn testimony in two separate proceedings, a bankruptcy proceeding and a federal employment discrimination case. In both cases, the plaintiff failed to disclose the existence of the pending lawsuit seeking monetary compensation as an asset in the bankruptcy proceeding. The Eleventh Circuit found in both cases that the plaintiff had a duty to disclose the federal lawsuit as an asset; that the failure to reflect the lawsuit in the bankruptcy case was a breach of that duty resulting in inconsistent positions under oath; that the district court, in its discretion, could infer from the record the requisite intent to make a mockery of the judicial system; and thus, that the court‘s application of the doctrine of judicial estoppel to grant summary judgment was not clear error.10
the Eleventh Circuit explained that ‘the relevant inquiry is intent at the time of non-disclosure’— the motive to conceal is measured prior to the time the adversary discovers and reveals the concealment. It further explained that . . . ‘the motive to conceal stems from the possibility of defrauding the courts and not from any actual fraudulent result.’
The District Court stated, “The Eleventh Circuit emphasized, not only in Robinson but also in Burnes, that waiting until after being caught to rectify the omission is too little, too late.” In Burnes, the District Court noted,
the Eleventh Circuit . . . explain[ed] that allowing a plaintiff to amend his bankruptcy petition ‘only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing potential assets only if he is caught concealing them. The so-called remedy would only diminish the necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtors’ assets.’
Slater appeals the District Court‘s judgment. For the reasons that follow, we affirm.
II.
Slater seeks the vacation of the District Court‘s judgment and a remand of the case for further proceedings on two alternative grounds.11 First, Slater argues that the District Court failed to give appropriate weight to two of the three factors the Supreme Court deemed critical in New Hampshire in considering whether to apply the doctrine of judicial estoppel. Second, she contends, the New Hampshire factors aside, that the District Court erred in applying Eleventh Circuit precedent.12
Judicial estoppel is an equitable doctrine. We review a trial court‘s decision whether to apply the doctrine for abuse of discretion. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). An abuse of discretion occurs when the court bases its ruling on an incorrect legal standard. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004) (citing Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1336 (11th Cir. 2002)).
III.
The overriding purpose of the doctrine of judicial estoppel as stated in New Hampshire and by the federal circuits is “to prevent the perversion of the judicial process,” indeed “the essential integrity of [that] . . . process, by prohibiting parties from changing positions according to the exigencies of the moment.” See New Hampshire v. Maine, 532 U.S. 742, 749–50, 121 S. Ct. 1808, 1814–15, 149 L. Ed. 2d 968 (2001) (quotation marks and citations omitted) (citing the doctrine‘s purpose as expressed in various federal courts of appeal). The doctrine has been applied broadly to legal proceedings in various contexts before a variety of
The doctrine is ordinarily applied in two scenarios. The first is where the party asserting the doctrine was a party in the earlier proceeding in which the party‘s adversary took a position inconsistent with the position the adversary is currently advancing. New Hampshire presents this scenario. The second scenario is where the party asserting the doctrine was not a party in the earlier proceeding and thus did not have to deal with the position its adversary took in that proceeding. Burnes presents this scenario.13
A.
New Hampshire v. Maine involved a boundary dispute. New Hampshire brought an original action in the Supreme Court in 2000 seeking a decree fixing the New Hampshire–Maine boundary that follows the Piscataqua River. New Hampshire, 532 U.S. at 745, 121 S. Ct. at 1812. New Hampshire “contend[ed] that the inland river boundary ‘run[s] along the low water mark on the Maine shore,’ . . and assert[ed] sovereignty over the entire river.” Id. at 747, 121 S. Ct. at 1813 (second alteration in the original). Maine moved the Court to dismiss New Hampshire‘s complaint on the ground that “two prior proceedings—a 1740 boundary determination by King George II and a 1977 consent judgment entered by th[e] Court—definitively fixed the Piscataqua River boundary at the middle of
The Court granted Maine‘s motion. In doing so, it “pretermit[ted] the States’ competing historical claims along with their arguments on the application vel non of the res judicata doctrines commonly called claim and issue preclusion.” New Hampshire, 532 U.S. at 748, 121 S. Ct. at 1814. Instead, the Court concluded that “a discrete doctrine, judicial estoppel, best fit[] the controversy.” Id. at 749, 121 S. Ct. at 1814.
After noting that “[c]ourts have observed that the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,” id. at 750, 121 S. Ct. at 1815 (alterations and quotation marks omitted) (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982)), the Court identified the three factors that “typically inform the decision whether to apply the doctrine in a particular case“:
First, a party‘s later position must be “clearly inconsistent” with its earlier position. Second, . . . 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.” Absent success in a prior proceeding, a party‘s later inconsistent position introduces “no risk of inconsistent court determinations,” and thus poses little threat to judicial integrity. . . . [T]hird[,] . . . 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.
Id. at 750–51, 121 S. Ct. at 1815 (quotation marks and citations omitted).
The Court found the second and third factors dispositive, as the following passage of its opinion indicates:
[C]onsiderations of equity persuade us that application of judicial estoppel is appropriate in this case. Having convinced this Court to accept one interpretation of “Middle of the River,” and having benefited from that interpretation, New Hampshire now urges an inconsistent interpretation to gain an additional advantage at Maine‘s expense. Were we to accept New Hampshire‘s latest view, the “risk of inconsistent court determinations” would become a reality. We cannot interpret “Middle of the River” in the 1740 decree to mean two different things along the same boundary line without undermining the integrity of the judicial process.
Id. at 755, 121 S. Ct. at 1817 (citation omitted) (quoting United States v. C.I.T. Constr. Inc., 944 F.2d 253, 259 (5th Cir. 1991)).
The factual predicate that prompted the Court to apply the doctrine was this: permitting New Hampshire to go forward would be unfair to Maine. New Hampshire got what it wanted in the 1977 consent decree. Now it wanted the Court to effectively undo that decree and afford it an additional advantage at Maine‘s expense. The Court dismissed New Hampshire‘s complaint because it
B.
Burnes v. Pemco Aeroplex, Inc. involved inconsistent positions taken by a debtor in a Chapter 7 bankruptcy case and in an employment-discrimination case.14 291 F.3d 1282, 1284 (11th Cir. 2002). The salient facts were these.
In July 1997, Levi Billups petitioned the Bankruptcy Court for the Northern District of Alabama for Chapter 13 relief. Id. On January 30, 1998, “Billups filed a charge of discrimination with the EEOC against Pemco.” Id. In December 1999, he and thirty-five other Pemco employees brought a lawsuit against Pemco alleging discrimination in the workplace in violation of Title VII of the Civil Rights Act of 1964. Id. Billups, however, did not amend his Chapter 13 schedule of assets to reflect the lawsuit. Id.
In October 2000, the Bankruptcy Court converted Billups‘s Chapter 13 case to a Chapter 7 case and “ordered Billups to [submit] amended or updated schedules to the Chapter 7 trustee reflecting any financial changes since he first filed schedules with the bankruptcy court.” Id. Billups filed the amended schedules,
The District Court granted the motion because the material facts before it fit hand in glove with the facts in Chandler v. Samford University, 35 F. Supp. 2d 861 (N.D. Ala. 1999). Mem. Op. at 5, Burnes v. Pemco Aeroplex, Inc., No. 2:99-cv-03280-WMA (N.D. Ala. June 4, 2001), ECF No. 53. In that case, the plaintiff, Joycealyn Chandler, filed a Title VII race-discrimination suit against Samford University, her former employer. Chandler, 35 F. Supp. 2d at 862. After her Chapter 13 bankruptcy case had been converted to a Chapter 7 case, she failed to inform the Bankruptcy Court of the lawsuit. Id. at 862–63. The Bankruptcy Court, finding that she had no reachable assets, ordered Chandler‘s debts discharged. Id. at 863. Samford University, having learned of the bankruptcy and Chandler‘s failure to reveal her lawsuit during the bankruptcy proceedings, moved the District Court for summary judgment, asserting judicial estoppel. Id.
The District Court in Chandler considered the application of judicial estoppel “to be one of first impression for . . . the Eleventh Circuit,” but
Id. at 864. Finding that Chandler had been well aware of her duty to inform the Bankruptcy Court of her pending Title VII suit15 and had “an obvious motive for concealing her claims against Samford,” the court applied the doctrine and refused to entertain her claims. Id. at 865.
The District Court granted Pemco‘s motion for summary judgment on June 4, 2001, six days after the opinion in New Hampshire came down.16 Mem. Op. at 1, Burnes v. Pemco Aeroplex, Inc., No. 2:99-cv-03280-WMA (N.D. Ala. June 4, 2001), ECF No. 53. One of the issues Billups presented to this court on appeal was whether New Hampshire effectively overruled Chandler‘s judicial-estoppel analysis, which the District Court had applied in reaching its decision. We addressed the issue after restating the Chandler analysis to conform to Eleventh Circuit precedent. Burnes, 291 F.3d at 1285–86. Citing Salomon Smith Barney, Inc. v. Harvey, 260 F.3d 1302, 1308 (11th Cir. 2001), vacated on other grounds,
Id. (citing New Hampshire, 532 U.S. at 750-51, 121 S. Ct. at 1815). We noted that the Supreme Court had been quick to say that these factors did not constitute “inflexible prerequisites or an exhaustive formula for determining the applicability
Cir. 1983). American National Bank cited Johnson Service Co. v. Transamerica Insurance Co., 485 F.2d 164, 174 (5th Cir. 1973), a diversity case based on Texas common law, as the authority for the doctrine. “Judicial estoppel is applied to the calculated assertion of divergent sworn positions. The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings.” Am. Nat‘l Bank, 710 F.2d at 1536 (citing Johnson Serv., 485 F.2d at 174).
The Salomon Court relied specifically on two cases in articulating the elements of judicial estoppel. The first case was Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998). Taylor presented a Burnes scenario. Gary Taylor‘s guardian sued Taylor‘s employer claiming that the employer had terminated Taylor in violation of his rights under the Americans with Disabilities Act (“ADA“),
The second case was Johnson Service. In that case, the former Fifth Circuit applied the doctrine of judicial estoppel as formulated by Texas common law. 485 F.2d at 174. In Chrysler Credit Corporation v. Rebhan, which presented a New Hampshire scenario, this court cited Johnson Service in formulating for the first time in the Eleventh Circuit the doctrine of judicial estoppel as a matter of federal law. Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1261 (11th Cir. 1988), abrogated on other grounds by Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991) (“The policy interests [which gave rise to the doctrine] are simply stated by the doctrine itself. The doctrine of judicial estoppel “is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings.“” (quoting Johnson Serv., 485 F.2d at 174)).
We then held that each of the two judicial-estoppel factors spelled out in Salomon had been met. Id. at 1286-88. First, Billups took an inconsistent position under oath when he represented that he had no assets in the form of pending legal claims despite the fact that he was in the process of pursuing a Title VII claim against Pemco.18 Id. at 1286. Second, the District Court did not err when it
In an attempt to avoid the dismissal of his claims, Billups argued that he should be permitted to re-open his bankruptcy case to comply with the Bankruptcy Court‘s order that he inform the Chapter 7 trustee of his lawsuit against Pemco. Id. We rejected the argument and affirmed the District Court‘s judgment. Allowing Billups to re-open his case and amend his bankruptcy filings to reveal his lawsuit
The factual predicate that prompted this court to apply the doctrine was this: Billups intentionally concealed from the Bankruptcy Court his claim against Pemco thereby depriving the Chapter 7 trustee of the ability to intervene and prosecute his claim for the benefit of the bankruptcy estate and his creditors. If this court permitted Billups to re-open his bankruptcy case, it would be condoning his behavior, and, to the extent that such behavior would be noised about, it would be encouraging future debtors to follow suit. In short, we would be undermining the administration of the bankruptcy law and the integrity of the judicial process.
We reiterated this concern in Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003). The City of Cartersville demoted Barger from her position as Personnel Director to customer-sales representative on January 8, 2001. Id. at 1291. On July 18, 2001, Barger sued the City in the District Court claiming that her demotion violated the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family Medical Leave Act. Id. For relief, she sought reinstatement to her Personnel Director position. Id. On September 4, 2001, Barger, represented by a bankruptcy attorney, petitioned the Bankruptcy Court for Chapter 7 protection. Id. The lawsuit with the City was not disclosed in the
On November 7, 2001, after negotiations with the City failed, her employment attorney amended her complaint against the City to add claims for compensatory and punitive damages. Id. The next day, at a meeting of creditors, Barger told her bankruptcy attorney, and in turn, the trustee, about her case against the City. Id. She told them that she was seeking reinstatement to her former position, as Personnel Director, but omitted to say that she was also seeking damages. Id. Despite this, no amendment was made to the Statement of Financial Affairs and Personal Property Schedule B to reflect the pending lawsuit. See id.
The Bankruptcy Court subsequently granted Barger a complete discharge of her debts; it was a “no asset discharge.” Id. When the City learned that Barger had been in bankruptcy and had concealed her case against the City from the Bankruptcy Court, it moved the District Court for summary judgment, asserting that the doctrine of judicial estoppel barred Barger‘s claims. Id. Barger responded by moving the Bankruptcy Court to reopen her Chapter 7 case, so that the trustee of her bankruptcy estate could prosecute the pending lawsuit in her stead. Id. at 1291-92. The Bankruptcy Court, over the City‘s objection, granted her motion and reopened the case for that purpose, finding that Barger “did not conceal the [discrimination] claim or attempt to obtain a financial advantage for herself“. In
On appeal, we considered the trustee of Barger‘s bankruptcy estate the appellant since Barger‘s claims constituted property of the estate. Id. at 1292-93. But we attributed to the trustee Barger‘s conduct in determining whether the District Court had abused its discretion in invoking judicial estoppel to bar the claims. Id. at 1295.
In seeking the reversal of the District Court‘s judgment, the trustee focused on the District Court‘s rejection of the Bankruptcy Court‘s findings and its substitution for such findings the determination that Barger intended to manipulate the judicial system. Id. The trustee cited the following undisputed facts: (1) Barger‘s attorney failed to list her lawsuit against the City in the Statement of Financial Affairs despite the fact that she specifically told him about the suit; (2) Barger informed the trustee about her suit against the City during the creditors’ meeting; and (3) the Bankruptcy Court reopened Barger‘s Chapter 7 case so that the trustee could prosecute the suit against the City. Id.
Barger‘s attempt to reopen the bankruptcy estate to include her discrimination claim hardly casts her in the good light she would like. She only sought reopen the bankruptcy estate after the defendants moved the district court to enter summary judgment against her on judicial estoppel grounds. “Allowing [a debtor] to back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing potential assets only if he is caught concealing them. This so-called remedy would only diminish the necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtor‘s assets.” As such, Barger‘s disclosure upon re-opening the bankruptcy estate deserves no favor.
Id. at 1297 (alteration in original and citation omitted) (quoting Burnes, 291 F.3d at 1288).20
The policy the Supreme Court implemented in New Hampshire and this court implemented in Burnes was the same: the protection of “the integrity of the judicial process” by preventing “the perversion” of that process by parties who would “deliberately chang[e] positions according to the exigencies of the moment.” New Hampshire, 532 U.S. at 749-50, 121 S. Ct. at 1814 (quotation marks omitted). While the policy was the same, the factual contexts of the two cases were as different as night and day. In Burnes, the issue was whether the debtor intentionally concealed the claims he was prosecuting against his employer from the Bankruptcy Court, and if so, whether in prosecuting those same claims in District Court, he intended to make a mockery of the judicial system. The fact that Pemco had established New Hampshire‘s second factor—that Billups had “succeeded in persuading [that] court to accept” his position—was not dispositive. The concealment of his claims against Pemco had already performed its odious service, undermining the orderly administration of justice in his bankruptcy case. The concealment continued to do that until he was caught. In short, to give dispositive weight to New Hampshire‘s second factor would be to hold that judicial
Under our prior-panel-precedent rule, United States v. Puentes-Hurtado, 794 F.3d 1278, 1287 (11th Cir. 2015), we are bound to follow Barger and to disregard Parker‘s holding to the contrary.
New Hampshire‘s third factor is also not dispositive. That factor applies in the New Hampshire scenario but not the Burnes scenario, as is presented in the instant case. Allowing Slater‘s claims to go forward could not—in New Hampshire‘s sense of the words—give Slater an “unfair advantage” or impose on U.S. Steel an “unfair detriment” because U.S. Steel had not been burdened with opposing Slater‘s claims in the Bankruptcy Court. These words apply only in a two-case setting, where the party asserting the doctrine was a party in the earlier proceeding.
In sum, Slater‘s argument that the District Court erred in failing to give these New Hampshire factors appropriate weight, and thus abused its discretion in barring her claims on the judicial estoppel ground, fails.21
Slater argues alternatively that the District Court erred in applying Eleventh Circuit precedent, namely Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), and Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir. 2010). In both of those cases, the Bankruptcy Court had accepted, albeit tacitly, the debtor‘s failure to disclose as property of the bankruptcy estate claims the debtor was litigating in federal district court. That is, in each case, the bankruptcy proceeding had run its course. We find no merit in Slater‘s argument for two reasons.
First, this court‘s precedent in cases involving the non-disclosure in bankruptcy of claims the debtor is simultaneously prosecuting in federal district court does not require, as a condition precedent to the application of judicial estoppel, the termination of the bankruptcy proceedings. Whether the bankruptcy proceeding has ended is not dispositive. The factors that trigger the application of the doctrine are (1) an inconsistent position taken under oath in the Bankruptcy Court, and (2) advancing an inconsistent position in the District Court with the intent to make a mockery of justice.
Second, to condition the invocation of judicial estoppel on what transpires in the bankruptcy case after the debtor‘s failure to list the claim being litigated in the District Court has been discovered would, as the Burnes Court explained, “only
V.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
I concur in the court‘s judgment because the result is dictated by Eleventh Circuit precedent. I write separately because that precedent, the doctrine of judicial estoppel as laid out in Burnes v. Pemco Aeroplex, Inc.1 and Barger v. City of Cartersville,2 was wrongly decided. The consequences of today‘s decision make the problem clear: U.S. Steel is granted a windfall, Slater‘s creditors are deprived of an asset, and the Bankruptcy Court is stripped of its discretion.
Sandra Slater filed a Chapter 7 bankruptcy petition twenty-one months after bringing suit for employment discrimination against her former employer, U.S. Steel.3 Under oath, she failed to list that suit as a contingent asset on her bankruptcy petition. Upon discovery, U.S. Steel moved the District Court to bar the suit on judicial-estoppel grounds. According to U.S. Steel, Slater‘s inconsistent positions would “make a mockery of the judicial system.”4
While U.S. Steel‘s motion was pending, the Bankruptcy Court first learned of Slater‘s nondisclosed suit during a hearing on a related matter.5 The bankruptcy
The District Court then granted summary judgment to U.S. Steel. The District Judge, concluding—correctly—that Burnes and Barger eliminated the Bankruptcy Judge‘s reasoned discretion in such circumstances, found that judicial estoppel barred Slater‘s claim. Judicial estoppel requires the court to consider two factors: “First, it must be shown that the allegedly inconsistent positions were
The results of today‘s decision speak for themselves. U.S. Steel no longer faces a set of potentially meritorious employment-discrimination claims. Judicial estoppel disposes of Slater‘s claims, without examination on the merits; indeed, the doctrine blocks them altogether. U.S. Steel is free and clear from any liability it may have owed to Slater. Conversely, for Slater‘s creditors, there will be no recovery on the claims, which belonged, by operation of law, to the bankruptcy estate the moment Slater filed her bankruptcy petition. And, the Bankruptcy Court, despite expressing no concern about the late-arriving claim, receives no “protection” through the doctrine. Instead, its experience and discretion are disregarded in favor of the District Court‘s judgment.
I.
The Eleventh Circuit‘s judicial-estoppel precedent to be applied by Article III courts in bankruptcy proceedings, which works instead against the structure and purpose of the bankruptcy system, fails to accord the broad deference to the bankruptcy courts that Congress intended. Before explaining why this is so, I begin with an overview of the relevant dynamics present in these proceedings for the those not already familiar.
The federal bankruptcy laws are designed to “give[] . . . the honest but unfortunate debtor . . . a new opportunity in life and a clear field for future effort,
The role of the bankruptcy judge is, of course, to resolve disputes that arise. But the bankruptcy judge‘s time is also often occupied in a broad supervisory manner, generally ensuring that the case is administered in a “just, speedy, and inexpensive” manner.13 “[T]he bankruptcy court is the ultimate custodian of the estate.”14
A bankruptcy trustee18 is appointed to represent the estate and guide the bankruptcy case through the process to its conclusion.19 The trustee is an
The district courts have jurisdiction over bankruptcy cases,21 though the district courts may provide in their local rules that bankruptcy cases be referred to the bankruptcy courts.22 If an order of the Bankruptcy Court is appealed, the District Court sits as an appellate court in reviewing the Bankruptcy Court‘s order.23 The District Court is bound to a clear-error standard for the Bankruptcy Court‘s factual findings and an abuse-of-discretion standard for the Bankruptcy Court‘s discretionary decisions, such as the decision whether to reopen a case.24 Orders resulting from the District Court‘s review may then move through the normal federal appellate process.25
I now turn to the evolution of judicial estoppel, a supposedly equitable doctrine overlaying this intricately designed bankruptcy system, which has
II.
As Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4477 observes, “[T]he number of federal appellate decisions grappling with [the doctrine of judicial estoppel] has grown dramatically.”
The cases tend to cluster around a few salient points, leaving uncertainty in between. Some sense of order can be found by focusing on three major approaches. The narrowest approach precludes inconsistent positions only on a theory akin to equitable estoppel, requiring reliance by a party who would be injured by permitting a change of position. A more open approach, which has become dominant in the federal courts, looks for reliance by an adjudicating tribunal. This approach in turn blends into a still more open-ended approach that, by seeking to prevent a party from “playing fast and loose” with the courts, implies distinctions between seemly and unseemly adversary behavior. All of these approaches must come to terms with the well-entrenched principle that modern procedure welcomes inconsistent positions in the course of a single litigation.27
Each of these approaches is solicitous of one or more discrete interests. The “narrowest approach” protects a party who has relied on its adversary‘s former position from the injury it would suffer if the court allowed the adversary to abandon its former position and pursue a contrary position. This approach also protects the court‘s integrity, which may be called into question if it issues a
In the remainder of Part II., I trace the evolution of judicial estoppel in this circuit. In its first iteration, the doctrine required that the inconsistent positions at issue be taken under oath in separate judicial proceedings. To invoke the doctrine, a party had to show that its adversary was advancing a position in the District Court that was inconsistent with a position it took in an earlier judicial proceeding.
Over time, this formulation of the doctrine changed. The requirement of an oath in both the prior proceeding and the District Court was modified to exclude the oath in the District Court.29 Moreover, the “prior proceeding” requirement was also changed such that the “prior” proceeding no longer needs to come first in time. If, for example, the adversary‘s position under oath is that the claim he is litigating in the District Court does not exist, the District Court must dismiss the claim on the merits. That is, the doctrine assumes that the position stated under oath is true, and that the position in the District Court is therefore false. The District Court therefore invokes the doctrine and estops the adversary‘s position to vindicate the integrity of the prior proceeding.
The doctrine of judicial estoppel first appeared in Eleventh Circuit precedent31 in 1953, in Livesay Industries, Inc. v. Livesay Window Co.32 For our purposes, however, the doctrine expressed in Burnes and Barger sprouts from a 1973 decision, Johnson Service Co. v. Transamerica Insurance Co.33 In Johnson Service, the party asserting the doctrine was not a party in the prior proceeding—the Burnes scenario.34 Sitting in diversity and therefore bound to apply the
“[t]he doctrine of judicial estoppel is not strictly speaking estoppel at all but arises from positive rules of procedure based on justice and sound public policy. It is to be distinguished from equitable estoppel based on inconsistency in judicial proceedings because the elements of reliance and injury essential to equitable estoppel need not be present. Under the doctrine of judicial estoppel . . . a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made. It . . . is not necessary that the party invoking this doctrine have been a party to the former proceeding.”36
The Johnson Service Court then explained that,
Judicial estoppel is a technical rule designed to meet needs of broad public policy. It is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings. Because the rule looks toward cold manipulation and not an unthinking or confused blunder, it has never been applied where plaintiff‘s assertions were based on . . . inadvertence[] or mistake.37
Thus, Wright, Miller & Cooper‘s “still more open-ended approach” gained its first foothold.
Having already been applied when the party asserting judicial estoppel was not a party to the prior proceeding, the next appearance of the doctrine involved the
In 1988, this court, in Chrysler Credit Corp. v. Rebhan,43 considered for the first time whether to recognize judicial estoppel as a federal rule and thus part of the law of the Eleventh Circuit. Chrysler Credit presented the New Hampshire scenario and involved the application of the
Three years later, this court once again applied the doctrine of judicial estoppel as federal law in a case presenting the New Hampshire scenario. In McKinnon v. Blue Cross & Blue Shield of Alabama,50 we adopted the state-law
The District Court granted the School Board summary judgment on the ground that Talavera was “judicially estopped from claiming she was a ‘qualified’ individual with a disability under the ADA, having certified to the SSA that she was totally disabled.” Id. Applying the divergent-sworn-positions-and-mockery-of-justice rule, we reversed the District Court‘s judgment and remanded the case for further proceedings because the statements Talavera made in support of her SSA application “d[id] not rule out the possibility that she could perform the essential functions of her job with reasonable accommodation.” Id. at 1221. We said, in the words of McKinnon, “Judicial estoppel ‘is applied to the calculated assertion of divergent sworn positions. The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings.‘” Talavera, 129 F.3d at 1217 (quoting McKinnon, 935 F.2d at 1192).
Without elaboration, the Burnes and Barger Courts would subsequently conclude, by implication and in the context here, that the two-element statement amounted to a proper interpretation of the divergent-sworn-positions-and-mockery-
Salomon Smith Barney had taken in the Florida District Court of Appeal during an earlier proceeding was inconsistent with the position it was asserting in the District Court and therefore should be estopped. Salomon, 260 F.3d at 1308; ante at 21, n.17. Salomon presumably cites the former Fifth Circuit‘s opinion in Johnson Service for the “prior proceeding” language. Id. Johnson Service also used an apparently equivalent term, “a former proceeding,” in explaining that “[u]nder the doctrine of judicial estoppel . . . a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made.” Johnson Serv., 485 F.2d at 174 (emphasis added) (quotation marks omitted).
the “allegedly inconsistent positions were made under oath in a prior proceeding” and whether such inconsistencies were “calculated to make a mockery of the judicial system.” Campa, 459 F.3d at 1152 (footnotes omitted) (quoting Burnes, 291 F.3d at 1285). We then held that judicial estoppel was inapplicable because Ramirez was not a related proceeding, but rather an employment discrimination lawsuit. Moreover, the position that the government took in Ramirez occurred subsequent to—not before—its position in this case. The government filed its motion for change of venue in Ramirez on June 25, 2002, more than one year after the defendants were convicted. Therefore, the defendants’ argument that the government should have been estopped from opposing its change of venue motions in a prior proceeding is chronologically unsound, and the court did not abuse its discretion in denying the defendants’ motion for new trial based on newly discovered evidence. Id. (emphasis added) (footnotes omitted). The fact that Burnes and Barger, which the court did not cite, treated a subsequent proceeding as “a prior proceeding“—because the subsequent proceeding was the only proceeding in which a position was taken under oath—was not mentioned. Given the court‘s silence on the point and the Supreme Court‘s statements in New Hampshire that “Courts have observed that ‘[t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,‘” and that it was “not establish[ing] inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel,” New Hampshire, 532 U.S. at 750-51, 121 S. Ct. at 1815 (alteration in original) (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982)), I do not view Campa as having overruled by implication any aspect of the holdings of Burnes or Barger. Rather Campa confirms that the Burnes-Barger formulation of judicial estoppel extends beyond the bankruptcy context.
C.
1.
Judicial estoppel‘s next doctrinal development, in Burnes, occurred when this court changed its focus from protecting the integrity of the judicial system to punishing debtors who do not fully disclose their assets. Because Burnes followed directly on the heels of the Supreme Court‘s decision in New Hampshire v. Maine,63 the court first had to consider that case‘s impact on the Circuit‘s own precedent. In New Hampshire, the Supreme Court identified three factors that guided its judicial-estoppel analysis—the degree to which the two statements at issue were inconsistent; whether a judicial tribunal accepted the earlier position so that it would appear, if a later court adopts a contrary position, that either court had been misled; and whether the party advancing the inconsistent position would
In the Eleventh Circuit, courts consider two factors in the application of judicial estoppel to a particular case. “First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.”67
The court then considered whether basing the application of judicial estoppel on these two factors would comport with the Supreme Court‘s “instructions” in New Hampshire, and concluded that the two factors “provide courts with sufficient flexibility in determining the applicability of the doctrine of judicial estoppel based on the facts of a particular case.”68
Addressing the first factor, the Burnes Court focused solely on the debtor‘s position before the Bankruptcy Court,69 stating that there was “no
Appearing to equate the phrase “calculated to make a mockery of the judicial system” with the phrase “intentional manipulation” of the system, the court observed that “several circuits, in considering the particular issue of judicial estoppel and the omission of assets in a bankruptcy case, have concluded that deliberate or intentional manipulation can be inferred from the record.”71 Then, citing decisions of other circuits, the court reasoned that whether an intent to manipulate the system can be inferred turns on whether the debtor, at the time he breached the duty to disclose the claim, either lacked knowledge of the claim or
took under oath in the Bankruptcy Court and thus established the first element of the two-element statement. Id. at 1286.
The court concluded that the record before it contained “sufficient evidence from which to infer intentional manipulation by [the debtor]”74 as a matter of law, and thus affirmed the District Court‘s grant of summary judgment to the defendant. The debtor obviously knew about the Title VII litigation pending against the
As to motive, it is undisputed that [the debtor] stood to gain an advantage by concealing the claims from the bankruptcy court. It is unlikely he would have received the benefit of a conversion to Chapter 7 followed by a no asset, complete discharge had his creditors, the trustee, or the bankruptcy court known of a lawsuit claiming millions of dollars in damages.75
That the debtor‘s failure to disclose the claim could be remedied if his Chapter 7 case were reopened was, in the court‘s view, irrelevant because
[t]he success of our bankruptcy laws requires a debtor‘s full and honest disclosure. Allowing [the debtor] to back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing potential assets only if he is caught concealing them. This so-called remedy would only diminish the necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtors’ assets.76
Shifting the focus of the judicial-estoppel inquiry from preserving the integrity of the judicial system to punishing the debtor for failing to fully disclose his assets, the Burnes Court set the stage for the doctrine‘s final extension in Barger.
a.
Barger v. City of Cartersville77 further weakened the intent requirement by reinforcing Burnes‘s conclusion that it would diminish debtors’ “necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtors’ assets” if a noncompliant debtor were “allow[ed] to back up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary.”78 In Barger, the debtor, Donna Barger, sued the City of Cartersville after a demotion, seeking reinstatement.79 Shortly thereafter, she also sought Chapter 7 bankruptcy relief.80 While her bankruptcy estate was being administered, she amended her complaint against the City to seek compensatory and punitive damages in addition to reinstatement.81 Because she was now seeking damages, she was required to amend her bankruptcy filings but failed to do so.82
“Barger‘s claim for injunctive relief (i.e. her request for reinstatement).” See Barger, 348 F.3d at 1297.
She truthfully and voluntarily disclosed the existence of the Litigation to the Trustee, the person responsible for pursuing it, whether or not it had been scheduled. Her counsel‘s failure to amend her schedules could not, and did not, gain any advantage for her and, indeed, that failure was actually adverse to her interests. Her counsel has admitted that this failure was inadvertent oversight and there is nothing in the record or this Court‘s experience that would indicate otherwise.
The Federal Rules of Bankruptcy Procedure are to be construed “to secure the just, speedy, and inexpensive determination of every case and proceeding.”
FED. R. BANKR. P. 1001 . It would not serve the objectives of those Rules to hold that, in these circumstances, Debtor‘s failure to amend schedules to list a claim that had been voluntarily disclosed to the Chapter 7 Trustee at the § 341(a) meeting of creditors should preclude reopening of the case to correct that failure. To the contrary, because the voluntary disclosure to the trustee served the same substantive purpose as an amendment, because Debtor did not and could not benefit by the failure to amend, and because the failure is due to inadvertence, the just determination of this case requires reopening so that the claim can be administered.93
It [would be] incongruous to punish Debtor‘s creditors and impair their prospects for a potential recovery in the bankruptcy case in order to improve the City‘s judicial estoppel argument in District Court. In In re Daniel, 205 B.R. 346 (Bankr. N.D. Ga. 1997) (Murphy, J.), the court observed that reopening a bankruptcy case in order for a debtor to disclose an asset is appropriate even if it deprives a defendant of a judicial estoppel defense.99
Moreover, “[a]ny advantage which Debtor may have gained by omitting the asset from her schedules is eliminated by reopening, amending the schedules and allowing the Chapter 7 Trustee to administer the asset.”100 The court concluded that “the interests of Debtor‘s creditors override any detriment that the City may sustain as a result of reopening the case and that the Debtor‘s conduct does not preclude such reopening.”101
b.
On appeal, this court applied the two-element statement in determining whether the City had established the defense of judicial estoppel.104 This meant the City‘s task was two-fold: “First, . . . [Barger]‘s allegedly inconsistent positions must have been ‘made under oath in a prior proceeding.’ Second, the
The City, of course, could show that the claims Barger was asserting in the District Court were inconsistent with the claims she had presented to the Bankruptcy Court and that her Statement of Financial Affairs to the Bankruptcy Court was, by its very nature, under oath.106
Having satisfied the first prong, the City still had to show that Barger filed the false statement with the intent to manipulate the judicial system:
[T]he issue here is intent. For purposes of judicial estoppel, intent is a purposeful contradiction—not simple error or inadvertence. “[D]eliberate or intentional manipulation can be inferred from the record,” where the debtor has knowledge of the undisclosed claims and has motive for concealment.107
Because the court accepted that Barger‘s intent to manipulate the judicial system was inferable as a matter of law, the City was able to make this showing and thus satisfy both prongs of the test.108 The court noted that Barger had knowledge of the claims she was pursuing against the City at the time she failed to disclose the claims, and found that she had a motive for concealing them.109
The court affirmed the District Court‘s application of judicial estoppel because the City had satisfied the two-element statement‘s requirements.
3.
Though the doctrine of judicial estoppel as expressed by Burnes and Barger continues to be binding precedent in this circuit,111 a subsequent panel reached a directly contrary decision in Parker v. Wendy‘s International, Inc., 365 F.3d 1268 (11th Cir. 2004),112 a case presenting a set of facts materially indistinguishable from those in Barger.113 The Parker Court concluded that “[t]he correct analysis here compels the conclusion that judicial estoppel should not be applied at all” to bar the trustee of the
Notably, though the Parker panel cited each New Hampshire, Burnes, and Barger multiple times, it never explained why Barger did not dictate the result.116 Many courts and commentators have cited Parker favorably, often mistakenly referring to Parker as the Eleventh Circuit‘s controlling statement of judicial estoppel.117 Indeed, the Fifth Circuit, sitting en banc, relied extensively on Parker‘s logic to overturn a panel decision applying judicial estoppel to bar an innocent trustee from pursuing an undisclosed claim.118 As the decision in Parker demonstrates, the current state of our judicial-estoppel jurisprudence is both
D.
In sum then, trying to reconcile this court‘s decisions applying judicial estoppel as a uniform doctrine proves problematic, to say the least. The vast majority of the decisions discussed above fall in the category Wright, Miller & Cooper labels the “still more open-ended approach.”120 And with minimal exception, all focus on and penalize the same “unseemly adversarial behavior“—taking false positions under oath.121
Judicial estoppel first became this court‘s law in Chrysler Credit, which involved statements under oath in two forums, a North Carolina court and the Bankruptcy Court, and held that the doctrine‘s purpose was to prevent parties from “attempt[ing] to manipulate the court system through the calculated assertion of
In McKinnon, the court adhered to the Chrysler Credit formulation of the doctrine and said, in effect, that in attempting to manipulate the court system through the assertion of divergent sworn positions, a party was “making a mockery of justice by inconsistent pleadings.”124 In Salomon, a diversity case,125 after reiterating verbatim the divergent-sworn-positions-and-mockery-of-justice rule, the court stated that: “[t]his circuit‘s approach contemplates two elements. First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system,”126 the two-element statement. Because the court was applying a state-law version of judicial estoppel, the added sentence had no effect on the federal version of the doctrine this court had adopted in Chrysler Credit and applied foursquare in McKinnon.
The Burnes Court would have realized, of course, that there is a difference between the requirements of the divergent-sworn-positions-and-mockery-of-justice rule and the two-element statement in terms of what a party must prove to establish the judicial-estoppel defense and that it was bound to apply the divergent-sworn-positions-and-mockery-of-justice rule, if applicable. I assume that the court considered the divergent-sworn-positions-and-mockery-of-justice rule inapplicable in the sense that Chrysler Credit (which McKinnon followed) set an example by formulating a version of judicial estoppel appropriate for the specific factual situation presented in that case.128 Chrysler Credit gave the court leeway to do the same thing, to fashion a rule for the specific situation at hand.129 Moreover, as the
I posit that this is what this court did first in City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 649 F.3d 1259 (11th Cir. 2011), rev‘d on other grounds sub nom. Lozman v. City of Riviera Beach, 568 U.S. 115, 133 S. Ct. 735, 184 L. Ed. 2d 604 (2013), and then in Tampa Bay Water v. HDR Eng‘g, Inc., 731 F.3d 1171 (11th Cir. 2013); it formulated a version of judicial estoppel appropriate for the circumstances at hand, although in neither case did it invoke doctrine. Riviera Beach was an in rem proceeding in admiralty. Riviera Beach, 649 F.3d at 1262. The appellant, Lozman, argued that Riviera Beach was judicially estopped from bringing a maritime claim against the defendant vessel because its position was allegedly inconsistent with its position (neither of which was under oath) in an earlier lawsuit between the same parties. Id. at 1265. In rejecting the estoppel argument, the court cited McKinnon, with the exception of the “divergent sworn positions” element of the divergent-sworn-positions-and-mockery-of-justice rule, id. at 1275, and Zedner v. United States, 547 U.S. 489, 126 S. Ct. 1976, 164 L. Ed. 2d 749 (2006), which adhered to the elements of the doctrine New Hampshire invoked:
Judicial estoppel is “designed to prevent parties from making a mockery of justice by inconsistent pleadings.” McKinnon[, 935 F.2d at 1192]. While judicial estoppel “cannot be reduced to a precise formula or test,” Zedner[, 547 U.S. at 504, 126 S. Ct. at 1976], three factors typically inform the inquiry: (1) whether there is a clear inconsistency between the earlier position and the later position; (2) a party‘s success in convincing a court of the earlier position, so that judicial acceptance of the inconsistent later position would create the perception that either the earlier or later court was misled; and (3) whether the inconsistent later position would unfairly prejudice the opposing party if not estopped.
Riviera Beach, 649 F.3d at 1273. In Tampa Bay Water, Tampa Bay argued that HDR Engineering was estopped because of an inconsistent position it had taken in an earlier phase of the same case (not under oath). 731 F.3d at 1177. The court did not apply the doctrine because the positions were not inconsistent. Id. at 1182. Though it did not cite Riviera Beach for the version of the doctrine it considered, the court repeated Riviera Beach‘s version verbatim. The Tampa Bay Water Court also cited this Circuit‘s earlier recitation of the three New Hampshire elements (which Zedner reiterated) in Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010), but not the Burnes formulation, which the Robinson Court actually applied in these words:
The seminal case in the Eleventh Circuit on the theory of judicial estoppel is Burnes . . .. Incorporating the standards enumerated by the Supreme Court, Burnes outlined two primary factors for establishing the bar of judicial estoppel. “First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.” Burnes recognized that these factors are not exhaustive; rather, courts must always give due consideration to the circumstances of the particular case.
See id. at 1273 (citation omitted) (quoting Burnes, 291 F.3d at 1285). Neither Riviera Beach nor Tampa Bay Water has been cited in any of our reported opinions in cases presenting the Burnes–Barger context and the situation here.
So, the Burnes Court formulated a different version of judicial estoppel, one appropriate for the situation before it. Judicial estoppel can apply even though the debtor‘s inconsistent position in the District Court is not under oath. This no doubt explains why the Burnes opinion does not identify the position the debtor took under oath in that court.131 All that matters is that the debtor got caught prosecuting a lawsuit he had concealed from the Bankruptcy Court. The Barger Court thereafter applied Burnes‘s formulation of the doctrine to estop a bankruptcy trustee who had been substituted as plaintiff for the debtor, who lacked standing to sue.132
Under Barger, a trustee will be able to avoid summary judgment only if, on the evidence presented,133 it could reasonably be inferred that at the time the debtor failed to disclose the claim and the litigation to the Bankruptcy Court, the debtor
As a practical matter, the evidence will yield neither inference.135 Moreover, that the trustee lacked knowledge of the debtor‘s nondisclosure or the nondisclosure was the debtor‘s lawyer‘s fault is irrelevant.136 In truth, to say that a trustee could avoid summary judgment if he established that the debtor‘s nondisclosure was inadvertent or a mistake is to say that the trustee could not establish either fact. The words inadvertent and mistake are meaningless.
Given this reality, a bankruptcy trustee has two options. The first assumes that the value of the debtor‘s previously undisclosed claim is such that it would be prudent to expend the funds necessary to seek en banc review of the Barger precedent. Two alternative routes to the en banc court would be available. The first would begin in the District Court. The trustee would intervene in the case the debtor brought in the District Court and suffer an adverse judgment there and in
The second option, which the trustee would take if the value of the claim did not counsel taking the first option, would be to abandon the claim pursuant to
In sum, as long as the Barger decision continues to be binding precedent, the trustee of the bankruptcy estate will be unable to step in for the debtor and prosecute the claim he tried to conceal from the Bankruptcy Court. By operation
Allowing the first of these two outcomes by continuing to apply a precedent that has long been detached from its moorings in equity only guarantees the very mockery of justice the doctrine of judicial estoppel was designed to avoid.
III.
In Part III., having discussed the doctrine‘s historical underpinnings at some length, I begin unpacking the effect of the judicial estoppel mandated by Burnes v. Pemco Aeroplex, Inc.142 and Barger v. City of Cartersville143 by explaining how their continued application fails both to preserve the integrity of the judicial system and to punish and deter oath-breaking. Then, I turn to the impropriety of fashioning such an equitable remedy in the face of the perfectly adequate range of criminal and civil legal remedies designed by Congress to apply across proceedings in the bankruptcy system, which are in clear tension with the invocation of judicial estoppel. I conclude my analysis with the observation that this state of affairs, which cannot be justified as an exercise of this or any court‘s
A.
1.
Before explaining why applying judicial estoppel as required by Burnes and Barger fails to achieve that doctrine‘s purpose, it is first necessary to flush out exactly what that purpose is and what it is not. Judicial estoppel, properly understood, is concerned with the “integrity of the judicial system, not the litigants.”144 It focuses on the “judicial process”145—specifically, the intentional use of “inconsistent positions”146 or “inconsistent pleadings”147 to “manipulate the judicial system”148 or to “make a mockery of the judicial system.”149 What might constitute “a mockery of justice” is elusive. Our cases don‘t define the phrase.150 I assume that the intentional manipulation of a judicial system would constitute a mockery of justice.
Burnes and Barger involved two judicial systems,153 the District Court‘s and the Bankruptcy Court‘s.154 Did the District Court apply the doctrine of judicial estoppel and bar the claims in those cases to protect the integrity of both judicial systems or only one? I posit that the District Court applied the doctrine to protect
The opinions in Burnes and Barger all but say this explicitly. The opinions emphasize at length the need for debtors to disclose their assets and potential assets to the Bankruptcy Court as required by
[t]he duty to disclose is a continuing one that does not end once the forms are submitted to the bankruptcy court; rather, a debtor must amend his financial statements if circumstances change. Full and honest disclosure in a bankruptcy case is crucial to the effective functioning of the federal bankruptcy system. For example, creditors rely on a debtor‘s disclosure statements in determining whether to contest or consent to a no asset discharge. Bankruptcy courts also rely on the accuracy of the disclosure statements when considering
whether to approve a no asset discharge. Accordingly, the importance of full and honest disclosure cannot be overstated.157
The Burnes and Barger debtors failed to disclose the claims they were pursuing, so the dispositive question became whether they intended to mislead the Bankruptcy Court. In both cases, the District Court found the intent to mislead as a matter of law and, applying the doctrine, granted summary judgment.158 In affirming the judgments, this court made it clear that the invocation of judicial estoppel was necessary to protect the bankruptcy system, not the processing of litigation in the District Court.159 Indeed, the opinions in Burnes and Barger have nothing to say about the judicial process in the District Court except to state, or imply, that the debtor took an inconsistent position in that court.160 The inconsistent position made false the debtor‘s position in the Bankruptcy Court and thus set the stage for judicial estoppel to perform its service—the protection of the integrity of the bankruptcy system.
The District Court does not need protection from a litigant‘s assertion of an inconsistent claim (or defense), even where, in another proceeding, the litigant denied under oath the existence of the claim or defense. In fact, the assertion of inconsistent claims (or defenses) is commonplace in district court litigation. The
The Burnes and Barger opinions contain no mention of Rule 8(d)(3), much less an explain why it is inoperative when the previous statement was under oath, but operative when the previous statement was not under oath. I fail to comprehend why an oath should make a difference.
Prior inconsistent statements made under oath are ubiquitous in litigation regardless of the forum in which they are made. They occur in all sorts of settings—on deposition or in sworn answers to interrogatories in the case being litigated or in previous proceedings. Prior inconsistent statements are the stuff of impeachment on cross-examination. If made by a party, the party‘s adversary may introduce them into evidence as admissions.162
Striking a meritorious claim that has been pled as permitted by Rule 8—because the claimant previously swore that the claim did not exist—in order to
In affirming the dismissal of the trustee‘s claims, the Barger Court acknowledged that the trustee was faultless,164 and thus beyond sanction. The court also knew that the creditors would be bearing the loss of the claims’ value, which the District Court‘s judgment would, by operation of law, transfer to the defendant as a pure windfall. The rationale for such a disposition is the one the
The Bankruptcy Court in Barger read Burnes as using judicial estoppel as a means of punishing oath-breaking. In overruling the City‘s objection to the debtor‘s motion to reopen her Chapter 7 case, the court addressed the City‘s Burnes-based argument—that the debtor had to pay a penalty for concealing her claims—thusly:
If there are adverse consequences that a debtor should suffer due to omission of a scheduled claim, there are punishments other than judicial estoppel that can be directed at a debtor, rather than the estate and creditors, such as sanctions under
Fed. R. Bankr. P. 9011 , revocation of the discharge, or denial of any exemption in the claim and its proceeds.166
Burnes and Barger imply that judicial estoppel‘s service is to stimulate the full disclosure, or deter the concealment, of debtors’ assets, not to punish the debtor. I agree with the Bankruptcy Court. The doctrine‘s service is punishment.
Having described the subtle yet crucial shift in the motivating rationale behind judicial estoppel that occurred in Burnes and Barger, it should not be hard to understand why borrowing an equitable remedy specially fashioned for the preservation of the integrity of the judicial system to punish inconsistent pleadings will fail to achieve either the former or the latter. Debtors will be prompted to make full disclosure of their assets, instead of hiding them, when they realize, on reflection, that if they are caught hiding them, they will be penalized. The debtors in Burnes and Barger were caught, but were they penalized? They gave up property that wasn‘t theirs. But that was the extent of it.167
Standing alone, relieving a thief of stolen property is unlikely to deter theft. If anything, it would encourage more theft. Applying the equitable remedy of judicial estoppel—to the exclusion of the extensive, but apparently inadequate, range of criminal and civil legal remedies for oath-breaking—would guarantee that all that would happen to debtors who get caught prosecuting undisclosed claims would be that those claims get dismissed. The only downside for the debtor, therefore, is the psychic cost to his conscience and the expense of bringing suit.
B.
Not only is the particular equitable remedy Burnes and Barger created ineffective, but resorting to an equitable remedy to punish oath-breaking debtors itself is inappropriate, given the extensive range of perfectly adequate criminal and civil legal remedies with which the logic and effect of judicial estoppel are at odds. I accept for the moment that the doctrine‘s objective is not to punish the debtor but to motivate debtors to make full disclosure of their assets168 and turn to the effect Barger‘s pursuit of that objective has on the Bankruptcy Court‘s application of the rules and statutory provisions, criminal as well as civil, Congress has set in place to achieve it.169 I begin, in Part III.B.1., with Rule 1009 of the Federal Rules of
1.
The full and complete scheduling of a debtor‘s assets as required by the Bankruptcy Code does not always happen. Omissions frequently occur in the Statement of Financial Affairs and Schedules of Assets and Liabilities a debtor files with his bankruptcy petition,171 and they occur when, as in Burnes, the debtor amends his schedules as the bankruptcy estate is being administered.172 The Supreme Court, in proposing Rule 1009 to Congress, and Congress, in adopting it,173 realized this, so Rule 1009 provides that “[a] voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time
Sometimes a debtor‘s failure to disclose an asset of the estate is not discovered until after the case is closed. Since the asset had never been scheduled and the bankruptcy trustee, obviously unaware of the asset, had not abandoned it, the asset is still property of the bankruptcy estate.176 The asset is in limbo. The
This is what happened in Barger. Barger had not scheduled her claims for damages so she moved the Bankruptcy Court to reopen her Chapter 7 case to list them.180 The City objected, citing Burnes.181 If the City‘s objection to reopening Barger‘s case were an attempt to exercise control over Barger‘s claims, it could constitute a violation of the stay that had automatically been put in place by 11
The court reopened the case because reopening is ordinarily granted for the benefit of the creditors—to enable the administration of assets of the estate that were not scheduled or abandoned by the trustee.185 In the matter before it, the court said that “it [would be] incongruous to punish [Barger‘s] creditors and impair their prospects for a potential recovery ... in order to improve the City‘s judicial estoppel argument in the District Court.”186 It therefore granted the debtor‘s
2.
Barger has obstructed the Bankruptcy Court‘s ability to use the tools Congress has provided to motivate debtor compliance with the disclosure requirements of
Barger nevertheless appears to be a de novo review of the Bankruptcy Court‘s decision to reopen. It also gives the appearance that this court was exercising its supervisory power190 over the Bankruptcy Court, instructing the
The District Court, following Burnes, estopped the estate‘s claims for damages because Barger‘s failure to schedule them after her complaint had been amended to seek damages against the City was neither inadvertent nor a mistake.191 On appeal, the bankruptcy trustee argued that the Bankruptcy Court‘s decision to reopen should be reviewed under the abuse-of-discretion standard and therefore affirmed unless the facts supporting the decision were clearly erroneous. Treating the case as if it were an appeal under
I translate the affirmance into a statement that the Bankruptcy Court abused its discretion in reopening Barger‘s case because it based its decision on an error of law. This court held that the Bankruptcy Court erred in applying Burnes‘s test for determining whether the debtor‘s failure to amend her schedules amounted to a calculated attempt to manipulate the judicial system. That test, again, is whether the nondisclosure was inadvertent or a mistake. If Barger was unaware of the lawsuit or had no motive for pursuing it, the nondisclosure would be inadvertent and thus could not be considered a calculated attempt to manipulate the judicial system. But she failed the test: Barger was plainly aware of the lawsuit and had a
That said, I sense that the Barger Court did not view its decision as a review of the Bankruptcy Court‘s decision to reopen. If it did, the court would have discussed § 350 and Rule 1009 and the policies and the Congressional intent they implement. But neither § 350 nor Rule 1009 was mentioned. They didn‘t have to be. All that mattered was that Barger failed to amend her schedules to disclose the claims in litigation. The failure constituted a statement, under penalty of perjury, that she had no claims for damages pending against the City, a statement that Barger knew was false. Because it was, Barger, in making it, intended to manipulate the bankruptcy system.
However one views the Barger Court‘s
If a case remains open and the debtor amends his schedules to reveal the nondisclosed claim, the trustee will similarly be faced with judicial estoppel. Even if suit has not been filed, if the debtor‘s claim is cognizable (and ready for suit) and the defendant potentially liable learns of the claim and informs the bankruptcy trustee, the defendant will have set the stage for invoking judicial estoppel to bar the trustee‘s appearance in the District Court or before the Bankruptcy Court in an adversary proceeding.
Moreover, the secondary tools Congress has provided to enhance full disclosure of assets are also rendered practically inoperative.193 The In re Barger Court opined that those tools, when used, are fully capable of deterring debtors from concealing their assets and that any deterrence judicial estoppel might provide would be problematic at best. Moreover, a full weighing of the equities—
3.
In addition to rendering all but inoperative the tools Congress has provided to enhance the full disclosure of a debtor‘s assets, Barger has created a serious dilemma for a Bankruptcy Court presented, as was the case in Barger, with a debtor‘s motion to reopen in order to schedule an unscheduled claim after the District Court has dismissed the claim because the debtor lacked standing to prosecute it. The Bankruptcy Court has two choices. It can heed the dictates of Barger and sustain the objection to reopening. Or it can disregard the dictates of Barger and grant the debtor‘s motion to reopen. I consider in order the consequences that result from the exercise of choices.
An immediate consequence of denying reopening is that the court may have sanctioned the violation of the automatic stay.194 How? The court has placed its imprimatur on an “act[, i.e., the objection to reopening,] to exercise control over
Because the claim is in limbo, the objecting party, who obtained the ruling he sought, has received a windfall. The windfall is an indefinite postponement of the reopening of the debtor‘s bankruptcy case; following reopening it might be sued by the trustee or named as a respondent in an adversary proceeding. That is not likely to occur unless the claim is very valuable and the creditors have gone hence without day.
C.
Despite this court‘s assertions to the contrary,199 the supposedly equitable doctrine of judicial estoppel as formulated in Burnes and applied in Barger—supposedly a doctrine of inconsistent pleadings—is not a doctrine of inconsistent pleadings. Nor is it an equitable doctrine. Instead, it is a quasi-criminal sanction—created by this court and masked as judicial estoppel—to punish debtors who make false statements under oath about the existence of actionable claims they are prosecuting in the District Court. The application of this doctrine is akin to abuse
1.
The doctrine of judicial estoppel, as formulated first in McKinnon v. Blue Cross & Blue Shield of Alabama202 and later in New Hampshire v. Maine,203 focuses on the second of the litigant‘s two inconsistent pleadings or positions. The court strikes the second position, the one immediately before it, because the party is trifling or playing “fast and loose” with the court.204 The Burnes-Barger doctrine focuses on the litigant‘s position in the Bankruptcy Court, whether or not
The position the litigant is pursuing in the District Court is a prepetition claim. It existed before he petitioned the Bankruptcy Court for relief. If he files suit before repairing to the Bankruptcy Court, that is his first position; he has a claim for damages. If he then files for bankruptcy and denies the existence of the claim, that is his second position; he has no claim for damages. Under the doctrine as formulated in McKinnon, the second position is rejected. Under the Burnes-Barger doctrine, however, the first position is rejected.
If the litigant files for bankruptcy first and schedules no claim (because it does not then exist), and then files suit (because it does exist at some later point), the question becomes whether the claim was cognizable205 when he filed for bankruptcy or became cognizable afterwards. If the claim became cognizable afterwards, his first bankruptcy position—that the claim does not exist—was true. Once the claim became cognizable and he filed suit, though, the litigant‘s first position became false because he did not update it, by amending his bankruptcy schedules, the moment the claim became cognizable. The litigant‘s failure to
amend itself becomes his second position and is accepted by the court while his first position is rejected as false.
In sum, it doesn‘t matter which of the two inconsistent positions is the “second” position, that is, the one the divergent-sworn-positions-and-mockery-of-justice rule would reject, because the Burnes–Barger doctrine is not concerned with inconsistent pleadings. All that matters is that the debtor falsified his bankruptcy position under oath, and that cannot be tolerated.
2.
The Burnes–Barger doctrine is not an equitable doctrine because its application produces at-least-inequitable results, if not manifestly unjust ones. A debtor deprives his bankruptcy estate of an asset by concealing it. Then the District Court, acting as a court of equity, furthers the deprivation by giving the asset to the defendant, who owes the claim‘s value to the bankruptcy estate, as a pure windfall. The estate‘s creditors, who are totally innocent, provide the windfall. The explicit rationale for doing this is that the deprivation deters future debtors from concealing assets of the bankruptcy estate. The implicit rationale is
All of this aside, I will assume that the Burnes–Barger doctrine is indeed an equitable doctrine and examine it in the light of the traditional maxims of equity.207 I start with the parties whose interests the doctrine implicates. There is the party asserting the doctrine, the defendant. The defendant simply wants to avoid liability by having the estate‘s claim rejected. The defendant‘s role is that of an informant. It informs the court that the debtor has lied under oath in the Bankruptcy Court in failing to disclose the litigation at hand. Anyone aware of the debtor‘s bankruptcy proceedings could perform the same service. The defendant, therefore, is simply not a party for purposes of weighing the equities.
The Bankruptcy Court, in contrast, is a party because the integrity of its processes and its reputation for competency are implicated. Likewise, the trustee is a party because, as part of his fiduciary duties, he must marshal and administer
The District Court is also a party, and it also has at stake its integrity. Inconsistent pleadings, however, whether or not under oath, are of no concern.
Additionally, applying judicial estoppel in the circumstances depicted in Barger and in the case at hand necessarily precludes the bankruptcy courts from exercising the case-specific discretion that Congress intended. I focus on the situation in Barger because the Bankruptcy Court‘s interest in that case is a matter of record, as discussed in the In re Barger Court‘s findings of fact and conclusions of law pursuant to
The District Court in Barger nevertheless estopped the trustee‘s claims to punish Barger for failing to amend her schedules and list her claims against the City. But the Bankruptcy Court had already considered the matter of punishment. It was well aware of the sanctions the law provides—the criminal law and the bankruptcy law—and concluded that none applied. If the court had “reasonable grounds for believing” that Barger had committed perjury, it would have reported the matter to the U.S. Attorney, as required by
In the end, the parties with the most at stake, the Bankruptcy Court and the creditors, ask the District Court to withhold the judicial-estoppel remedy. Rather than make them whole, it will cause them irreparable harm. In applying the doctrine notwithstanding their request and against the clear thrust of governing law, the District Court undermines its own integrity in the eyes of the public and implies that the Bankruptcy Court is either unwilling or incapable of overseeing debtor compliance with the law.
The only solution to this unfortunate predicament is the en banc court.
† This visual aid should be read as follows. The arrows show that the language in the case at the tail of the arrow was adopted in the case at the head of the arrow. For example, Johnson Service‘s “calculated assertion of divergent sworn positions” language was adopted in Chrysler Credit, indicating that two oaths were required for the application of judicial estoppel. Similarly, Johnson Service‘s “made under oath in a prior proceeding” language was adopted in Salomon, and McKinnon‘s inheritance of the “calculated assertion of divergent sworn positions” language was adopted in Salomon, making it unclear whether one or two oaths were required. The cases proceed in roughly chronological order from the top-left corner to the bottom-right corner. The text inside each case box indicates whether there was federal-question or diversity jurisdiction in the case, whether it cited the language for one oath or for two oaths, and whether the case presented either a Burnes or a New Hampshire scenario. See note 1 of the Timeline of Judicial Estoppel Cases in the Eleventh Circuit for a brief explanation of these scenarios.
Timeline of Judicial Estoppel Cases in the Eleventh Circuit
| Case name | Citation | Date | Jurisdiction | Burnes or NH?† | One oath or two?‡ |
|---|---|---|---|---|---|
| Johnson Serv. Co. v. Transamerica Ins. Co. | 485 F.2d 164 | 1973 | Diversity | Burnes | Either |
| Am. Nat‘l Bank of Jacksonville v. Fed. Deposit Ins. Corp. | 710 F.2d 1528 | 1983 | Diversity | NH | Two |
| Chrysler Credit Corp. v. Rebhan | 842 F.2d 1257 | 1988 | Federal question | NH | Two |
| McKinnon v. Blue Cross & Blue Shield of Ala. | 935 F.2d 1186 | 1991 | Federal question | NH | Two |
| Talavera v. School Bd. of Palm Beach Cty. | 129 F.3d 1214 | 1995 | Federal question | Burnes | Two |
| Taylor v. Food World, Inc. | 133 F.3d 1419 | 1998 | Federal question | Burnes | Two |
| Salomon Smith Barney, Inc. v. Harvey | 260 F.3d 1302 | 2001 | Diversity | NH | Either |
| Burnes v. Pemco Aeroplex, Inc. | 291 F.3d 1282 | 2002 | Federal question | Burnes | Either |
| Barger v. City of Cartersville | 348 F.3d 1289 | 2003 | Federal question | Burnes | One |
† This column indicates whether the case presented a Burnes scenario, in which the party that is asserting judicial estoppel was not a party in the prior proceeding, or a New Hampshire scenario, in which the party that is asserting judicial estoppel was a party in the prior proceeding. As indicated in Part II.B. of the Special Concurrence, “prior proceeding” does not necessarily mean the lawsuit first filed. It has instead come to mean “another proceeding” where the violation of the oath occurs.
‡ This column indicates whether the case cites the language requiring one statement under oath or the language requiring two statements under oath for the doctrine of judicial estoppel to apply. In some instances, the case cites both the language requiring one oath and two oaths, which is indicated by “Either.”
The following is a list of court of appeals, district court, and bankruptcy court decisions within the Eleventh Circuit that cite Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003), or both as of February 22, 2016. I have included only cases that cite Burnes or Barger for judicial estoppel purposes. The first four columns indicate the year the case was decided, the court that decided the case, the case name, and the case citation. The last three columns are coded as follows. For the “Application of JE” column, “C.A.” indicates that the court cited and applied judicial estoppel, “C.N.A.” indicates that the court cited and did not apply judicial estoppel, “C.D.A.” indicates that the court cited the doctrine disapprovingly, but still applied judicial estoppel, and “C.D.N.A.” means the court cited the doctrine disapprovingly and did not apply judicial estoppel. For the “Burnes/Barger” column, entries with only “Burnes” or “Barger” mean that only that one case was cited, and an entry of “Burnes/Barger” means both cases were cited. For the final, “Bankruptcy Context” column, “Yes” indicates that the case occurred in the bankruptcy context, and “No” indicates that the case did not occur in the bankruptcy context.
* Subsequent case history omitted from citation.
| Year | Court | Case | Citation | Application of JE | Burnes/Barger | Bankruptcy Context |
|---|---|---|---|---|---|---|
| 2016 | 11th Cir. | Hoefling v. City of Miami | No. 14-12482, slip op. (11th Cir. Jan. 25, 2016) | C.N.A. | Burnes | No |
| 2016 | 11th Cir. | Palmer Ranch Holdings Ltd. v. Comm‘r | No. 14-14167, slip op. (11th Cir. Feb. 5, 2016) | C.N.A. | Burnes | No |
| 2016 | DC | Ortega v. Bel Fuse, Inc. | No. 15-21229-CIV, 2016 WL 524220 (S.D. Fla. Feb. 10, 2016) | C.N.A. | Burnes | Yes |
| 2016 | DC | Shields v. Univ. of W. Ala. | No. 7:14-CV-02198-LSC, 2016 WL 192074 (N.D. Ala. Jan. 15, 2016) | C.A. | Burnes/Barger | Yes |
| 2016 | Bk | In re Guerra | No. 8:11-BK-15663-MGW, 2016 WL 350849 (Bankr. M.D. Fla. Jan. 28, 2016) | C.N.A. | Burnes | Yes |
| 2015 | 11th Cir. | Anderson v. Brown Inds. | 614 F. App‘x 415 (11th Cir. 2015) | C.A. | Burnes | No |
| 2015 | 11th Cir. | D‘Antignac v. Deere & Co. | 604 F. App‘x 875 (11th Cir. 2015) | C.A. | Burnes/Barger | Yes |
| 2015 | 11th Cir. | Ward v. AMS Servicing, LLC | 606 F. App‘x 506 (11th Cir. 2015) | C.A. | Burnes | Yes |
| 2015 | DC | Advantus, Corp. v. Allen | No. 3:13-CV-1430-J-32PDB, 2015 WL 4429199 (M.D. Fla. July 20, 2015) | C.A. | Burnes/Barger | Yes |
| 2015 | DC | Allen v. Senior Home Care, Inc. | No. 14-81408-CIV, 2015 WL 1097408 (S.D. Fla. Mar. 11, 2015) | C.N.A. | Burnes | Yes |
| 2015 | DC | Banks v. Tanner Med. Ctr., Inc. | No. 1:12-CV-4450-RWS, 2015 WL 1481472 (N.D. Ga. Mar. 31, 2015) | C.A. | Burnes | Yes |
| 2015 | DC | Brown v. Winn-Dixie Stores, Inc. | No. CV 214-052, 2015 WL 3448614 (S.D. Ga. May 20, 2015) * | C.A. | Burnes/Barger | Yes |
| 2015 | DC | Copeland v. Birmingham Nursing & Rehabilitation Center, LLC | No. 2:14-cv-1523-JHH, 2015 WL 4068647 (N.D. Ala. July 1, 2015) | C.A. | Burnes/Barger | Yes |
| 2015 | DC | Ellis v. CB & T Bank of Middle Ga. | No. 5:14-CV-102 CAR, 2015 WL 1636822 (M.D. Ga. Apr. 13, 2015) | C.A. | Burnes/Barger | Yes |
| 2015 | DC | Keeton v. Big Lots Stores, Inc. | 84 F. Supp. 3d 1290 (N.D. Ala. 2015) | C.A. | Burnes/Barger | Yes |
| 2015 | DC | Lee v. Morgan | No. 2:14-CV-01204-RDP, 2015 WL 1958800 (N.D. Ala. May 1, 2015) | C.A. | Burnes/Barger | Yes |
| 2015 | DC | Marshall v. Sandersville R.R. Co. | No. 5:12-CV-425 MTT, 2015 WL 3648603 (M.D. Ga. June 10, 2015) | C.N.A. | Burnes/Barger | Yes |
| 2015 | DC | Moorer v. Rooms to Go Ala. Corp. | No. 2:13-cv-2199-SLB, 2015 WL 4426085 (N.D. Ala. July 20, 2015) | C.N.A. | Burnes | Yes |
| 2015 | DC | MTJ Trucking, Inc. v. Progressive Mountain Ins. Co. | No. 1:14-CV-02915-RWS, 2015 WL 4077747 (N.D. Ga. July 6, 2015) | C.A. | Burnes/Barger | Yes |
| 2015 | DC | Nichols v. Ala. State Bar | No. 2:15-cv-179-WMA, 2015 WL 3823929 (N.D. Ala. June 19, 2015) | C.N.A | Burnes | No |
| 2015 | DC | Perez v. Anastasia M. Garcia, P.A. | No. 15-20615-CIV, 2015 WL 5050548 (S.D. Fla. Aug. 26, 2015) | C.N.A. | Burnes/Barger | No |
| 2015 | DC | Pharma Supply, Inc. v. Stein | No. 14-80374-CIV, 2015 WL 328228 (S.D. Fla. Jan. 26, 2015) | C.N.A. | Burnes | No |
| 2015 | DC | Phillips v. Ocwen Loan Servicing, LLC | 92 F. Supp. 3d 1255 (N.D. Ga. 2015) * | C.N.A. | Burnes | Yes |
| 2015 | DC | Prison Legal News v. Jones | No. 4:12cv239-MW/CAS, 2015 WL 5047957 (N.D. Fla. Aug. 27, 2015) * | C.N.A. | Burnes | No |
| 2015 | DC | Smith v. Haynes & Haynes PC | No. 2:14-CV-1334-RDP, 2015 WL 4173024 (N.D. Ala. July 10, 2015) | C.A. | Burnes/Barger | Yes |
| 2015 | DC | Ussery v. Allstate Fire and Cas. Ins. Co. | No. 5:13-CV-83 LJA, --- F. Supp. 3d ---, 2015 WL 8773291 (M.D. Ga. Dec. 14, 2015) | C.N.A. | Burnes/Barger | Yes |
| 2015 | Bk | In re Buckley | No. 12-65335-MHM, 2015 WL 798535 (Bankr. N.D. Ga. Feb. 17, 2015) | C.N.A. | Barger | Yes |
| 2015 | Bk | In re Fundamental Long Term Care, Inc. | 542 B.R. 299 (Bankr. M.D. Fla. 2015) | C.A. | Burnes | Yes |
| 2015 | Bk | In re Kimrow, Inc. | 534 B.R. 219 (Bankr. M.D. Ga. 2015) | C.N.A. | Burnes/Barger | Yes |
| 2015 | Bk | In re Kourogenis | 539 B.R. 625 (Bankr. S.D. Fla. 2015) | C.N.A. | Burnes | Yes |
| 2015 | Bk | In re S & Shack, LLC | No. 09-67151-MGD, 09-68410-MGD, 2015 WL 1523635 (Bankr. N.D. Ga. Feb. 13, 2015) | C.A. | Burnes | Yes |
| 2015 | Bk | In re Trigeant Holdings, Ltd. | 523 B.R. 273 (Bankr. S.D. Fla. 2015) | C.N.A. | Burnes | Yes |
| 2015 | Bk | In re Wells | No 13-13309-BKC-RBR, 2015 WL 8928332 (Bankr. S.D. Fla. Nov. 3, 2015) | C.A. | Burnes | Yes |
| 2014 | 11th Cir. | Baloco v. Drummond Co., Inc. | 767 F.3d 1229 (11th Cir. 2014) | C.A. | Burnes | No |
| 2014 | 11th Cir. | Dunn v. Advanced Med. Specialities, Inc. | 556 F. App‘x 785 (11th Cir. 2014) | C.A. | Burnes/Barger | Yes |
| 2014 | 11th Cir. | Marable v. Marion Military Inst. | 595 F. App‘x 921 (11th Cir. 2014) | C.A. | Burnes | Yes |
| 2014 | DC | Banks v. Tanner Med. Ctr., Inc. | No. 1:12-CV-4450-RWS, 2014 WL 8391889 (N.D. Ga. Sept. 10, 2014) | C.A. | Burnes/Barger | Yes |
| 2014 | DC | Batdorf v. Athens Archery, Inc. | No. 13-0316-CG-B, 2014 WL 1826617 (S.D. Ala. May 8, 2014) | C.A. | Burnes/Barger | Yes |
| 2014 | DC | EMCASCO Ins. Co. v. Knight | No. CV-12-S-1890-NW, 2014 WL 5020044 (N.D. Ala. Oct. 7, 2014) | C.A. | Burnes | Yes |
| 2014 | DC | Fletcher v. Supreme Beverage Co. | No. 2:11-cv-0056-MHH, 2014 WL 5518294 (N.D. Ala. Oct. 31, 2014) | C.N.A. | Burnes | Yes |
| 2014 | DC | Job v. AirTran Airways, Inc. | No. 1:13-CV-2061-TWT, 2014 WL 414224 (N.D. Ga. Feb. 4, 2014) | C.N.A. | Burnes | Yes |
| 2014 | DC | Kunstmann v. Aaron Rents, Inc. | No. 2:08-cv-01969-KOB, 2014 WL 1388387 (N.D. Ala. Apr. 9, 2014) | C.A. | Burnes/Barger | Yes |
| 2014 | DC | Milian v. Wells Fargo & Co. | 507 B.R. 386 (S.D. Fla. 2014) * | C.A. | Burnes/Barger | Yes |
| 2014 | DC | Norman v. Norman | No. CV-12-J-2136-S, 2014 WL 457710 (N.D. Ala. Feb. 4, 2014) | C.A. | Burnes/Barger | Yes |
| 2014 | DC | Pringle v. Family Dollar Stores of Ga., Inc. | No. cv-112-044, 2014 WL 4926386 (S.D. Ga. Sept. 30, 2014) | C.N.A. | Burnes | Yes |
| 2014 | DC | Rambeault v. Accurate Mach. & Tool, LLC | No. 14-CIV-20136, 302 F.R.D. 675 (S.D. Fla. Oct. 2, 2014) | C.N.A. | Burnes | No |
| 2014 | DC | Smith v. Werner Enters., Inc. | 65 F.Supp.3d 1305 (S.D. Ala. 2014) | C.N.A. | Burnes/Barger | Yes |
| 2014 | DC | Summersill v. Kelly | No. 5:12-CV-667-OC-10PRL, 2014 WL 1333206 (M.D. Fla. Apr. 3, 2014) | C.A. | Burnes/Barger | Yes |
| 2014 | DC | Tuten v. Target Corp. | No. 4:14-cv-3, 2014 WL 6908866 (S.D. Ga. Dec. 8, 2014) | C.N.A. | Burnes | Yes |
| 2014 | DC | Vignoli v. Clifton Apartments, Inc. | No. 12-CV-24508, 2014 WL 6850778 (S.D. Fla. Dec. 3, 2014) | C.N.A. | Burnes/Barger | No |
| 2014 | DC | Welker v. Orkin, LLC | No. 5:13-CV-126 MTT, 2014 WL 1572535 (M.D. Ga. Apr. 17, 2014) | C.A. | Burnes/Barger | Yes |
| 2014 | DC | Young v. City of Mobile | No. CIV.A. 13-00586-KD-B, 2014 WL 3870716 (S.D. Ala. Aug. 7, 2014) | C.N.A. | Burnes/Barger | Yes |
| 2014 | Bk | In re Fist Foliage, L.C. | No. 10-27532-BKC-LMI, 2014 WL 2616618 (Bankr. S.D. Fla. June 11, 2014) | C.N.A. | Burnes | Yes |
| 2014 | Bk | In re Gregg | No. 11-40125JTL, 2014 WL 3339595 (Bankr. M.D. Ga. July 7, 2014) | C.A. | Barger | Yes |
| 2014 | Bk | In re McDaniel | 523 B.R. 895 (Bankr. M.D. Ga. 2014) | C.N.A. | Burnes/Barger | Yes |
| 2014 | Bk | In re PMF Enters., Inc. | 517 B.R. 350 (Bankr. M.D. Ga. 2014) | C.N.A. | Burnes | Yes |
| 2014 | Bk | In re Presta | No. 3:09-bk-1222-JAF, 2014 WL 2448444 (Bankr. M.D. Fla. May 28, 2014) | C.A. | Burnes | Yes |
| 2013 | DC | Antietam Inds., Inc. v. Morgan Keegan & Co., Inc. | No. 6:12-cv-1250-Orl-36TBS, 2013 WL 1213059 (M.D. Fla. Mar. 25, 2013) | C.N.A. | Burnes | No |
| 2013 | DC | Apotex, Inc. v. UCB, Inc. | 970 F. Supp. 2d 1297 (S.D. Fla. 2013) | C.A. | Burnes | No |
| 2013 | DC | Brothers v. Bojangles’ Rests., Inc. | No. CV-12-BE-2212-E, 2013 WL 6145332 (N.D. Ala. Nov. 21, 2013) | C.A. | Burnes/Barger | Yes |
| 2013 | DC | D‘Antignac v. Deere & Co. | No. CV 110-116, 2013 WL 6383113 (S.D. Ga. Dec. 5, 2013) * | C.A. | Burnes/Barger | Yes |
| 2013 | DC | Drakes v. Glenwood, Inc. | No. 2:10-CV-2659-VEH, 2013 WL 3356944 (N.D. Ala. June 28, 2013) | C.N.A. | Burnes/Barger | Yes |
| 2013 | DC | Helton v. Token, Inc. | No. 6:11-cv-02846-LSC, 2013 WL 1767831 (N.D. Ala. Apr. 23, 2013) | C.A. | Burnes | Yes |
| 2013 | DC | Pate v. Infirmary Health Sys., Inc. | No. CIV.A. 12-00513-KD-C, 2013 WL 5234312 (S.D. Ala. Sept. 17, 2013) | C.A. | Burnes/Barger | Yes |
| 2013 | DC | Perkins v. Berg Spiral Pipe Corp. | No. CIV.A. 12-0468-CG-N, 2013 WL 489164 (S.D. Ala. Feb. 7, 2013) | C.A. | Burnes/Barger | Yes |
| 2013 | DC | Stuart v. Resurgens Risk Mgmt., Inc. | No. 1:11-cv-04251-RWS, 2013 WL 2903571 (N.D. Ga. June 12, 2013) | C.N.A. | Burnes/Barger | Yes |
| 2013 | DC | Taylor v. Novartis Pharm. Corp. | 506 B.R. 157 (S.D. Fla. 2013) | C.A. | Burnes/Barger | Yes |
| 2013 | DC | Thompson v. EarthLink Shared Servs., LLC | 956 F.Supp.2d 1317 (N.D. Ala. 2013) | C.N.A. | Burnes/Barger | Yes |
| 2013 | DC | Willis v. Homesite Ins. Co. of the Midwest | 941 F. Supp. 2d 1356 (N.D. Ga. 2013) | C.N.A. | Burnes/Barger | Yes |
| 2013 | DC | Wolfe v. Solomon Law Grp., P.A. | No. CV 4:10-1933-RBP, 2013 WL 4013477 (N.D. Ala. Aug. 6, 2013) | C.A. | Burnes/Barger | Yes |
| 2013 | Bk | In re D‘Antignac | No. 05-10620, 2013 WL 1084214 (Bankr. S.D. Ga. Feb. 19, 2013) | C.N.A. | Barger | Yes |
| 2013 | Bk | In re Dig. Comm. Networks, Inc. | 496 B.R. 243 (Bankr. M.D. Fla. 2013) | C.N.A. | Barger | Yes |
| 2013 | Bk | In re Fields | No. 11-06065-BGC-12, 12-00122, 2013 WL 1136923 (Bankr. Mar. 19, 2013) | C.N.A. | Burnes | Yes |
| 2013 | Bk | In re Foster | No. 11-30021, 2013 WL 5376040 (Bankr. S.D. Ga. Sept. 24, 2013) | C.A. | Burnes | Yes |
| 2013 | Bk | In re Inv‘rs Lending Grp., LLC | No. 11-41963 (Bankr. S.D. Ga. Jan. 9, 2013) | C.A. | Burnes | Yes |
| 2013 | Bk | In re James | 487 B.R. 587 (Bankr. N.D. Ga. 2013) | C.N.A. | Burnes | Yes |
| 2013 | Bk | In re Mixon | No. 11-41568 (Bankr. S.D. Ga. 2013) | C.A. | Burnes | Yes |
| 2013 | Bk | In re Mouttet | 493 B.R. 640 (Bankr. S.D. Fla. 2013) | C.N.A. | Burnes | Yes |
| 2013 | Bk | In re Palm Beach Fin. Partners, L.P. | 517 B.R. 310 (Bankr. S.D. Fla. 2013) | C.N.A. | Burnes | Yes |
| 2013 | Bk | Riggins v. Ambrose | 500 B.R. 190 (Bankr. N.D. Ga. 2013) | C.N.A. | Burnes/Barger | Yes |
| 2012 | 11th Cir. | Jones v. United States | 467 F. App‘x 815 (11th Cir. 2012) | C.A. | Burnes/Barger | Yes |
| 2012 | DC | Axiom Worldwide, Inc. v. HTRD Grp. Hong Kong Ltd. | No. 8:11-cv-1468-T-33TBM, 2012 WL 4077505 (M.D. Fla. July 18, 2012) | C.N.A. | Burnes/Barger | No |
| 2012 | DC | Burch v. AmerOnc, Inc. | No. 7:11-CV-2342-RDP, 2012 WL 156155 (N.D. Ala. Apr. 25, 2012) | C.A. | Burnes/Barger | Yes |
| 2012 | DC | Cain v. Hyundai Motor Mfg. Alabama LLC | No. 2:11CV363-CSC, 2012 WL 1161443 (M.D. Ala. Apr. 6, 2012) | C.A. | Burnes/Barger | Yes |
| 2012 | DC | Carter v. Hartford Fire Ins. Co. | No. 1:11-cv-04008-TWT-GGB, 2012 WL 4888533 (N.D. Ga. Sept. 17, 2012) | C.A. | Barger | Yes |
| 2012 | DC | Cashatt v. Merrimac Assocs., Inc. | 853 F. Supp. 2d 1244 (N.D. Ga. 2012) | C.N.A. | Burnes | Yes |
| 2012 | DC | Evans v. Books-A-Million | 907 F. Supp. 2d 1284 (N.D. Ala. 2012) | C.A. | Burnes | No |
| 2012 | DC | Huff v. Macon Behavioral Health Treatment | No. 5:11-CV-455 MTT, 2012 WL 1344355 (M.D. Ga. Apr. 18, 2012) | C.A. | Burnes/Barger | Yes |
| 2012 | DC | Lay v. Hixon | No. 09-0075-WS-M, 2012 WL 1946346 (S.D. Ala. May 20, 2012) | C.N.A. | Burnes | No |
| 2012 | DC | Likes v. DHL Exp. (USA), Inc. | No. 2:08-cv-00428-ΑΚΚ, 2012 WL 8499732 (N.D. Ala. Mar. 7, 2012) | C.N.A. | Burnes | Yes |
| 2012 | DC | Lopez v. F.D.I.C. | No. 2:10-CV-00158-RWS, 2012 WL 1898798 (N.D. Ga. May 23, 2012) | C.A. | Burnes | Yes |
| 2012 | DC | Marable v. Marion Military Inst. | 906 F. Supp. 2d 1237 (S.D. Ala. 2012) aff‘d, 595 F. App‘x 921 (11th Cir. 2014) | C.A. | Burnes/Barger | Yes |
| 2012 | DC | Morton v. Bank of Am. Corp. | No. 5:12-CV-188 CAR, 2012 WL 3901749 (M.D. Ga. Sept. 7, 2012) | C.A. | Burnes/Barger | Yes |
| 2012 | DC | Reynolds v. Ala. Dep‘t of Transp. | No. 2:85CV665-MHT, 2012 WL 1110121 (M.D. Ala. Apr. 3, 2012) | C.N.A. | Burnes/Barger | Yes |
| 2012 | DC | Slater v. U.S. Steel Corp. | No. CV-09-BE-1732-S, 2012 WL 4478981 (N.D. Ala. Sept. 25, 2012) | C.A. | Burnes/Barger | Yes |
| 2012 | DC | Smith v. Wayne Farms, L.L.C. | No. CV-11-S-3590-NE, 2012 WL 1746857 (N.D. Ala. May 16, 2012) | C.A. | Burnes/Barger | Yes |
| 2012 | DC | Terrell v. Rathman | No. 1:11-cv-00199-WMA-HGD, 2012 WL 4953128 (N.D. Ala. Sept. 13, 2013) | C.A. | Burnes | No |
| 2012 | DC | U.S. ex rel. Bibby v. Wells Fargo Bank, N.A. | 906 F.Supp.2d 1288 (N.D. Ga. 2012) | C.N.A. | Burnes/Barger | Yes |
| 2012 | Bk | In re SOL, LLC | No. 09-12684-BKC-AJC, 2012 WL 2673254 (Bankr. S.D. Fla. 2012) | C.N.A. | Burnes | Yes |
| 2012 | Bk | In re Tinney | No. 07-42020-JJR13, 2012 WL 2742457 (Bankr. N.D. Ala. July 9, 2012) | C.N.A. | Burnes | Yes |
| 2011 | 11th Cir. | Warfield v. Stewart | 434 F. App‘x 777 (11th Cir. 2011) | C.N.A. | Burnes | No |
| 2011 | DC | Alvarez v. Royal Atl. Developers, Inc. | 854 F. Supp. 2d 1219 (S.D. Fla. 2011) | C.A. | Burnes/Barger | Yes |
| 2011 | DC | Bennett v. Flagstar Bank | No. CV 210-181, 2011 WL 6152940 (S.D. Ga. Dec. 8, 2011) | C.N.A. | Burnes/Barger | Yes |
| 2011 | DC | Daniels v. Tucker | No. 5:09cv328/RS/EMT, 2011 WL 7153921 (N.D. Fla. Nov. 22, 2011) | C.N.A. | Burnes | No |
| 2011 | DC | Farr v. Hall Cty. | No. 2:11-CV-00074-RWS, 2011 WL 5921462 (N.D. Ga. Nov. 28, 2011) | C.N.A. | Burnes/Barger | Yes |
| 2011 | DC | Mac v. Brooks | No. 3:11cv313-WHA, 2011 WL 3794683 (M.D. Ala. Aug. 25, 2011) | C.N.A. | Burnes | No |
| 2011 | DC | Mason v. Mitchell‘s Contracting Serv., LLC | 816 F. Supp. 2d 1178 (S.D. Ala. 2011) | C.A. | Burnes/Barger | Yes |
| 2011 | DC | Matheus v. Wagner & Hunt, P.A. | No. 10-61596-CIV, 2011 WL 1878582 (S.D. Fla. May 17, 2011) | C.N.A. | Burnes | Yes |
| 2011 | DC | Nettles v. State Farm Fire & Cas. Co. | No. 4:10-CV-106 CDL, 2011 WL 2462556 (M.D. Ga. June 17, 2011) | C.N.A. | Burnes/Barger | Yes |
| 2011 | DC | Pace v. Hurst Boiler & Welding Co. | No. 7:10-CV-116 HL, 2011 WL 97244 (M.D. Ga. Jan. 12, 2011) | C.A. | Burnes/Barger | Yes |
| 2011 | DC | Reynolds v. Ala. Dep‘t of Transp. | No. 2:85CV665-MHT, 2011 WL 2650244 (M.D. Ala. July 6, 2011) | C.A. | Burnes/Barger | Yes |
| 2011 | DC | Schreiber v. Ocwen Loan Servicing, LLC | No. 5:11-CV-211-OC-32TBS, 2011 WL 6055417 (M.D. Fla. Dec. 6, 2011) | C.N.A. | Burnes/Barger | Yes |
| 2011 | DC | United States v. All Funds in the Account of Prop. Futures, Inc. | 820 F. Supp. 2d 1305 (S.D. Fla. 2011) | C.N.A. | Burnes | No |
| 2011 | Bk | In re Aum Shree of Tampa, LLC | 449 B.R. 584 (Bankr. M.D. Fla. 2011) | C.N.A. | Burnes | Yes |
| 2010 | 11th Cir. | Hamilton v. Sec‘y, DOC | 410 F. App‘x 216 (11th Cir. 2014) | C.N.A. | Burnes | No |
| 2010 | 11th Cir. | Robinson v. Tyson Foods, Inc. | 595 F.3d 1269 (11th Cir. 2010) | C.A. (majority); C.D.A. (concurrence) | Burnes/Barger | Yes |
| 2010 | DC | Counts v. Red Coats, Inc. | No. 1:09-CV-3038-TWT-ECS, 2010 WL 2674423 (N.D. Ga. May 28, 2010) | C.N.A. | Burnes | Yes |
| 2010 | DC | Fla. Farm Bureau Gen. Ins. Co. v. Concille Jerigan | No. 3:09CV145/MCR/EMT, 2010 WL 3927816 (N.D. Fla. Sept. 30, 2010) | C.N.A. | Burnes | No |
| 2010 | DC | Hands v. Winn-Dixie Stores, Inc. | No. CIV.A. 09-0619-WS N, 2010 WL 4496798 (S.D. Ala. Nov. 1, 2010) | C.A. | Burnes/Barger | Yes |
| 2010 | DC | In re Tyson Foods, Inc. | 732 F.Supp.2d 1363 (M.D. Ga. 2010) | C.A. | Burnes/Barger | Yes |
| 2010 | DC | Peyovich v. World Mortg. Co. | No. 6:08-cv-404-Orl-28KRS, 2010 WL 3516721 (M.D. Fla. July 29, 2010) | C.N.A. | Burnes | No |
| 2010 | DC | Reynolds v. Ala. Dep‘t of Transp. | No. CIVA 2:85CV665-MHT, 2010 WL 1658284 (M.D. Ala. Apr. 21, 2010) | C.A. | Burnes/Barger | Yes |
| 2010 | DC | Solomon Tech., Inc. v. Toyota Motor Corp. | No. 8:05-cv-1702-T-MAP, 2010 WL 715243 (M.D. Fla. Jan. 26, 2010) | C.A. | Burnes | No |
| 2010 | DC | State Farm Fire and Cas. Co. v. Billingsley | No. 09-0267-KD-C, 2010 WL 1511560 (S.D. Ala. Apr. 14, 2010) | C.N.A. | Burnes | Yes |
| 2010 | DC | Wesley v. Nat‘l Mentor Healthcare, LLC | No. CIV.A.109-CV-978-TWT, 2010 WL 520759 (N.D. Ga. Feb. 8, 2010) | C.N.A. | Barger | Yes |
| 2010 | DC | Yerk v. People for the Ethical Treatment of Animals | No. 209CV537FTM29SPC, 2010 WL 3746815 (M.D. Fla. Sept. 21, 2010) | C.N.A. | Burnes/Barger | Yes |
| 2010 | Bk | In re Boston | No. 6:98-bk-08958-KSJ, 2010 WL 4117450 (Bankr. M.D. Fla. Oct. 18, 2010) | C.N.A. | Burnes | Yes |
| 2010 | Bk | In re Justo | No. 09-12516-BKC-AJC, 2010 WL 5018353 (Bankr. Dec. 3, 2010) | C.N.A. | Burnes | Yes |
| 2010 | Bk | In re Sandlin | No. 06-03792-TOM-13, 2010 WL 1416699 (Bankr. N.D. Ala. Apr. 8, 2010) | C.N.A. | Barger | Yes |
| 2010 | Bk | In re Shelton | No. 07-81534-JAC-7, 2010 WL 1743210 (Bankr. N.D. Ala. Apr. 26, 2010) | C.A. | Burnes/Barger | Yes |
| 2010 | Bk | In re Vasko | No. 09-79334-MGD, 2010 WL 4638600 (Bankr. N.D. Ga. Aug. 9, 2010) | C.A. | Burnes | Yes |
| 2009 | DC | Bender v. Tropic Star Seafood, Inc. | No. 4:07-CV-438-SPM, 2009 WL 903351 (N.D. Fla. Apr. 1, 2009) | C.N.A. | Burnes | Yes |
| 2009 | DC | Bishop‘s Prop. & Invs., LLC v. Protective Life Ins. Co. | 597 F. Supp. 2d 1354 (M.D. Ga. 2009) | C.A. | Burnes | No |
| 2009 | DC | Coppedge v. Suntrust Banks, Inc. | No. CIV.A. 3:08-CV-23(HL) 2009 WL 111639 (M.D. Ga. Jan. 14, 2009) | C.A. | Burnes/Barger | Yes |
| 2009 | DC | Evans v. Potter | No. 1:08-CV-1687-TWT, 2009 WL 529599 (N.D. Ga. Feb. 27, 2009) | C.N.A. | Burnes | Yes |
| 2009 | DC | Great Lakes Reinsurance (UK) PLC. v. Roca | No. 07-23322-CIV, 2009 WL 200257 (S.D. Fla. Jan. 23, 2009) | C.N.A. | Burnes | No |
| 2009 | DC | Melton v. Nat‘l Dairy Holdings, L.P. | No. CIV.A. 1:08CV174-TFM, 2009 WL 653024 (M.D. Ala. Mar. 10, 2009) | C.N.A. | Burnes/Barger | Yes |
| 2009 | DC | Reynolds v. Ala. Dep‘t of Transp. | No. 2:85cv665-MHT, 2009 WL 4456339 (M.D. Ala. Nov. 24, 2009) | C.A. | Burnes | Yes |
| 2009 | DC | Roots v. Morehouse Sch. of Med., Inc. | No. CIVA1:07-CV-00112JOF, 2009 WL 4798217 (N.D. Ga. Dec. 8, 2009) | C.N.A. | Burnes/Barger | Yes |
| 2009 | DC | Russell v. Promove, LLC | No. CIVA.106-CV-00659RWS, 2009 WL 1285885 (N.D. Ga. May 5, 2009) | C.N.A. | Burnes/Barger | Yes |
| 2009 | DC | Welt v. Amerisourcebergen Drug Corp. | No. 08-80287-CIV, 2009 WL 2730167 (S.D. Fla. Aug. 25, 2009) | C.N.A. | Burnes/Barger | Yes |
| 2009 | Bk | In re Grelier | 400 B.R. 826 (Bankr. N.D. Ala. 2009) | C.A. | Burnes/Barger | Yes |
| 2009 | Bk | In re Vann | No. 08-11824-DHW, 2009 WL 1311592 (Bankr. M.D. Ala. May 11, 2009) | C.N.A. | Burnes | Yes |
| 2009 | Bk | In re Webb | No. 96-74639, 2009 WL 6499125 (Bankr. N.D. Ga. Aug. 26, 2009) | C.N.A. | Burnes | Yes |
| 2008 | 11th Cir. | Betancur v. U.S. Atty. Gen. | 261 F. App‘x 218 (11th Cir. 2008) | C.N.A. | Burnes | No |
| 2008 | DC | Ameritox, Ltd. v. Aegis Servs. Corp. | No. 07-80498-CIV, 2008 WL 4540063 (S.D. Fla. Oct. 10, 2008) | C.N.A. | Burnes | No |
| 2008 | DC | Geico Cas. Co. v. Beauford | No. 8:05-cv-697-T-24 EAJ, 2008 WL 2600861 (M.D. Fla. June 30, 2008) | C.A. | Burnes | No |
| 2008 | DC | Jackson v. Advanced Disposal Servs. | No. 307-CV-773-J-33TEM, 2008 WL 958110 (M.D. Fla. Apr. 8, 2008) | C.N.A. | Burnes/Barger | Yes |
| 2008 | DC | Mark v. Labar | No. 08-80646-CIV, 2008 WL 4753745 (S.D. Fla. Oct. 27, 2008) | C.N.A. | Burnes | Yes |
| 2008 | DC | Oldfield v. Dolgencorp, Inc. | No. 3:08CV317/RS-EMT, 2008 WL 5191688 (N.D. Fla. Dec. 10, 2008) | C.A. | Burnes/Barger | Yes |
| 2008 | DC | Pendlebury v. Starbucks Coffee Co. | No. 04-80521-CIV, 2008 WL 763213 (S.D. Fla. Mar. 13, 2008) | C.N.A. | Burnes | No |
| 2008 | DC | Wood v. Green | No. 3:07CV95/MCR/EMT, 2008 WL 3200659 (N.D. Fla. Aug. 4, 2008) | C.N.A. | Burnes/Barger | Yes |
| 2008 | Bk | In re Brooks | No. 06-81704-JAC-7, 2008 WL 1721876 (Bankr. N.D. Ala. Apr. 10, 2008) | C.A. | Barger | Yes |
| 2008 | Bk | In re Hackney | No. 07-40952-JJR-11, 2008 WL 4830040 (Bankr. N.D. Ala. Oct. 10, 2008) | C.A. | Burnes | Yes |
| 2008 | Bk | In re Sholar | No. 07-12927-WHD, 2008 WL 7874791 (Bankr. N.D. Ga. Sept. 4, 2008) | C.N.A. | Burnes/Barger | Yes |
| 2008 | Bk | Thompson v. Quarles | 392 B.R. 517 (Bankr. S.D. Ga. 2008) | C.D.N.A. | Burnes/Barger | Yes |
| 2007 | 11th Cir. | Casanova v. Pre Sols., Inc. | 228 F. App‘x 837 (11th Cir. 2007) | C.A. | Burnes/Barger | Yes |
| 2007 | 11th Cir. | Pavlov v. Ingles Mkts., Inc. | 236 F. App‘x 549 (11th Cir. 2008) | C.A. | Burnes | Yes |
| 2007 | 11th Cir. | State Farm Fire and Cas. Co. v. Simmons | 217 F. App‘x 851 (11th Cir. 2007) | C.A. | Burnes | Yes |
| 2007 | DC | Brown v. Brock | No. 5:04-CV-339 (CAR), 2007 WL 2128191 (M.D. Ga. July 25, 2007) | C.A. | Burnes/Barger | Yes |
| 2007 | DC | Crosby v. Mobile Cty. | No. CIV.A.04-0144CG-M, 2007 WL 4125895 (S.D. Ala. Nov. 14, 2007) | C.N.A. | Burnes/Barger | Yes |
| 2007 | DC | Isaac v. Am. Intercontinental Univ. | No. 1:05-CV-2839-JEC, 2007 WL 1959201 (N.D. Ga June 28, 2007) | C.A. | Burnes/Barger | Yes |
| 2007 | DC | Kuehn v. Cadle Co. | No. 5:04CV432 OC10GRJ, 2007 WL 809656 (M.D. Fla. Mar. 15, 2007) | C.N.A. | Burnes/Barger | Yes |
| 2007 | DC | McKenzie v. Citation Corp., LLC | No. CIV.A. 05-0138-CG-C, 2007 WL 1424555 (S.D. Ala. May 11, 2007) | C.N.A. | Burnes/Barger | Yes |
| 2007 | DC | SFM Holdings, Ltd. v. Banc Of Am. Sec., LLC | No. 06-80652-CIV-RYSKAMP, 2007 WL 7124464 (S.D. Fla. Feb. 12, 2007) * | C.N.A. | Burnes/Barger | No |
| 2007 | DC | Tedford v. United States | No. 8:05CV1017-T-30TGW, 2007 WL 1098506 (M.D. Fla. Apr. 12, 2007) | C.N.A. | Burnes/Barger | Yes |
| 2007 | DC | The Coca-Cola Co. v. Pepsi-Cola Co. | 500 F. Supp. 2d 1364 (N.D. Ga. 2007) | C.A. | Burnes | No |
| 2007 | Bk | In re Engelbrecht | 368 B.R. 898 (Bankr. M.D. Fla. 2007) | C.N.A. | Burnes/Barger | Yes |
| 2007 | Bk | In re Foreman | 378 B.R. 717 (Bank. S.D. Ga. 2007) | C.N.A. | Burnes/Barger | Yes |
| 2007 | Bk | In re Jones | 381 B.R. 555 (Bankr. M.D. Fla. 2007) | C.N.A. | Burnes/Barger | Yes |
| 2007 | Bk | In re Lentek Int‘l | 377 B.R. 396 (Bankr. M.D. Fla. 2007) | C.N.A. | Burnes | Yes |
| 2007 | Bk | In re Leto | No. 06-12939-BKC-PGH, 2007 WL 4117271 (Bankr. S.D. Fla. Nov. 15, 2007) | C.A. | Burnes | Yes |
| 2007 | Bk | In re Pace Tr. of Pace Irrevocable Tr. | 376 B.R. 334 (Bankr. M.D. Fla. 2007) | C.N.A. | Burnes | Yes |
| 2007 | Bk | In re Reed | No. 04-13062, 2007 WL 274322 (Bankr. S.D. Ala. Jan. 26, 2007) | C.N.A. | Burnes | Yes |
| 2007 | Bk | In re Tarver | No. 05-12028-DHW, 2007 WL 1876369 (Bankr. M.D. Ala. June 28, 2007) | C.N.A. | Burnes | Yes |
| 2007 | Bk | In re Taylor | 363 B.R. 303 (Bankr. M.D. Fla. 2007) | C.N.A. | Burnes/Barger | Yes |
| 2006 | 11th Cir. | Ajaka v. BrooksAmerica Mortg. Corp. | 453 F.3d 1339 (11th Cir. 2006) | C.N.A. | Burnes | Yes |
| 2006 | 11th Cir. | Bridge Capital Inv‘rs, II v. Susquehanna Radio Corp. | 458 F.3d 1212 (11th Cir. 2006) | C.N.A. | Burnes | Yes |
| 2006 | 11th Cir. | Strauss v. Rent-A-Ctr., Inc. | 192 F. App‘x 821 (11th Cir. 2006) | C.N.A. | Burnes/Barger | Yes |
| 2006 | 11th Cir. | United States v. Campa | 459 F.3d 1121 (11th Cir. 2006) | C.N.A. | Burnes | No |
| 2006 | DC | Belnavis v. Nicholson | No. 8:05-CV-778-T-23TGW, 2006 WL 3359684 (M.D. Fla. Nov. 20, 2006) | C.A. | Burnes/Barger | Yes |
| 2006 | DC | Carroll v. Henry Cty. | 336 B.R. 578 (N.D. Ga. 2006) | C.N.A. | Burnes | Yes |
| 2006 | DC | Casanova v. Pre Sols., Inc. | No. 1:04-CV-2053-RLV, 2006 WL 5451193 (N.D. Ga. Mar. 29, 2006) | C.A. | Burnes | Yes |
| 2006 | DC | Franklin v. Blue Cross & Blue Shield of Fla., Inc., Short Term Disability Plan | No. 306CV101J32TEM, 2006 WL 2792893 (M.D. Fla. Sept. 27, 2006) | C.N.A. | Barger | No |
| 2006 | DC | Helson v. Nuvell Fin. Servs. Corp. | No. 8:05-CIV1788T17MAP, 2006 WL 1804583 (M.D. Fla. June 27, 2006) | C.A. | Burnes | Yes |
| 2006 | DC | Jones v. Comm. Newpapers, Inc. | No. 3:05-cv-240-J-16MMH, 2006 WL 2507610 (M.D. Fla. Aug. 28, 2006) | C.N.A. | Burnes | Yes |
| 2006 | DC | Kennedy v. Jim‘s Formal Wear Co. | No. CIVA1:05CV1280JEC, 2006 WL 2661264 (N.D. Ga. Sept. 14, 2006) | C.N.A. | Burnes/Barger | Yes |
| 2006 | DC | Lett v. Reliable Ruskin | No. 1:05CV479-WHA, 2006 WL 2056582 (M.D. Ala. July 24, 2006) | C.A. | Burnes/Barger | Yes |
| 2006 | DC | Marshall v. Electrolux Home Prods., Inc. | No. 605CV-1587ORL-18KRS, 2006 WL 3756574 (M.D. Fla. Dec. 19, 2006) | C.A. | Burnes/Barger | Yes |
| 2006 | DC | Moore v. Fred‘s Stores of Tenn., Inc. | No. 4:05CV133 CDL, 2006 WL 2374768 (M.D. Ga. Aug. 16, 2006) | C.A. | Burnes/Barger | Yes |
| 2006 | DC | Pavlov v. Ingles Mkts., Inc | No. CIV.A. 1:03CV1647JOF, 2006 WL 949934 (N.D. Ga. Apr. 11, 2006) * | C.A. | Burnes/Barger | Yes |
| 2006 | DC | Smith v. Scales Express, Inc. | No. Civ.A. 05-0331-BH-B, 2006 WL 2190575 (S.D. Ala. Sept. 7, 2006) | C.N.A. | Burnes | Yes |
| 2006 | DC | Smith v. Scales Express, Inc. | No. 05-0331-BH-B, 2006 WL 2190575 (S.D. Ala. Aug. 2. 2006) | C.N.A. | Burnes | Yes |
| 2006 | DC | Snowden v. Fred‘s Stores of Tenn., Inc. | 419 F. Supp. 2d 1367 (M.D. Ala. 2006) | C.N.A. | Burnes/Barger | Yes |
| 2006 | DC | Stephens v. Hoffmann-La Roche, Inc. | No. 8:04 CV 2643 T 30TBM, 2006 WL 3694644 (M.D. Fla. Dec. 13, 2006) | C.N.A. | Burnes/Barger | Yes |
| 2006 | DC | Wheeler v. Fla. Dep‘t. of Corrections | No. 3:04-cv-1147-J-32MCR, 2006 WL 2321114 (M.D. Fla. Aug. 9, 2006) | C.N.A. | Burnes/Barger | Yes |
| 2006 | Bk | In re Full Gospel Assembly of Delray Beach, Inc. | No. 05-23067-BKC-JKO, 2006 WL 3922110 (Bankr. S.D. Fla. Dec. 14, 2006) | C.N.A. | Burnes | Yes |
| 2006 | Bk | In re Parker | 351 B.R. 790 (Bankr. N.D. Ga. 2006) | C.A. | Barger | Yes |
| 2006 | Bk | In re Sudderth | No. BKR. 04-63227, 2006 WL 6591618 (Bankr. N.D. Ga. Apr. 4, 2006) | C.N.A. | Barger | Yes |
| 2005 | 11th Cir. | Muse v. Accord Human Res., Inc. | 129 F. App‘x 487 (11th Cir. 2005) | C.N.A. | Burnes | Yes |
| 2005 | 11th Cir. | Palmer & Cay, Inc. v. Marsh & McLennan Cos., Inc. | 404 F.3d 1297 (11th Cir. 2005) | C.N.A. | Burnes | No |
| 2005 | 11th Cir. | Transamerica Leasing, Inc. v. Inst. of London Underwriters | 430 F.3d 1326 (11th Cir. 2005) | C.N.A. | Burnes | No |
| 2005 | DC | Ajaka v. Brooks America Mortg. Corp. | No. CIVA103CV0977BBM, 2005 WL 6075374 (N.D. Ga. Mar. 16, 2005) * | C.A. | Burnes/Barger | Yes |
| 2005 | DC | Allapattah Servs., Inc. v. Exxon Corp. | 372 F. Supp. 2d 1344 (S.D. Fla. 2005) | C.A. | Burnes | No |
| 2005 | DC | Arlaine & Gina Rockey, Inc. v. Cordis Corp. | No. 02-22555-CIV, 2005 WL 6111611 (S.D. Fla. Jan. 26, 2005) | C.N.A. | Barger | No |
| 2005 | DC | Brown v. Brock | No. 5:04CV339DF, 2005 WL 1429756 (M.D. Ga. June 13, 2005) * | C.A. | Burnes | Yes |
| 2005 | DC | Davis v. Valley Hosp. Servs., LLC. | 372 F. Supp. 2d 641 (M.D. Ga. 2005) * | C.N.A. | Barger | Yes |
| 2005 | DC | DePaola v. Nissan Hosp. Am., Inc. | No. Civ.A. 1:04CV267-W, 2005 WL 2122265 (M.D. Ala. Jan. 28, 2005) | C.N.A. | Burnes | Yes |
| 2005 | DC | Gipson v. Cross Country Bank | 354 F. Supp. 2d 1278 (M.D. Ala. 2005) | C.N.A | Burnes | No |
| 2005 | DC | Killebrew v. CSX Transp., Inc. | Nos. Civ.A. 203CV0943D, Civ.A. 203CV1284D, Civ.A. 204CV960D, 2005 WL 1705636 (M.D. Ala. July 19, 2005) | C.N.A. | Burnes/Barger | Yes |
| 2005 | DC | Spann v. DynCorp. Tech. Servs., LLC | 403 F. Supp. 2d 1082 (M.D. Ala. 2005) | C.N.A | Burnes | Yes |
| 2005 | DC | Strauss v. Rent-A-Center, Inc. | No. 6:04-cv-1133ORL22KRS, 2005 WL 2647893 (M.D. Fla. Oct. 17, 2005) | C.A. | Burnes/Barger | Yes |
| 2005 | Bk | In re Farmer | 324 B.R. 918 (Bankr. M.D. Ga. 2005) | C.N.A | Burnes | Yes |
| 2005 | Bk | In re Heidkamp | 334 B.R. 713 (Bankr. M.D. Fla. 2005) | C.N.A. | Burnes | Yes |
| 2005 | Bk | In re Phelps | 329 B.R. 904 (Bankr. M.D. Ga. 2005) | C.N.A. | Burnes | Yes |
| 2005 | Bk | In re Transit Grp., Inc | 332 B.R. 45 (Bankr. M.D. Fla. 2005) | C.N.A. | Burnes/Barger | Yes |
| 2004 | 11th Cir. | Parker v. Wendy‘s Intern., Inc. | 365 F.3d 1268 (11th Cir. 2004) | C.N.A. | Burnes/Barger | Yes |
| 2004 | Bk | In re Baldwin | 307 B.R. 251 (Bankr. M.D. Ala. 2004) | C.N.A. | Burnes/Barger | Yes |
| 2004 | Bk | In re Moore | 312 B.R. 902 (Bankr. N.D. Ala. 2004) | C.N.A. | Burnes/Barger | Yes |
| 2004 | Bk | In re Rochester | 308 B.R. 596 (Bankr. N.D. Ga. 2004) | C.N.A. | Burnes/Barger | Yes |
| 2004 | Bk | In re Williams | 310 B.R. 442 (Bankr. N.D. Ala. 2004) | C.N.A. | Burnes/Barger | Yes |
| 2003 | 11th Cir. | Barger v. City of Cartersville, Ga. | 348 F.3d 1289 (11th Cir. 2003) | C.A. (majority); C.N.A. (dissent) | Burnes | Yes |
| 2003 | 11th Cir. | De Leon v. Comcar Inds., Inc. | 321 F.3d 1289 (11th Cir. 2003) | C.A. | Burnes | Yes |
| 2003 | 11th Cir. | In re Cox | 338 F.3d 1238 (11th Cir. 2003) | C.A. | Burnes | Yes |
| 2003 | DC | Kroll v. Home Depot U.S.A., Inc. | No. Civ.A. CV202-113, 2003 WL 23332905 (S.D. Ga. Aug. 20, 2003) | C.A. | Burnes | Yes |
| 2003 | DC | Walton v. Life Ins. Co. of Ga. | No. Civ.A. 1:02-CV3489TWT, 2003 WL 22053116 (N.D. Ga. Aug. 22, 2003) | C.A. | Burnes | Yes |
| 2003 | Bk | In re Bercu | 293 B.R. 806 (Bankr. M.D. Fla. 2003) | C.N.A. | Burnes | Yes |
| 2003 | Bk | In re Galbreath | No. 55-99-60517, 2003 WL 26119288 (Bankr. S.D. Ga. Aug. 27, 2003) | C.N.A. | Burnes | Yes |
| 2003 | Bk | In re Haskett | 297 B.R. 637 (Bankr. N.D. Ala. 2003) | C.N.A. | Burnes/Barger | Yes |
| 2003 | Bk | In re Henderson | 297 B.R. 875 (Bankr. M.D. Fla. 2003) | C.N.A. | Burnes | Yes |
| 2003 | Bk | In re Huggins | 305 B.R. 63 (Bankr. N.D. Ala. 2003) | C.A. | Barger | Yes |
| 2002 | DC | Gonzalez v. M/V DESTINY | No. 00-1690-CIV, 2002 WL 31962167 (S.D. Fla. Sept. 30, 2002) | C.A. | Burnes | No |
| 2002 | DC | Lane v. Health Options, Inc. | 221 F. Supp. 2d 1301 (S.D. Fla. 2002) | C.N.A. | Burnes | Yes |
| 2002 | DC | Walker v. Delta Air Lines, Inc. | No. Civ.A. 100CV0558-TWT, 2002 WL 32136202 (N.D. Ga. 2002) | C.A. | Burnes | Yes |
| 2002 | Bk | In re Barger | 279 B.R. 900 (Bankr. N.D. Ga. 2002) | C.N.A. | Burnes | Yes |
| 2002 | Bk | In re Old Naples Secs., Inc. | 311 B.R. 607 (Bankr. M.D. Fla. 2002) | C.A. | Burnes | Yes |
| 2002 | Bk | In re Peagler | 307 B.R. 270 (Bankr. M.D. Ala. 2002) | C.N.A. | Burnes | Yes |
Notes
Id. at 807, 119 S. Ct. at 1604. We note that the Supreme Court did not cite Cleveland in its New Hampshire decision. In New Hampshire, the Court recognized that judicial estoppel applies in a variety of contexts and then went on to articulate factors particularly relevant to cases involving the same parties in two proceedings. New Hampshire, 532 U.S. at 749–51, 121 S. Ct. at 1814–15. From this, one might infer that the Supreme Court considers the New Hampshire scenario and the Burnes scenario to involve entirely different settings.[w]hen faced with a plaintiff‘s previous sworn statement asserting “total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror‘s concluding that, assuming the truth of, or the plaintiff‘s good-faith belief in, the earlier statement, the plaintiff could nonetheless “perform the essential functions” of her job, with or without “reasonable accommodation.”
H.R. Rep. No. 95-595, at 88 (1978), as reprinted in 1978 U.S.C.C.A.N. 5963, 6050 provides:
active supervision is essential. Bankruptcy affects too many people to allow it to proceed untended by a[n] impartial supervisor.Bankruptcy is an area where there exists a significant potential for fraud, for self-dealing, and for diversion of funds. In contrast to general civil litigation, where cases affect only two or a few parties at most, bankruptcy cases may affect hundreds of scattered and ill-represented creditors. . . . In bankruptcy cases, . .
(footnotes omitted). As a caveat, the above language is in reference to the Bankruptcy Act of 1898, which was superseded by the Bankruptcy Act of 1978, which in turn was held unconstitutional. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87-88, 102 S. Ct. 2858, 2880, 73 L. Ed. 2d 598 (1982) (plurality opinion); see also Stern v. Marshall, 564 U.S. 462, 131 S. Ct. 2594, 2620, 180 L. Ed. 2d 475 (2011). The sentiment still holds generally true.
Id. Salomon was decided on August 9, 2001, three days after the Supreme Court denied rehearing in New Hampshire, and thus, quite understandably, did not cite the New Hampshire decision. By way of historical background, the quotation attributed to McKinnon was taken from American National Bank v. Federal Deposit Insurance Corporation, 710 F.2d 1528, 1536 (11th Cir. 1983)Judicial estoppel “is applied to the calculated assertion of divergent sworn positions . . . [and] is designed to prevent parties from making a mockery of justice by inconsistent pleadings.” McKinnon v. Blue Cross & Blue Shield of Ala., 935 F.2d 1187, 1192 (11th Cir. 1991) (citation omitted). This circuit‘s approach contemplates two elements. First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.
In Ajaka v. BrooksAmerica Mortgage Corporation, 453 F.3d 1339 (11th Cir. 2006), we considered the debtor‘s failure to “amend his Chapter 13 reorganization plan to reflect his contingent [Truth in Lending Act] claim” as taking an “inconsistent position[ ] . . . under oath in a prior proceeding.” Id. at 1344 (quoting Burnes, 291 F.3d at 1285). “Because Ajaka failed to assert his TILA claim as an asset in the bankruptcy proceeding, the first [factor] of our judicial estoppel test is satisfied. See Burnes, 291 F.3d at 1285 (finding similar failure to disclose in bankruptcy proceeding to satisfy the first factor).” Id.; see also Robinson v. Tyson
Foods, Inc., 595 F.3d 1269, 1275 (11th Cir. 2010) (“By failing to update her bankruptcy schedule to reflect her pending claim, Robinson represented that she had no legal claims to the bankruptcy court while simultaneously pursuing her legal claim against Tyson in the district court. These actions, both taken under oath, are clearly inconsistent. Therefore, in accordance with Ajaka, Robinson took inconsistent positions under oath and the issue of judicial estoppel centers on her intent.“). In a Chapter 7 bankruptcy, the trustee and the debtor are two separate individuals, whereas in Chapter 13 proceedings, the debtor may step into the shoes of a trustee, and in this capacity is named the “debtor in possession.” SeeIn contrast, Barger held that the trustee was bound by the debtor‘s failure to disclose in her bankruptcy filings that the claims she was prosecuting were assets of the bankruptcy estate.
See Mosser v. Darrow, 341 U.S. 267, 271, 71 S. Ct. 680, 682, 95 L. Ed. 927 (1951).(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
. . . .
(c) Unless the court orders otherwise, any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title.
(d) Unless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate.
(a) The court shall grant the debtor a discharge, unless—
. . . .
(2) the debtor, with intent to hinder, delay, or defraud a creditor . . . has . . . concealed—
(A) property of the debtor, within one year before the date of the filing of the petition; or
(B) property of the estate, after the date of the filing of the petition;
. . . .
(c) (1) The trustee, a creditor, or the United States trustee may object to the granting of a discharge under subsection (a) of this section.
(2) On request of a party in interest, the court may order the trustee to examine the acts and conduct of the debtor to determine whether a ground exists for denial of discharge.
(d) On request of the trustee, a creditor, or the United States trustee, and after notice and a hearing, the court shall revoke a discharge granted under subsection (a) of this section if—
(1) such discharge was obtained through the fraud of the debtor, and the requesting party did not know of such fraud until after the granting of such discharge;
(2) the debtor acquired property that is property of the estate, or became entitled to acquire property that would be property of the estate, and knowingly and fraudulently failed to report the acquisition of or entitlement to such property, or to deliver or surrender such property to the trustee;
. . . .
(e) The trustee, a creditor, or the United States trustee may request a revocation of a discharge—
(1) under subsection (d)(1) of this section within one year after such discharge is granted; or
(2) under subsection (d)(2) or (d)(3) of this section before the later of—
(A) one year after the granting of such discharge; and
(B) the date the case is closed.
In re Lopez, 283 B.R. 22, 30 (B.A.P. 9th Cir. 2002) (citation omitted).[A]ny legitimate concerns about a former debtor‘s misconduct can be addressed by other methods, rather than refusing to reopen a bankruptcy case. In appropriate situations a debtor can be subject to prosecution and penalties. See, e.g.,
18 U.S.C. §§ 152 and3571 . If a debtor shows bad faith, or if third parties are prejudiced by nondisclosure of an asset, then the bankruptcy court can exercise its discretion to disallow any claimed exemption in the asset, in whole or in part. In the circumstances of this appeal, where all creditors might get paid in full, Lopez still might receive a substantial portion of any recovery in the Action (11 U.S.C. § 726(a)(6) ), but presumably that recovery would be because the Action had merit, not because Lopez gained any advantage by failing to list the Action.
Id.[She] did not tell the trustee that she was seeking . . . liquidated damages, compensatory damages, and punitive damages. She did not inform the trustee about these additional damages even though she added them to her prayer for relief [in the District Court litigation] a mere two days before the creditors meeting [conducted by the trustee].
Gee v. Pritchard, (1818) 2 Swans. 402, 414.The doctrines of this Court ought to be as well settled, and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. . . . Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this court varies like the Chancellor‘s foot.
677 F.3d 258, 262 (5th Cir. 2012) (citations omitted).As one court has stated, “the motivation sub-element is almost always met if a debtor fails to disclose a claim or possible claim to the bankruptcy court. Motivation in this context is self-evident because of potential financial benefit resulting from the nondisclosure.” Similarly, this court has found that debtors had a motivation to conceal where they stood to “reap a windfall had they been able to recover on the undisclosed claim without having disclosed it to the creditors.”
(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
. . . .
(c) Unless the court orders otherwise, any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title.
Barger, 348 F.3d at 1296.The Court is not persuaded by the bankruptcy court‘s reasoning. The foremost responsibility in this matter was for Barger to fully disclose her assets. She did not satisfy her duty. Instead, she dissembled to the trustee and indicated that her discrimination claim had no monetary value. As such, the trustee can hardly be faulted for not further investigating Barger‘s discrimination suit.
Property that is not correctly scheduled remains property of the estate forever, until administered or formally abandoned by the trustee. Thus, in the case of an omitted cause of action, the trustee is the real party in interest and the correct defense is one of standing, i.e., the action is not being prosecuted by the real party in interest which is the trustee, not the debtor. Cases like this must be reopened to permit the trustee to deal with the property of the estate.