NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 11-2826
                                  _____________

                        HAINES & KIBBLEHOUSE, INC.,
                                         Appellant

                                         v.

                  BALFOUR BEATTY CONTRUCTION, INC.

                                  _____________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                         District Court No. 5-08-cv-05505
                  District Judge: The Honorable Stewart Dalzell

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               January 10, 2014

           Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges

                             (Filed: February 3, 2014)
                             _____________________

                                    OPINION
                             _____________________

SMITH, Circuit Judge.

      Haines & Kibblehouse, Inc. (“H&K”) appeals from an order of the District

Court dismissing its complaint pursuant to the doctrine of judicial estoppel. For the

reasons expressed below, we will affirm.
      This case comes before us after traversing a complex procedural path, which

the District Court aptly characterized as “labyrinthian.” Balfour Beatty

Construction,    Inc.   (“Balfour”)    contracted   with   the   Commonwealth   of

Pennsylvania’s Department of Transportation (“PennDOT”) to be the general

contractor for the construction of the Route 222 Bypass project (the “Project”). On

April 21, 2004, Balfour entered into a subcontract with H&K to perform certain

paving, subbase, and utility work for the Project. Although the terms of the

contract between Balfour and PennDOT required that the Project be completed by

September 18, 2006, significant delays pushed the eventual completion date back

to late 2007.

      On September 18, 2006 (the original date the Project was to be completed),

H&K filed a five-count complaint against Balfour in the Court of Common Pleas

of Montgomery County, Pennsylvania (“Haines I”), alleging, inter alia, that

Balfour’s failure to complete certain predecessor work with diligence caused H&K

to incur significant additional costs and other damages. Balfour removed Haines I

to the United States District Court for the Eastern District of Pennsylvania and

filed a motion to dismiss. On June 7, 2007, the District Court dismissed four of

H&K’s claims without prejudice and remanded the only remaining claim, one for

declaratory relief, back to state court.

      The District Court’s decision to dismiss certain counts of the Haines I

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complaint was based on its determination that, under the terms of the Subcontract,

H&K could not pursue its claims against Balfour unless (or until) Balfour first

sought compensation from PennDOT—a predicate event which had not yet

occurred. In reaching this decision, the District Court relied on Article 2.2.20 of the

Subcontract, explaining:

         The plain meaning of Article 2.2.20 is that any claim that the
         subcontractor [H&K] has for performing extra work or arising out of a
         delay or any other claim, whether it be against PennDot or [Balfour]
         must first be compensated by the Owner (PennDot) to the Contractor
         [Balfour] before [H&K] can bring suit against [Balfour].[1]

Haines & Kibblehouse, Inc. v. Balfour Beatty Constr., Inc., No. 2:06-cv-4807, slip

op. at 4 (E.D. Pa. June 7, 2007) (emphasis in original).

         Following entry of the dismissal order, H&K filed a motion for


1
    Article 2.2.20 provides in full:

         Condition Precedent. Contractor’s receipt of payment from Owner for each
         progress payment, final payment, change, extra work, delay, claim or each
         and every other request for payment or compensation by Subcontractor
         shall be an absolute condition precedent to any duty or obligation of
         Contractor to make any payment to Subcontractor pursuant to any
         application for payment or compensation. Such payment by Owner to
         Contractor is further an absolute condition precedent to Subcontractor filing
         or bringing against Contractor any action for nonpayment of any request for
         payment or compensation by way of arbitration, mediation, Federal or State
         Court action, or through any other forum for resolution of disputes.
         Contractor and Subcontractor hereby expressly acknowledge and agree that
         the Contractor’s surety is an intended third party beneficiary of the Article.
         In the event any action is asserted by Subcontractor against Contractor or
         its surety for nonpayment, this Article shall be a complete defense to
         nonpayment by Contractor and surety pending the occurrence of payment
         from Owner to Contractor.
                                               3
reconsideration and simultaneously requested permission to take an interlocutory

appeal. Both requests were denied. H&K then filed a Notice of Appeal with the

Third Circuit on August 22, 2007. Upon receipt of the Notice of Appeal, the Clerk

of Court instructed the parties to comment on the Court’s jurisdiction, and, more

specifically, to discuss whether the District Court had issued a final order subject

to appellate review. In a letter brief dated September 5, 2007, H&K responded that

the District Court’s dismissal was indeed final. H&K claimed that it was

“stand[ing] on the allegations in the [Haines I] Complaint” because there was “no

way for [it] to cure the ‘defect’ that the District Court found.” Further, H&K

claimed that the condition precedent, as the District Court defined it, “will never be

achieved” because Balfour has no legal avenue to seek compensation from

PennDOT for its own breach of the Subcontract. Accordingly, H&K asserted that it

“will never be able to re-file its Complaint.”

       On January 30, 2008, this Court issued an order stating its intention to

address the jurisdictional question during its review of the case on the merits. 2 The

Court, however, did not immediately issue a briefing schedule because the parties

were engaged in our Circuit’s mandatory mediation program. After nearly eight

2
  Although the Court determined that it was not appropriate to immediately dismiss the
appeal based on a jurisdictional defect, the Court cautioned that its decision did “not
represent a finding that the Court has jurisdiction to hear the appeal in this case.” Order,
Haines & Kibblehouse, Inc. v. Balfour Beatty Constr., Inc., No 07-3520 (3d Cir. Jan. 30,
2008).

                                             4
months of mediation, H&K sought to terminate the mediation process and to

proceed with its appeal. In response, this Court issued a briefing schedule.

       Before either party submitted an appellate brief, however, H&K voluntarily

dismissed its Haines I appeal and, in its place, filed a new (second) complaint in

the Montgomery County Court of Common Pleas (“Haines II”).3 H&K’s complaint

in Haines II named the same parties, asserted the same claims, and involved

exactly the same set of facts alleged in Haines I. On November 24, 2008, Balfour

removed Haines II to United States District Court for the Eastern District of

Pennsylvania, and then moved to dismiss based on claim preclusion and judicial

estoppel. Significantly, Balfour argued that H&K was barred by the doctrine of

judicial estoppel from claiming that the District Court had not issued a final order

in Haines I, particularly in light of H&K’s decision to stand on its complaint in the

Haines I appeal and its representations to this Court that it would “never” be able

to re-file its complaint.

       In response, H&K argued that its representations regarding the finality of the

District Court’s dismissal in Haines I were made before it discovered that Balfour
3
  H&K filed its complaint in Haines II on November 4, 2008, while Haines I was still
pending before the Third Circuit. On November 5, 2008 (the day after Haines II was
filed), H&K sent a two-sentence letter to the Office of the Clerk informally seeking to
“withdraw” its Haines I appeal. However, because this effort was procedurally improper,
the Court did not take any action on H&K’s request. Balfour subsequently moved to
dismiss the Haines I appeal on December 3, 2008. Acknowledging its mistake, H&K then
appropriately filed a motion to voluntarily dismiss its appeal, which this Court granted on
January 22, 2009. Thus, the two actions were pending concurrently for a period of at least
two-and-a-half months.
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had failed to include H&K’s claims in a complaint that Balfour had made to the

Pennsylvania Board of Claims on July 11, 2007 (the “Board of Claims

Complaint”), which H&K did not receive a copy of until September 17, 2007

(twelve days after it filed its jurisdictional letter brief in the Haines I appeal).

Balfour’s Board of Claims Complaint alleged that PennDOT caused Balfour to

incur additional costs and delays on the Project. The complaint, however, did not

mention H&K by name, assert H&K’s claims against PennDOT, or seek payment

for claims arising out of Balfour’s alleged breach of the Subcontract.

      H&K claims that only after reviewing the Board of Claims Complaint “and

thereafter conduct[ing] due diligence over a 12 month period” did it determine that

Balfour had waived its right to rely on Article 2.2.20 of the Subcontract. In its brief

opposing Balfour’s motion to dismiss, H&K claimed that this discovery was a

“watershed development” in the context of its Haines I appeal because it showed

that the condition precedent articulated in the District Court’s June 2007 Order had

not been met. This, H&K argued, “eviscerated the factual underpinnings” of the

June 2007 Order, thereby rendering that order moot.

      The District Court disagreed, and, on June 1, 2011, entered an order

dismissing the Haines II complaint based on judicial estoppel. Applying the three-

part test set out in Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. General

Motors Corp., 

, 319 (3d Cir. 2003), the District Court found that

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dismissal on the basis of judicial estoppel was appropriate because H&K took

irreconcilably inconsistent positions, acted in bad faith, and no lesser sanction was

appropriate. The Court rejected H&K’s argument that its discovery about the

contents of Balfour’s Board of Claims Complaint somehow permitted H&K to

abandon its Haines I appeal in favor of filing Haines II in state court. The Court

explained:

      H&K . . . argues that it changed its position when it allegedly learned
      that Balfour had filed a claim for compensation from PennDot without
      preserving H&K’s claims. But this later-acquired knowledge was of
      no significance because all that Balfour had done was precisely what
      H&K argued to the Court of Appeals Balfour would do—seek
      compensation for its own claims against PennDot without including
      H&K’s claims.

Haines & Kibblehouse, Inc. v. Balfour Beatty Constr., Inc., 

,

633 (E.D. Pa. 2011) (emphasis in original). H&K timely appealed.4

      The District Court had jurisdiction over this matter pursuant to 28 U.S.C. §

1332(a). This Court has appellate jurisdiction under 28 U.S.C. § 1291. A district

court’s decision to invoke the doctrine of judicial estoppel “is reviewed only for

abuse of discretion.” Montrose Med. Grp. Participating Sav. Plan v. Bulger, 

, 780 (3d Cir. 2001). “[A] court ‘abuses its discretion when its ruling is

4
 On June 15, 2011, H&K timely filed a motion asking the District Court to reconsider its
June 1, 2011 Order. While its motion for reconsideration was pending, H&K also filed a
Notice of Appeal of the June 1, 2011 Order, which is the subject of this appeal. This
Haines II appeal was then stayed pending the outcome of the motion for reconsideration,
which the District Court eventually denied by order dated November 19, 2012.

                                           7
founded on an error of law or a misapplication of law to the facts.’” 

re O’Brien, 

, 122 (3d Cir. 1999)).

      Three requirements must be satisfied before a district court may properly

apply the doctrine of judicial estoppel:

      First, the party to be estopped must have taken two positions that are
      irreconcilably inconsistent. Second, judicial estoppel is unwarranted
      unless the party changed his or her position “in bad faith—i.e., with
      intent to play fast and loose with the court.” Finally, a district court
      may not employ judicial estoppel unless it is “tailored to address the
      harm identified” and no lesser sanction would adequately remedy the
      damage done by the litigant’s misconduct.

Krystal 

–20 (quoting Montrose Med. 

) (emphasis in original). Additionally, the party to be estopped must have “a

meaningful opportunity to provide an explanation for its changed position.” 

We agree with the District Court that all the requirements for applying

estoppel have been met here.

      First, H&K took two irreconcilably inconsistent positions when it

emphatically argued in its Haines I appeal that it would “never be able to refile its

complaint,” but then—after Haines I languished on our docket for more than a year

and the parties engaged in a prolonged mediation process—proceeded to file a new

(and nearly identical) complaint in the Montgomery County Court of Common

Pleas. We are not persuaded by H&K’s attempt to square these inconsistent

positions by relying on its after-the-fact discovery that Balfour failed to assert

                                           8
H&K’s claims in its Board of Claims Complaint. As the District Court explained,

H&K could hardly have been surprised to learn the contents of Balfour’s Board of

Claims Complaint since Balfour did precisely what H&K told this Court in Haines

I Balfour would do—seek compensation only for its own claims.

       Second, the District Court did not abuse its discretion in finding that H&K

acted in bad faith. Although H&K received a copy of the Board of Claims

Complaint on September 17, 2007, it did not first seek to withdraw its Haines I

appeal until November 5, 2008. Thus, as the District Court pointed out, H&K had

knowledge of the contents of Balfour’s Board of Claims Complaint more than a

year before it first attempted to withdraw its appeal. H&K lamely suggests this

time was spent “review[ing] the Board of Claims Complaint” and “thereafter

conduct[ing] due diligence.” But we fail to see how H&K needed to conduct due

diligence over a twelve month period in order to understand how Balfour’s

complaint against PennDOT somehow impacted H&K’s rights.

      Further, the extended delay is not the only factor supporting an inference of

bad faith. As the District Court explained, H&K was motivated to drag its heels so

it could “avail[] itself of the benefits of pressure on Balfour” created by “a pending

appeal, the Third Circuit’s mandatory mediation program and the obtaining of a[n

appellate] briefing schedule.” These factors support the District Court’s imposition

of a rebuttable inference of bad faith. See Krystal 

321 (“[A] rebuttable inference of bad faith arises when averments in the pleadings

demonstrate both knowledge of a claim and a motive to conceal that claim in the

face of an affirmative duty to disclose.”) (citing Oneida Motor Freight, Inc. v.

United Jersey Bank, 

, 416–18 (3d Cir. 1988)).

      Finally, dismissal of Haines II is the appropriate sanction for H&K’s

conduct. We agree with the District Court that “any lesser sanction . . . would still

reward H&K for duplicitous conduct in the course of its appeals process” and

“[m]ore seriously, . . . would not compensate the [various] courts for their waste of

scarce judicial resources.”

      Finally, we are satisfied that H&K received a full and fair opportunity to be

heard, as it had multiple opportunities to address the issue of judicial estoppel

before the District Court. Although H&K argues it was entitled to an evidentiary

hearing on the issue of bad faith, “a district court need not always conduct an

evidentiary hearing before finding the existence of bad faith for judicial estoppel

purposes.” Montrose Med. 

n.5 (citations omitted). Here, the

record was sufficient for the District Court to conclude that H&K affirmatively

misrepresented its procedural position and “played fast and loose with the courts.”

Accordingly, we will affirm the District Court’s order dismissing the

complaint based on judicial estoppel.



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