JAMES I. COHN, United States District Judge.
Plaintiff Keith Taylor ("Plaintiff) originally filed a complaint in this Court against Defendant Novartis Pharmaceuticals Corporation ("Defendant") on September 1, 2006. Complaint [DE 1]. The Judicial Panel on Multidistrict Litigation ("JPML") subsequently removed the case to the Middle District of Tennessee for consolidated pretrial proceedings with similar actions brought against Defendant by other plaintiff's. See Conditional Transfer Order [DE 9, 10]. On September 5, 2012, the JPML signed a conditional remand order which remanded this case to this Court. Conditional Remand Order [DE 11].
On April 15, 2013, Defendant filed the instant Motion which seeks judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The basis of the Motion is that Plaintiff filed for Chapter 7 bankruptcy in 2010, after the filing of this lawsuit, but failed to disclose the lawsuit in his sworn filings before the bankruptcy courti Motion at 2. Defendant contends that under Eleventh Circuit precedent, Plaintiff is judicially estopped from pursuing his claim in this case due to his failure to disclose it to the bankruptcy court. Id. Defendant seeks dismissal of Plaintiff's claims with prejudice. Id at 3. Plaintiff opposes the Motion, arguing that Defendant has misapplied the doctrine of judicial estoppel, the Motion is untimely, and Defendant lacks standing to raise the judicial estoppel argument. See generally Response.
Upon initial review of the parties' submissions, the Court found that it could not grant Defendant the relief sought pursuant to Rule 12(c). In support of the Motion, Defendant attached documents from Plaintiff's bankruptcy case and argued that the Court could take judicial notice of the bankruptcy pleadings. See Motion at 3 n.1. As the Court noted, this argument was previously rejected by the Eleventh Circuit in a factually analogous case. In Brown v. Brock, the Eleventh Circuit held that "the district court cannot take judicial notice of the bankruptcy petition that was attached by the Rule 12(c) movant." 169 Fed.Appx. 579, 582 (11th Cir.2006). The Eleventh Circuit, thus, vacated the district court's grant of the Rule 12(c) motion because the court had considered the bankruptcy petition. Id. Because the Court found that consideration of documents outside the pleadings was necessary to resolve the Motion, the Court converted the Motion into a motion for summary judgment pursuant to Rule 12(d) and gave the parties time to supplement the record. See DE 83. Thus, the Court will treat the Motion as a motion for summary judgment.
The Court may grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To discharge this burden, the movant must demonstrate a lack of evidence supporting the nonmoving party's case. Id. at 325, 106 S.Ct. 2548.
After the movant has met its burden under Rule 56(c), the burden of production shifts to the nonmoving party who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Alb U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party "may not rely merely on allegations or denials in its own pleading," but instead must come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.
As long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the evidence advanced
In the Motion, Defendant contends that while preparing for trial and a Daubert hearing, it discovered that Plaintiff had filed for Chapter 7. Bankruptcy in the United States'Bankruptcy Court for the Southern District of Florida, case no. 10-18235-JKO, on March 30, 2010. Motion at 3. Defendant argues that under Eleventh Circuit precedent, Plaintiff is judicially estopped from pursuing his claims against it due to his failure to disclose this case to the Bankruptcy Court. Id. at 6. Defendant also asserts that its Motion may be treated as a challenge to Plaintiff's standing. Id. at 3 n.l. Plaintiff opposes the Motion, arguing that judicial estoppel is inappropriate in this case because his failure to disclose his claim in the Chapter 7 bankruptcy "was unintentional and inadvertent." Response at 8. Plaintiff also contends that any challenge to his standing is untimely because it is brought a year after Defendant first learned about the bankruptcy and Plaintiff still has an interest in prosecuting his claims. Id. at 10.
"The purpose of judicial estoppel is `to protect the integrity of the judicial process by prohibiting parties from changing positions according to the exigencies of the moment.'" Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir.2010) (quoting New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). Factors to consider when determining whether judicial estoppel applies include "(1) whether the present position is clearly inconsistent with the earlier position; (2) whether the party succeeded in persuading a court to accept the earlier position, so that judicial acceptance of the inconsistent position in a later proceeding would create the perception that either the first or second court was mislead and; (3) whether the party advancing the inconsistent position would derive an unfair advantage." Id. at 1273 (citing New Hampshire, 532 U.S. at 750-51, 121 S.Ct. 1808). Under Eleventh Circuit precedent, judicial estoppel may apply where "the allegedly inconsistent positions were made under oath in a prior proceeding" and "such inconsistencies [are] shown to have been calculated to make a mockery of the judicial system." Id. (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002) (internal quotation marks omitted)).
Full and honest disclosures in bankruptcy proceedings are "crucial to the systems's effective functioning." Id, at 1274 (citation and internal quotation marks omitted). Furthermore, a debtor has a statutory duty to disclose all assets or potential assets to the bankruptcy court. Id. (citing 11 U.S.C. §§ 521(1), 541(a)(7)). A pending lawsuit seeking monetary compensation qualifies as an asset. Id. (citing Parker v. Wendy's Int% Inc., 365 F.3d 1268 (11th Cir.2004)). Where a debtor/plaintiff represents to the bankruptcy court under oath that he has no pending claims while simultaneously pursuing a claim against a defendant in the district court, the debtor/plaintiff has taken inconsistent positions. Id. at 1275.
To determine a party's intent in taking the inconsistent positions, "the debtor's failure to satisfy its statutory disclosure duty is `inadvertent' only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment." Id. (quoting Barger v. City of Cartersville, 348 F.3d 1289, 1295-96 (11th Cir.2003)). Whether a party's contradiction is intentional "may be inferred from the record." Id. (citing
Here, the record before the Court is undisputed that Plaintiff took inconsistent positions in this case and his bankruptcy case. When he filed for bankruptcy in March 2010, this case had been pending for three and a half years. Yet, inexplicably, Plaintiff failed to disclose his pending claim to the bankruptcy court as required on the Statement of Financial Affairs. Thus, Plaintiff took inconsistent positions. Plaintiff disputes, however, that the non-disclosure was intentional, arguing that his failure to disclose this case to the Bankruptcy Court was "unintentional and inadvertent." Response at 8. The only evidence Plaintiff points to that the nondisclosure was inadvertent is his testimony from his March 22, 2012 deposition in this case where he disclosed the bankruptcy in response to questioning from Defendant's counsel. See Excepts of the Deposition of Keith Taylor [DE 79-1]. The mere fact that Plaintiff discussed his bankruptcy in this case, nearly two years after his discharge was entered, does not establish that his failure to disclose the bankruptcy back in 2010 was inadvertent. As the Eleventh Circuit has held, "the relevant inquiry is intent at the time of non-disclosure." Robinson, 595 F.3d at 1276 (citing Casanova, 228 Fed.Appx. at 841).
At the time he failed to disclose this case to the Bankruptcy Court, Plaintiff unquestionably had knowledge of his pending claim. Indeed, he managed to disclose a pending claim filed against him by Discovery Bank. See Voluntary Petition at 32. Moreover, the record unequivocally establishes that Plaintiff had a motive to conceal this lawsuit from the Bankruptcy Court: namely to obtain a discharge of nearly $200,000 in debt while any funds he later recovered in this case would be his own. See Reply at 3. As this Court held in Alvarez v. Royal Atlantic Developers, Inc., 854 F.Supp.2d 1219 (S.D.Fla,2011), a clear motive for concealing a lawsuit from the bankruptcy court exists where, as here, the debtor received a "no asset" discharge. Id. at 1227; see also Barger, 348 F.3d at 1294 ("The debtor implicitly acknowledged `that disclosing this information would have likely changed the result of his bankruptcy because he now seeks to re-open his bankruptcy to include the undisclosed claims.'")
Defendant also argues that Plaintiff no longer has standing to pursue this action.
"[A] pre-petition cause of action is the property of the Chapter 7 bankruptcy estate, and only the trustee in bankruptcy has standing to pursue it." Parker, 365 F.3d at 1272 (citing Barger, `348 F.3d at 1292). Plaintiff, therefore, lacks standing to pursue this case.
Based on the foregoing, it is