Lennix v. Allied Universal Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

OPAL JEAN LENNIX CIVIL ACTION

VERSUS NO. 20-2755

ALLIED UNIVERSAL SECURITY SECTION: “G”(1)

ORDER AND REASONS

Pending before the Court is “Defendant Allied Universal’s Motion to Dismiss.”1 The

pending motion was set for submission on March 10, 2021.2 Pursuant to Local Rule 7.5,

opposition to a motion must be filed eight days before the noticed submission date. To date, pro

se Plaintiff Opal Lennix (“Plaintiff”) has filed no opposition and therefore the motion to dismiss

is deemed to be unopposed. This Court has authority to grant a motion as unopposed, although

it not required to do so.3 Considering the motion, the memorandum in support, the record, and

the applicable law, the Court denies the motion and grants Plaintiff until May 3, 2021 to amend

the Complaint.

I. Background

On October 12, 2019, Plaintiff filed a Chapter 13 Voluntary Petition in the Bankruptcy

Court for the Eastern District of Louisiana (the “Bankruptcy Petition”).4 On December 23,

1 Rec. Doc. 10.

2 Id.

3 Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 356 (5th Cir.1993).

4 In re Opan Jean Lennix, 19-12786 (Bankr. E.D. La. 2019), Rec. Doc. 1. See also Norris v. Hearst Tr., 500 F.3d

454, 461 n. 9 (5th Cir. 2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters

of public record.”).

2020, the bankruptcy case was closed.5

On October 7, 2020, Plaintiff filed a “Complaint for Employment Discrimination” in

this Court, asserting claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12112–

12117 (“ADA”).6 In the Complaint, Plaintiff alleges that she is employed by Defendant Allied

Universal (“Defendant”).7 Plaintiff further alleges that Defendant discriminated against her on

the basis of her medical conditions of vertigo and hearing loss.8 Plaintiff claims that Defendant

failed to hire Plaintiff, terminated her employment, failed to accommodate her disability,

subjected her to unequal terms/conditions of employment, and retaliated against her.9 In the

Complaint, Plaintiff states that she filed a claim regarding the alleged discrimination by

Defendant with the Equal Employment Opportunity Commission or her Equal Employment

Opportunity counselor on November 19, 2019.10 Plaintiff seeks damages.11

Defendant filed the instant motion to dismiss on February 1, 2021.12 The instant motion

was noticed for submission on March 10, 2021.13 Plaintiff has not filed an opposition to the

instant motion.

5 In re Opan Jean Lennix, 19-12786 (Bankr. E.D. La. 2019), Rec. Doc. 44.

6 Rec. Doc. 1.

7 Id. at 3.

8 Id. at 4.

9 Id.

10 Id. at 5.

11 Id. at 6.

12 Rec. Doc. 10.

13 Id.

II. Parties’ Arguments

In the instant motion, Defendant seeks dismissal of Plaintiff’s claims pursuant to

Federal Rule of Civil Procedure 12(b)(6).14 Defendant argues that Plaintiff’s claims are barred

by the doctrine of judicial estoppel because they were not disclosed by Plaintiff in her Chapter

13 Bankruptcy proceeding.15 Specifically, Defendant argues that Plaintiff was required to

disclose to the bankruptcy court any claims she had against third parties.16 Defendant claims

that Plaintiff “filed for bankruptcy just days after being terminated” from her employment with

Defendant and during the pendency of bankruptcy proceedings, Plaintiff “actively pursued

claims against [Defendant] with the [Equal Employment Opportunity Commission] and

demanded money from [Defendant].” 17 According to Defendant, dismissal is warranted

pursuant to the judicial estoppel doctrine because (1) Plaintiff unequivocally asserted a position

in this action inconsistent with her prior filings in her bankruptcy proceeding; (2) the

bankruptcy court accepted Plaintiff’s filings; and (3) Plaintiff cannot reasonably claim to have

acted inadvertently.18

Plaintiff has not filed any opposition to the instant motion.

III. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

14 Id.

15 Id.

16 Id. at 7.

17 Id.

18 Id. at 7–9.

failure to state a claim upon which relief can be granted.”19 A motion to dismiss for failure to

state a claim is “viewed with disfavor and is rarely granted.”20 “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief

that is plausible on its face.”21

The “[f]actual allegations must be enough to raise a right to relief above the speculative

level.”22 The complaint need not contain detailed factual allegations, but it must offer more than

mere labels, legal conclusions, or formulaic recitations of the elements of a cause of action.23

That is, the complaint must offer more than an “unadorned, the defendant-unlawfully-harmed-

me accusation.”24

Although a court must accept all “well-pleaded facts” as true, a court need not accept

legal conclusions as true.25 “[L]egal conclusions can provide the framework of a complaint,

[but] they must be supported by factual allegations.”26 Similarly, “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements” will not suffice.27 If

the factual allegations are insufficient to raise a right to relief above the speculative level, or an

19 Fed. R. Civ. P. 12(b)(6).

20 Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))

(internal quotation marks omitted).

22 Twombly, 550 U.S. at 555. Put another way, a plaintiff must plead facts that allow the court to draw a “reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

23 Iqbal, 556 U.S. at 678.

24 Id.

25 Id. at 677–78.

26 Id. at 679.

27 Id. at 678.

“insuperable” bar to relief exists, the claim must be dismissed.”28

A court considering a motion to dismiss “must limit itself to the contents of the

pleadings, including attachments thereto.”29 Attachments to a motion to dismiss are, however,

“considered part of the pleadings” if “they are referred to in the plaintiff’s complaint and are

central to her claim.”30 “In so attaching, the defendant merely assists the plaintiff in establishing

the basis of the suit, and the court in making the elementary determination of whether a claim

has been stated.”31 In addition, a court may consider matters of which judicial notice may be

taken.32

IV. Analysis

Defendant argues that Plaintiff’s claims are barred by the doctrine of judicial estoppel

because they were not disclosed in Plaintiff’s Chapter 13 Bankruptcy Petition.33 Plaintiff has

not filed any opposition to the instant motion. This Court has authority to grant a motion as

unopposed, although it not required to do so.34

“Judicial estoppel is a common law doctrine that prevents a party from assuming

inconsistent positions in litigation.”35 Judicial estoppel functions “to protect the integrity of the

28 Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010

WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).

29 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).

30 Id. at 498–99 (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993))

(internal quotation marks omitted).

31 Carter v. Target Corp., 541 F. App’x 413, 416–17 (5th Cir. 2013) (quoting Collins, 224 F.3d at 498–99).

32 U.S. ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 2003)

33 Rec. Doc. 10.

34 Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 356 (5th Cir.1993).

35 Primary P & I Underwriters (In re Superior Crewboats, Inc.), 374 F.3d 330, 334 (5th Cir. 2004).

judicial process”, by “prevent[ing] parties from playing fast and loose with the courts to suit the

exigencies of self interest.”36 The Fifth Circuit has applied judicial estoppel to bankruptcy

proceedings and explained the rationale for invoking judicial estoppel to prevent a party who

failed to disclose a claim in bankruptcy proceedings from asserting that claim after emerging

from bankruptcy.37 The Fifth Circuit explained “that the integrity of the bankruptcy system

depends on full and honest disclosure by debtors of all of their assets.”38 Under Fifth Circuit

precedent, judicial estoppel has three elements: “(1) The party against whom it is sought has

asserted a legal position that is plainly inconsistent with a prior position; (2) a court accepted

the prior position; and (3) the party did not act inadvertently.”39 The Court analyzes each

element in turn.

A. Whether Plaintiff has Asserted a Legal Position Plainly Inconsistent with a Prior

Position

Defendant argues that Plaintiff has asserted a legal position plainly inconsistent with her

prior filings in the bankruptcy proceeding by failing to disclose during the bankruptcy

proceeding that she intended to pursue potential claims against Defendant in this action.40

“[T]he Bankruptcy Code and Rules impose upon bankruptcy debtors an express, affirmative

duty to disclose all assets, including contingent and unliquidated claims.”41 Schedule A/B of the

36 In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999) (quoting Brandon v. Interfirst Corp., 858 F.2d 266,

268 (5th Cir. 1988)).

37 Id. at 208.

38 Id. (quoting Rosenshein v. Kleban, 918 F.Supp. 98, 104 (S.D.N.Y.1996)).

39 Allen v. C&H Distributors, LLC, 813 F.3d 566, 572 (5th Cir. 2015).

40 Rec. Doc. 10-1 at 7.

41 Browning Mfg. v. Mims (In re Coastal Plains, Inc.), 179 F.3d 197, 207–08 (5th Cir. 1999).

“Voluntary Petition for Individuals Filing for Bankruptcy” asks bankruptcy filers to disclose

“claims against third parties, whether or not [the filer] ha[s] filed a lawsuit or made a demand

for payment.”42

In the Schedule A/B form attached to the Bankruptcy Petition, Plaintiff stated that she

had a possible employment discrimination suit against her former employer FedEx.43 However,

Plaintiff did not state that she had a possible claim against Defendant.44 Although this case was

filed after Plaintiff filed for bankruptcy, the Fifth Circuit has held that “[t]he duty of disclosure

in a bankruptcy proceeding is a continuing one, and a debtor is required to disclose all potential

causes of action.”45 Moreover, in the Complaint, Plaintiff states that she filed a claim regarding

the alleged discrimination by Defendant with the Equal Employment Opportunity Commission

or her Equal Employment Opportunity counselor on November 19, 2019, while her bankruptcy

proceeding was pending.46 Because the instant litigation is “plainly inconsistent” with her

position in the bankruptcy proceeding, the first element of judicial estoppel is satisfied.

B. Whether a Court Accepted the Prior Position

Defendant contends that the bankruptcy court accepted Plaintiff’s prior position when

her Chapter 13 bankruptcy petition was reviewed.47 The Fifth Circuit has held that a bankruptcy

court accepts a debtor’s position when it relies on the debtor’s asset schedules and confirms the

42 Rec. Doc. 10-2 at 34.

43 Id.

44 Id.

45 Coastal Plains, 179 F.3d at 208 (internal citation omitted).

46 Rec. Doc. 1 at 5.

47 Rec. Doc. 10-1 at 8.

debtor’s bankruptcy plan.48 In this case, the bankruptcy court held a hearing on confirmation of

Plaintiff’s Chapter 13 bankruptcy plan and subsequently issued an order denying confirmation

of Plaintiff’s bankruptcy plan, stating that it had “considered the merits of the Plan.”49

Therefore, the second element of judicial estoppel appears to be satisfied because the

bankruptcy court reviewed and relied on Plaintiff’s schedules before denying confirmation of

her bankruptcy plan.

C. Whether Plaintiff Acted Inadvertently

Defendant asserts that Plaintiff “cannot reasonably claim” to have acted inadvertently in

failing to disclose her possible claim against Defendant in the bankruptcy proceeding.50 Judicial

estoppel does not apply if Plaintiff acted inadvertently.51 Inadvertence can be established by

showing “either that [Plaintiff] did not know of the inconsistent position or that [Plaintiff] had

no motive to conceal it from the court.”52 The Fifth Circuit has found that “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.”53

To prove lack of knowledge, Plaintiff must show that she was unaware of the facts

48 See, e.g., Jethroe v. Omnova Sols., Inc., 412 F.3d 598, 600 (5th Cir. 2005); In re Flugence, 738 F.3d 126,

130 (5th Cir. 2013) (holding that the judicial acceptance element was satisfied when “the bankruptcy court accepted

the prior position by omitting any reference to the personal-injury claim in the modified plan” because “[h]ad the

court been aware of the claim, it may well have altered the plan”).

49 In re Opan Jean Lennix, 19-12786 (Bankr. E.D. La. 2019), Rec. Doc. 31.

50 Rec. Doc. 10-1 at 9.

51 Allen, 813 F.3d at 573.

52 Jethroe, 412 F.3d at 600–01.

53 Love v. Tyson Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012) (quoting Thompson v. Sanderson Farms, Inc., No.

3:04CV837–WHB–JCS, 2006 U.S. Dist. LEXIS 48409, at *12–13 (S.D. Miss. May 31, 2006)).

giving rise to her claim. Plaintiff has not provided any briefing in response to Defendant’s claim

that she is judicially estopped from asserting her claims in the instant action. In the instant

motion, Defendant argues that “Plaintiff was undeniably aware of the duty to disclose lawsuits

on her financial disclosure forms as she disclosed the potential claims she had against her

former employer, FedEx.”54 As discussed above, representations made by Plaintiff in the

Complaint demonstrate that Plaintiff may have been aware of her claim against Defendant on

November 19, 2019 while the bankruptcy proceeding was ongoing. However, considering

Plaintiff’s pro se status and because Plaintiff did not address judicial estoppel in the Complaint,

the Court grants Plaintiff leave to amend the Complaint to address whether she acted

inadvertently in failing to disclose this claim during the pendency of the bankruptcy

proceedings.

V. Conclusion

Considering the foregoing reasons,

IT IS HEREBY ORDERED that is “Defendant Allied Universal’s Motion to

Dismiss”55 is DENIED.

54 Rec. Doc. 10-1 at 9.

55 Rec. Doc. 10.

IT IS FURTHER ORDERED that Plaintiff Opal Lennix is granted leave to amend the

Complaint by June 4, 2021 to allege facts pertinent to the applicability of the judicial estoppel

doctrine in this case. If Plaintiff fails to amend the Complaint, or if the amendment does not

cure the deficiencies identified in this Order, Defendant is granted leave to file a second motion

to dismiss.

NEW ORLEANS, LOUISIANA, this !4th day of May, 2021.

DV \esrette )olwweit. Brow

NANNETTE JQLIVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT