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Robinson v. District of Columbia

United States District Court, District Circuit

January 29, 2014

MARK ROBINSON, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff Mark Robinson, an African-American, has sued the District of Columbia, alleging unlawful race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and unlawful retaliation under the District of Columbia Whistleblower Protection Act. Before the Court is defendant's motion to dismiss plaintiff's complaint as judicially estopped because plaintiff failed to disclose these causes of action during his now-closed bankruptcy proceeding.[1] For the reasons stated below, defendant's motion will be granted and the case will be dismissed.

BACKGROUND

The alleged discriminatory and retaliatory actions underlying plaintiff's complaint occurred between November 29, 2010 and July 30, 2013. ( See generally First Amd. Compl., Oct. 18, 2013 [Dkt. No. 11] ¶¶ 7-27.) Plaintiff filed complaints with the Equal Employment Opportunity Commission ("EEOC") in August and December of 2011 claiming discrimination and retaliation, respectively. ( Id. ¶ 28.) He received right-to-sue letters for his complaints on May 30 and June 25, 2013. (Notices of Right to Sue [Dkt. No. 14-3] at 1, 4.) He filed this action on August 27, 2013, seeking $750, 000 in damages. (Compl., Aug. 27, 2013 [Dkt. No. 1] at 7.)

According to his complaint, "[a]s a result of Defendant's actions against Plaintiff, [plaintiff]... suffered significant monetary losses, which led to his [and his wife's] filing of bankruptcy." (First Amd. Compl. at ¶ 29.) Plaintiff and his wife filed for bankruptcy on July 9, 2012, while both of plaintiff's complaints before the EEOC remained pending. In re: Mark E. Robinson & Kimberly A. Robinson, No. 12-22685, Dkt. 1 (Bankr. D. Md. July 9, 2012). In their joint and voluntary bankruptcy petition, plaintiff did not list the pending EEOC complaints as a personal asset under Item 21 on Schedule B, which required him to list and estimate the value of "[o]ther contingent and unliquidated claims of every nature...." ( Id. at 13.) Nor did he list the EEOC complaints on the Statement of Financial Affairs, which required him to "[l]ist all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case." ( Id. at 29.) Plaintiff declared under penalty of perjury that he had read the bankruptcy petition and that its contents were true and accurate. ( Id. at 35.) The Robinsons were represented by counsel (though not the counsel in this action) during these proceedings, and plaintiff states that "had [he] known that an EEOC filing would be relevant, [he] would have immediately disclosed that information." (Aff. of Mark Robinson, Jan. 20, 2014 [Dkt. No. 19-2] ¶ 7.)

Although plaintiff and his wife initially filed for bankruptcy under Chapter 13, they voluntarily converted the petition to one under Chapter 7 on February 11, 2013. In re: Mark E. Robinson & Kimberly A. Robinson, No. 12-22685, Dkt. 32 (Bankr. D. Md. Feb. 11, 2013). The U.S. Bankruptcy Court for the District of Maryland entered an order granting plaintiff and his wife a discharge on May 21, 2013, less than a week before the EEOC issued plaintiff his first right-to-sue letter. In re: Mark E. Robinson & Kimberly A. Robinson, No. 12-22685, Dkt. 52 (Bankr. D. Md. May 21, 2013). After the discharge, plaintiff disclosed this lawsuit to his bankruptcy attorney, who informed him that the suit "did not matter as a bankruptcy discharge had already been issued." (Robinson Aff. ¶ 8.)

In September of 2013, plaintiff received a correspondence from the bankruptcy trustee regarding "additional potential assets" and assumed that the trustee was referring to this action. ( Id. ¶ 9.) Plaintiff attempted to contact the trustee multiple times to confirm his assumption, but was referred to his bankruptcy attorney. ( Id. ) On October 22, 2013, the bankruptcy trustee submitted a "No Distribution Report, " indicating that there was no property available for distribution to creditors and stating that the total claims scheduled to be discharged without payment amounted to $967, 633.69. In re: Mark E. Robinson & Kimberly A. Robinson, No. 12-22685, Dkt. 61 (Bankr. D. Md. Oct. 22, 2013). Two days later, the bankruptcy court issued a final decree that the estate had been "fully administered, " discharging the trustee and closing the case. In re: Mark E. Robinson & Kimberly A. Robinson, No. 12-22685, Dkt. 62 (Bankr. D. Md. Oct. 24, 2013).

Defendant argues that plaintiff should be judicially estopped from bringing this complaint pursuant to Moses v. Howard University Hospital, 606 F.3d 789 (D.C. Cir. 2010), because he did not list the underlying causes of action on his bankruptcy petition or otherwise disclose the causes of action during the bankruptcy proceedings. (Mot. at 2.) Plaintiff declares that "[a]t no time was [he] trying to hide any information or mislead anyone with regard to this law suit" (Robinson Aff. ¶ 10), and that he "will gladly reopen the bankruptcy case to include this case if necessary and ha[s] been made aware that any debtors from the bankruptcy case could come after any judgment or recovery in this case." ( Id. ¶ 11.)

LEGAL STANDARD

I. MOTION TO DISMISS

Defendants concede that the factual allegations in plaintiff's amended complaint "allege viable causes of action under Title VII... and the District of Columbia Whistleblower Protection Act" (Mot. at 1), but argue that the allegations also establish that judicial estoppel bars those claims. ( Id. at 1-2.) When ruling on a motion to dismiss pursuant to Rule 12(b)(6), courts must assume the veracity of all "well-pleaded factual allegations" contained in the complaint and draw all reasonable inferences in plaintiff's favor. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); see also Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). In so doing, a court is not limited to the facts alleged in the complaint, but also may consider documents attached to or incorporated by reference in the complaint, matters about which the court may take judicial notice, and any documents appended to a motion to dismiss whose authenticity is not disputed, if they are referred to in the complaint and are integral to a claim. U.S. ex rel. Folliard v. CDW Tech. Servs., Inc., 722 F.Supp.2d 20, 24 (D.D.C.2010); see also Fed.R.Civ.P. 10(c). For the purposes of this case, the Court also will consider - and presume the veracity of - the contents of plaintiff's January 20, 2014 affidavit, which the Court requested by its January 6, 2014 Order.[2]

II. BANKRUPTCY CODE'S DUTY TO DISCLOSE

Section 521 of the Bankruptcy Code requires a debtor to file "a schedule of assets and liabilities; a schedule of current income and current expenditures; [and] a statement of the debtor's financial affairs." 11 U.S.C. § 521(a)(1)(B). Pending and potential causes of action are assets that must be scheduled under section 521. See Eubanks v. CBSK Financial Grp., Inc., 385 F.3d 894, 897 (6th Cir. 2004); In re Coastal Plains, Inc., 179 F.3d 197, 208 (5th Cir.1999). Thus, "a debtor is under a duty both to disclose the existence of pending lawsuits when he files a petition in bankruptcy and to amend his petition if circumstances change during the course of the bankruptcy." Moses, 606 F.3d at 793. "Viewed ...


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