Petition for Writ of Certiorari — Timothy Weakley, Petitioner v. Eagle Logistics, et al.

ORGN A 1

18-65

Supreme Court, U.S.

FILED

94

NOV 112018

No. 18-

OFFICE OF THE CLERK

In The

Supreme Court of The United States

0 --------------------------------Timothy Weakley,

Petitioner,

V.

Jennifer Roberts, Quality Companies, Inc., Celadon Trucking Services

Inc. and Eagle Logistics, Inc.

Respondents.

-Il

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

U

Timothy Weakley

Pro se

414 East Mountain View Rd.

Apt. 503

Johnson City, Tn. 37601

(423)797-0096

timothyweakley@yahoo.com

RECEIVED

NOV 1 62018

OFFICE OF THE CLERK

SUPREME COURT, U.S.

PREFACE TO QUESTIONS PRESENTED

Our courts of appeals appear divided and confused

on the question of judicial estopple with respect to

when and how to apply the doctrine. The Eleventh

Circuit Court of Appeals has added two additional

caveats to that growing list of divisions. As it stands,

the Eleventh Circuit's opinion in this case supersedes

this Court's holding in New Hampshire v. Maine by:

(1) disregarding the facial requirement that a

previous position under oath he captured somewhere

within the record in order to establish a prima fade

claim for judicial estopple. (2) dismissing a plaintiff's

consistent position rather than his inconsistent

position. And so the very specific question presented

to the Court are:

II

QUESTIONS PRESENTED

Whether a district court within the context of a

judicial estopple claim exceeds the boundaries of

judicial discretion when it dismisses plaintiffs

position rather than the 2'/ inconsistent position

contrary to New Hampshire v. Maine.

And Whether it is a violation of due process when a

district court wrongly dismisses plaintiffs

1s1/consistent position rather than his 2nd and clearly

inconsistent position pursuant to a judicial estopple

action, particularly where there has been prior

inconsistent positions taken under oath.

111

Page

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................i

CORPORATE DISCLOSURE STATEMENT

vi

LIST OF PARTIES ..................................vi

TABLE OF AUTHORITIES .................................v

OPINIONS BELOW .............................................1

JURISDICTION ...................................................1

STATUTORY PROVISIONS INVOLVED

1

STATEMENT OF THE CASE..............................2

REASONS FOR GRANTING THE PETITION.

...

4

I. New Hampshire v. Maine recognized judicial

estoppel is meant to prevent a civil plaintiff from

taking and benefiting from his 2nd and

inconsistent position in a related legal matter by

punitively foreclosing on said 1st position, not the

1st position as was erroneously done in this

case..........................................................5

lv

New Hampshire clearly establishes a

delineation between a plaintiffs 1st

position and his 2nd position.

The lower court erred when it dismissed

Mr. Weakley's 1st position rather than his

inconsistent position. The court's err raises

V and XW amendment due process claims.

The Eleventh Circuit Has Effectively Overruled This

Court's Precedent Held In New Hampshire v. Maine.

TABLE OF CONTENTS

-

Continued

SUMMATION..........................................10

PLEA FOR RELEIF.......................................10

CONCLUSION...............................................10

APPENDIX

Section A- The Appeals Court

Court of Appeals Order To Consolidate December 15,

2017 ...............................................................Part 1

Court of Appeals Opinion filed June 29, 2018

............................Part2

LTA

Page

Court of Appeals Final Judgment Entered June 29,

2018......................................................Part 3

Court Of Appeals Order Denying Appellant's Motion

To Be Heard filed September 13, 2018.......Part 4

Court Of Appeals Motion To Consolidate Filed

December 12, 2017..................................Part 5

Appeals Court Opinion Filed June 29, 2018

............................................................... Part 6

Appellate Court' Final Judgment File...............Part 7

Section B- Lower Court Case # 3:1 cv-00403-HNJ

Lower Court's Memorandum Opinion And Dismissal

Order.........................................................Part 1

Lower Court's Final Judgment Filed August 31, 2017

...........................Part2

Section C- Lower Court Case # 3:16 cv-00205-HNJ

Lower Court's Memorandum Opinion And Dismissal

Order.........................................................Part 1

Lower Court's Final Judgment Filed August 31, 2017

...........................Part2

vi

STATUTES

28 U.S.C. § 1254(1) ....................................Page 1

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6 Petitioner

Timothy Weakley has no corporate interest to disclose

to the court.

LIST OF PARTIES

This document is compliant with Rule 12.6 and lists

all parties involved on the front cover.

vii

Page

OPINIONS BELOW

The Eleventh Circuit's order summarily affirming the

district court is published and found Section A, Part 2

and Section A, Part 6. The Eleventh Circuit's order

denying Mr. Weakley's petition for rehearing en bane

is unpublished and appears at Section A, Part 4. The

district court's order granting defendant's motion for

summary judgment and order are unpublished and

appear at Section B, Part 1 and Section C, Parti. The

district court's order granting defendant's motion for

attorney's fees is unpublished and appears at Section

B, Part 1 and Section C, Parti.

JURISDICTION

The Eleventh Circuit entered its order affirming the

district court on June 28, 2018. Section A, Parts 4 and

6. A timely petition for rehearing en bane was denied

by the Eleventh Circuit on September 13, 2018. Section

A, Part 4. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

U ---------------------------------

CONSTITITIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendments V and XIV "No person shall. be

deprived of life, liberty, or property, without due

process of law.

-

.

.

.

.

2

STATEMENT OF THE CASE

Succinctly stated, New Hampshire v. Maine, 532 U.S.

742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) has one

primary function under the law. And that primary

function is to estop a civil plaintiff from asserting a 2nd

and inconsistent position that factually diverges from

a previous position he has already taken on the same

legal matter while under oath.

The Eleventh Circuit's ruling in this case has

effectively overridden the precedent announced in New

Hampshire by allowing Mr. Weakley's 2' 1/inconsistent

position to survive, while instead, foreclosing on his

consistent positions. And also, by reaching a finding

that Mr. Weakley made a prior inconsistent statement

while under oath without proffering any alleged "prior

or inconsistent" position taken while under oath for

examination. It is pure fiction in theory based on bad

law as we will find herein. The lower court does

however make reference to Mr. Weakley's

discrepancies contained within his bankruptcy

schedules. But, that would mean that the district court

relied on a "future" inconsistent statement rather than

a "prior" inconsistent position [selahi. And as such, the

instant case's holding comports to the complete

antithesis of New Hampshire, and that fact is the

bedrock issue upon which this case turns. Begging the

question of this High Court, which position survives?

The Pt /consistent position, or, the 2nd! inconsistent

91

position when juxtaposed against New Hampshire.

Moreover, in New Hampshire its made clear that the

inconsistent position is the culprit due the adverse

action should any be taken by a court.

This Court set forth very clear factors to be considered

in the application of judicial estoppel on a

straightforward boundary dispute where New

Hampshire took a position in litigation against Maine

that was inconsistent with the position New

Hampshire had taken in an earlier dispute over the

same boundary. New Hampshire v. Maine, 532 U.S.

742, 749-50 (2001). The case was a model case for

judicial estoppel warranting application to bar New

Hampshire from taking a position that contradicted

the very position it had succeeded upon in the litigation

years earlier. Allowing the state to take an adverse

position after it succeeded on the first consistent

position would call into question the "integrity of the

judicial process [and judicial estoppel is intended to

prohibit] parties from deliberately changing positions

according to the exigencies of the moment." New

Hampshire, 532 U.S. at 749-50.

IN A NUTSHELL

In a nutshell, New Hampshire v. Maine bars Mr.

Weakley from taking an inconsistent position while

under oath. The Eleventh Circuit's ruling in this case

overrides the New Hampshire holding by actually

allowing Mr. Weakley to successfully take an

inconsistent position in his bankruptcy claim which

commenced well after he had already established a

previous position in the district court pursuant to the

underlying breach of contract claims that he had

already filed against these defendants.

BACKGROUND

In late 2015 Mr. Weakley brought a breach of

contract claim pro se against Eagle Logistics Inc. in

Lauderdale County, Alabama Circuit Court; Eagle

being one of the co- defendants in this consolidated

appeal. Counsel for Eagle then lawfully removed to

the proper federal venue based on diversity and the

amount at controversy. It was at that time that Mr.

Weakley commenced a second complaint against

Eagle's parent company Celadon Trucking Service

Inc. and its sister company Quality Companies Inc.

along with Jenifer Roberts also, alleging breach of

contract in the court below.

Subsequently, there came a point and time wherein

each of the defendants moved for summary judgement

alleging that Mr. Weakley had failed to disclose the

existence of the claims he owned against them within

his schedule of assets pursuant to his bankruptcy

claim. Exculpatory in nature is the fact of record that

Mr. Weakley's bankruptcy claim commenced [well

after] he brought the district court claims against

5

each of the defendants respectively; and based on that

"smoking gun" of a fact, Mr. Weakley should be

exonerated and his claims in the lower court restored

[emphasis added]. Digressing. Procedurally these

cases were consolidated as to avoid an inconsistent

verdict. Regardless, the district court granted each

motion for summary judgment citing New Hampshire

as precedent along with three other very obscure

cases that when placed in proper context [infra pages

12 and 131, comport to quintessential bad law,

particularly when examined underneath the bright

antiseptic light of New Hampshire. Mr. Weakley then

filed timely appeals with the Eleventh Circuit.

However, the appeals court affirmed per curiam each

of the lower court's decisions. Nevertheless, Mr.

Weakley then filed a timely motion to be reheard

wherein he raised the issue that the district court

took action upon the wrong claims in opposition to

New Hampshire but it fell on deaf ears going

unheard. Mr. Weakley now makes appearance before

this Honorable Court seeking redress.

REASONS FOR GRANTING THE PETITION

This case presents with a very critical issue of

importance regarding the viability of a civil plaintiff's

initial consistent position and the relief obtained

pursuant to said position within the context of a

judicial estopple claim. And whether a district court

rs

may take adverse action against a plaintiff's consistent

position.

This Court's decision in New Hampshire v. Maine

clearly holds that a civil plaintiff may not take ,a

2'/inconsistent position based on the exigencies of the

moment. This point is well established in law per New

Hampshire. Further, New Hampshire makes it even

more evident that it is plaintiff's inconsistent position

that should be the subject of any dismissal or adverse

action, not plaintiff's 1st position as decided by the

lower court. The precedent established in this case, if

allowed to stand, will all but overrule the precedent

contained in New Hampshire.

I. New Hampshire v. Maine Recognized Judicial

Estoppel Is Meant To Prevent A Civil Plaintiff

From Taking And Benefiting From His 2nd And

Inconsistent Position In a Legal Matter By

Punitively Foreclosing On Said 2nd Position, Not

The 1st Position As Was Erroneously Done In This

Case.

In New Hampshire v. Maine, 532 U.S. 742 (2001), this

Court analyzed the doctrine of judicial estoppel

recognizing it was a rule that "generally prevents a

party from prevailing in one phase of a case on an

argument and then relying on a contradictory

7

argument to prevail in another phase." New

Hampshire, 532 U.S. at 749 (internal citations

omitted).

This Court recognized the inequity of allowing a party

to change its position based upon its circumstance,

particularly at the detriment of a party who acquiesced

as a result of the 1st position taken, declaring:

[W]here a party assumes a certain position in

a legal proceeding, and succeeds in

maintaining that position, he may not

thereafter, simply because his interests have

changed, assume a contrary position,

especially if it be to the prejudice of the party

who has acquiesced in the position formerly

taken by him.

Id. at 749 (citing Davis v. Wakelee, 156 U.S. 680, 689,

15 S. Ct. 555, 39 L. Ed. 578 (1895). Neither the Appeals

Court, the Lower Court or ither of the Defendants has

demonstrated within the confines of the record that the

Defendants have acquiesced in the least with respect

to Mr. Weakley's 1st position. The record does however

indicate that these Defendants have conceded nothing,

and have fought Mr. Weakley like rabid dogs at every

opportunity. There is not a drop of acquiesces to be

found anywhere herein case [emphasis added].

More on point, this Court judicially estopped New

Hampshire based on its clearly inconsistent

statements in two litigation matters on the same

subject. Despite New Hampshire's bad acts, this Court

did not arbitrarily or capriciously take retroactive

action against the relief New Hampshire obtained

pursuant to the (1977) decent decree in order to punish

them. No, instead, this Court barred New Hampshire's

motion for summary judgment contained within the

state's 2nd/inconsistent position. And therein lies the

fundamental guidance provided within the legal

framework of New Hampshire. Summarily, this Court

has held that a plaintiffs consistent or 1st position

naturally survives, while the 2nd/inconsistent position

is then ripe for adverse action as demonstrated in the

New Hampshire outcome.

Regardless, the Eleventh Circuit has continued to

operate under the guidance of bad law that was

abolished upon this Court's decision in New

Hampshire. Holding our mule on that argument in the

meantime. New Hampshire's precedent holds that

retroactive action was not taken against New

Hampshire and likewise should not be taken against

Mr. Weakley's 1stl consistent position. Such an

undertaking clearly overrides New Hampshire.

It is important to note that this is where the lower

court has exceeded its discretion. There is not a

scintilla of precedent held under New Hampshire that

the district court could have relied on in order to

dismiss Mr. Weakley's first positions.

A. New Hampshire clearly recognizes the legal

ramifications of a plaintiffs 1st position and

his 2' position.

Hypothetically, had this Court subscribed to the

District Court's legal rationale that it employed

in this case when this Court adjudicated New

Hampshire: (1) this Court would have been

compelled to vacate the parties three-decade old

decent decree (2) and then this Court would have

had to aptly acquiesce to New Hampshire's 2nd

position as was done in the instant matter.

"Where a party assumes a certain position

in a legal proceeding, and succeeds in

maintaining that position, he may not

thereafter, simply because his interests

have changed, assume a contrary position.

New Hampshire v. Maine, 532 U.S. 742,

749 (2001).

."

The record clearly indicates that Mr. Weakley

took his first position in the district court

pursuant to the initial breach of contract claims,

and "thereafter" several months later during the

course of his bankruptcy took an alleged

"contrary" position in the form of an inadvertent

omission.

That omission prompted each of these

defendants to motion for dismal in the district

court, albeit while the issue of inconsistency was

over in the bankruptcy court across the hail in

another judges court. In reality, the real party in

interest, for lack of better terminology, is the

bankruptcy court because that is where the

alleged inconsistent position was taken, much

10

akin to the summary judgment sought by New

Hampshire, not in the district court where the

motions to dismiss were filed. Jurisdiction in

matters such as these seemingly rest with the

court wherein the inconsistent position is taken.

But these defendants had no business before the

bankruptcy court because they were not creditors

within that bankruptcy claim. So they duped the

district court with motions for summary

judgment. No disrespect meant, but the

magistrate in the cases below had been on the

bench less that three weeks. This case bears proof

that the court may have stepped in it with respect

to these cases while trying to get up to speed

while underneath a mountain of back logged

cases.

Any adverse action taken should have occurred

in the court where the inconsistent position was

recorded pursuant to New Hampshire. The fact

that the district court took the adverse action

raises a lack of jurisdiction claim.

Typically, these sort of estopple claims setup

with the civil plaintiff filing a bankruptcy. That

bankruptcy claimant then somehow manages not

to disclose the existence of a potential cause of

action. Then after gaining some sort of relief

within the bankruptcy court, claimant brings a

legal complaint for damages based on that asset

of that he failed to disclose in his bankruptcy

schedules. Then at that point the defendant

11

motions for dismissal based on his discovery

omission.

BAD FACTS

The facts in this case are bad and do not comport

to a prima facie argument for estopple because:

(1) Mr. Weakley's breach of contract claims were

filed prior to his omissions within his bankruptcy

schedules. (2) The motions to dismiss were not

filed in the court where the inconsistent position

occurred thus creating jurisdiction issues. (3)

Most importantly, the district court wherein Mr.

Weakley was estopped, cannot and did not, cite a

previous position taken by Mr. Weakley while

under oath.

B. The lower court erred when it dismissed Mr.

Weakley's 1st position rather than his

inconsistent position. The court's err raises V

and XIV amendment due process claims.

When the lower court dismissed Mr. Weakley's

protected 1st positions which were his breach of

contract claims valued somewhere north of

several million dollars, it effectively seized his

property. Under New Hampshire it is boldly

evident that the 2nd/ inconsistent position is

where the lower court's concern should have lied.

However, the district court had no jurisdictional

authority in the venue were the inconsistent

position was actually taken. And so here is where

the constitutional infringement occurs. The lower

court essentially strong-armed Mr. Weakley's

12

N

property based on a faulty legal premise that was

abolished nearly two decades ago by New

Hampshire. Bad law was adhered to by the lower

court

C. The District Court In Its Memorandum In

Both Cases Cites Three Decisions As Grounds

For Estopping Mr. Weakley. Scoggins,

Chandler And Traylor. However, Those

Decisions Have Been Bad Law Every Since

This Court gave Us New Hampshire.

UJWAAA

Often times one must examine the weaknesses that

exist within his case. In this instance the weak point

is the citations that the district court relied on for

authority and precedent as noted within the

petitioner's appendix at page 6 of 13 in the district

court's memorandum opinion and dismal order:

"Following the Eleventh Circuit's lead,

district courts have applied the judicial

estoppel doctrine in circumstances where

plaintiffs filed lawsuits in federal court and

subsequently filed bankruptcy petitions or

supplements. Traylor v. Gene Evans Ford,

LLC, 185 F. Supp. 2d 1338, 1340 (N.D.Ga.

2002)(plaintiff filed lawsuit and then filed

bankruptcy schedule stating he was not

participating in any lawsuits); Scoggins v.

Arrow Trucking Co., 92 F. Supp. 2d 1372,

1376 (S.D.Ga. 2000) (plaintiff demanded

13

payment from alleged tortfeasor following car

accident, then filed for bankruptcy in which

he stated he did not have any claims, and then

filed suit against alleged tortfeasor);

Chandler v. Samford Univ., 35 F. Supp. 2d

861, 863-65 (N.D.Ala. 1999) (plaintiff filed an

EEOC complaint and then filed bankruptcy

schedule stating that he did not have any

unliquidated claims)."

Trek. The Scoggins case cited above was decided in

(2000) and thus "precedes" the holding in New

Hampshire. Likewise, the Chandler case cited by

the lower court also was decided even earlier than

that back in (1999). But then, [emphases added] in

(2002) New Hampshire came down from this High

Court wherein this Court provided good law.

Meanwhile, the Eleventh Circuit proves that it is

not possible to teach an old dog new tricks, because

it failed to observe or adhere to New Hampshire

and its guidance. Case and point, the Traylor case

which the district court stood on.

Traylor was filed January 23, (2002,) while New

Hampshire was filed on May 29, (2001). This fact

affirmatively places Traylor indirect opposition to

New Hampshire. Traylor is as wrong-headed as

the instant matter is and merely perpetuates the

same identical bad law that was held in both

Scoggins and Chandler. Traylor should have been

appealed in the same fashion as the instant case

pursuant to the new precedent announced in New

Hampshire. The forgoing legal analysis relegates

14

Traylor to bad law alongside Scoggins and

Chandler because the practice of prejudicing a

plaintiffs consistent position was abolished when

New Hampshire became good law and the Nation's

seminal case on judicial estopple. As Justice Scallia

once said it, "We've evolved as a society." The

Eleventh Circuit has not evolved within this

particular area of law per its continued use of the

forgoing.

II. The Eleventh Circuit Has Effectively Overruled

This Court's Precedent Held In New Hampshire

v. Maine.

This court recognized in New Hampshire that

there are no clear-cut rules when deciding

whether to employ judicial estopple.

"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," Allen, 667 F. 2d, at 1166; accord,

Lowery v. Stovall, 92 F.3d 219, 223 (CA4

1996); Patriot Cinemas, Inc. v. General

Cinema Corp., 834 F.2d 208, 212 (CAl

1987)."

However, there are fundamental facial and

evidentiary elements pursuant to the "New

15

Hampshire Test" that must be performed. The first

prong of any such test is whether there even exists

a previous inconsistent position made under oath

by Mr. Weakley? It is exculpatory in nature to note

that the record in this case does not support a

finding that Mr. Weakley took and inconsistent

position "prior" to filing his district court civil

complaints that were dismissed by the lower court.

Moreover, the sole purpose New Hampshire is to

"prevent" a plaintiff from taking a 2nd position

which is inconsistent with a previous position on

the matter. Without any such previous position to

cite, there can be no viable ground for an estopple,

unless a court chooses to abuse its discretion and

proceed anyhow.

The Eleventh Circuit's ruling in this case overrides

the precedent held in New Hampshire and serves

to further expand the scope of judicial estopple by

unduly prejudicing Mr. Weakley's consistent

position. Further, this case establishes an

erroneous precedent, holding that there does not

have to be a prior position taken in order to

judicially estop a civil plaintiff for having taken a

prior inconsistent position.

Hypothetically, had this case been published back

in (2001), New Hampshire could have argued that

precedent existed for its own 1" position to be

vacated under the instant holding.

16

SUMATION

The precedent held by this court in New

Hampshire absolutely matters. Allow this case to

stand and New Hampshire will no longer matter.

To the point of redundancy Mr. Weakley has

pointed out that it is not his consistent position that

is the subject of controversy but rather the second

position he took in a later bankruptcy claim.

Justice Ginsberg makes it so plain and clear in the

opinion. The second position gets the ax, not the

first. And certainly not the consistent position.

God's speed to Justice Ginsberg and a speedy

healing.

So as it stands, a federal magistrate has

improperly seized Mr. Weakley's property while

operating under the authority of an misinterpreted,

abolished precedent when the lower court

dismissed Mr. Weakley's breach of contract claims

in the underlying civil claims against these

defendants.

Surely this case is ripe for remand when this Court

New

considers the National implication.

Hampshire would become bad law to some degree

or another. Plaintiffs under these very same or

similar circumstances will have grounds under this

case to have their first positions vacated because

their circumstances have changed. Or at least that

17

is the precedent this case establishes. Make no

mistake about it, New Hampshire would have loved

to have had its first position abolished and its

inconsistent accepted as in the instant case.

PLEA FOR RELEIF

In light of the forgoing Mr. Weakley would

formally beseech this High Court to grant a writ of

certiorari in this case.

CONCLUSION

After this Court's sifting deliberation of the facts and

evidence in this case. The prayer is that THE COURT

would grant cert in this case.

Pro se

414 East Mountain View Rd.

Apt 503

Johnson City, Tn. 37601

423-797-0096

timothyweakley@yahoo.com