Petition for Writ of Certiorari — Thomas Keathley, Petitioner v. Buddy Ayers Construction, Incorporated

Supreme Court briefJun 27, 2025

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No. ______

In the

Supreme Court of the United States

THOMAS KEATHLEY,

Petitioner,

BUDDY AYERS CONSTRUCTION, INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KRISTIN C. HOLLADAY

LATHAM & WATKINS LLP

1271 Avenue of the

Americas

New York, NY 10020

ERIC J. LEWELLYN

ALDERS AND LEWELLYN

PLLC

1331 Union Avenue

Suite 1000

Memphis, TN 38104

GREGORY G. GARRE

Counsel of Record

CHRISTINA R. GAY

LATHAM & WATKINS LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioner

QUESTION PRESENTED

Judicial estoppel is an equitable doctrine designed

“‘to protect the integrity of the judicial process’ by

‘prohibiting parties from deliberately changing

positions’” to gain an unfair advantage.

New

Hampshire v. Maine, 532 U.S. 742, 749-50 (2001).

The doctrine targets those who “‘deliberately’”

mislead courts, not those whose inconsistent positions

stem from “inadvertence or mistake.” Id. at 750, 753.

Courts regularly apply judicial estoppel when a

debtor-plaintiff pursues a claim he failed to disclose

to the bankruptcy court. The Eleventh, Ninth,

Seventh, Sixth, and Fourth Circuits require courts to

look at the totality of the circumstances and find that

a debtor subjectively intended to mislead the

bankruptcy court before applying judicial estoppel to

bar a claim outside of the bankruptcy. In stark

contrast, the Fifth and Tenth Circuits have embraced

a “rigid” and “unforgiving” judicial estoppel rule in the

bankruptcy context that bars claims regardless of

whether there is evidence that a plaintiff actually

intended to mislead. App. 55a. In those circuits, a

debtor’s failure to disclose a lawsuit to a bankruptcy

court triggers judicial estoppel whenever the debtor

knew the facts relevant to the undisclosed claim and

had a potential motive for concealment—which is

virtually always present in the bankruptcy context.

The question presented is:

Whether the doctrine of judicial estoppel can be

invoked to bar a plaintiff who fails to disclose a civil

claim in bankruptcy filings from pursuing that claim

simply because there is a potential motive for

nondisclosure, regardless of whether there is evidence

that the plaintiff in fact acted in bad faith.

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Thomas L. Keathley, Sr. was the

plaintiff in the district court and the appellant in the

court of appeals.

Respondent Buddy Ayers Construction, Inc. was

the defendant in the district court and the appellee in

the court of appeals.

Connie Keathley was a plaintiff in the district

court but did not participate in the court of appeals.

Daniel Fowler was a defendant in district court but

did not participate in the court of appeals.

RELATED PROCEEDINGS

There are no proceedings directly related to this

case within the meaning of Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDINGS BELOW .......... ii

RELATED PROCEEDINGS ...................................... ii

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

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

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

INTRODUCTION .......................................................1

STATEMENT OF THE CASE ....................................4

A. Legal Background ........................................4

B. Factual And Procedural Background ..........6

REASONS FOR GRANTING THE WRIT................12

THERE IS A CLEAR, ACKNOWLEDGED,

AND INTRACTABLE CIRCUIT CONFLICT

ON THE QUESTION PRESENTED................13

II.

THE

QUESTION

PRESENTED

EXCEPTIONALLY IMPORTANT AND

WARRANTS REVIEW IN THIS CASE ...........20

III. THE DECISION BELOW IS WRONG ............26

CONCLUSION ..........................................................30

TABLE OF CONTENTS—Continued

Page

APPENDIX

Opinion of the United States Court of Appeals

for the Fifth Circuit, Keathley v. Buddy

Ayers Construction, Inc., No. 24-60025,

2025 WL 673434 (5th Cir. Mar. 3, 2025) ...........1a

Order of the United States District Court for

the Northern District of Mississippi

Denying Reconsideration, Keathley v.

Buddy Ayers Construction, Inc., 706 F.

Supp. 3d 628 (N.D. Miss. 2023) ........................24a

Order of the United States District Court for

the Northern District of Mississippi,

Keathley v. Buddy Ayers Construction, Inc.,

686 F. Supp. 3d 495 (N.D. Miss. 2023) ............39a

Order Denying Petition for Rehearing,

Keathley v. Buddy Ayers Construction, Inc.,

No. 24-60025 (5th Cir. Mar. 31, 2025), ECF

No. 75-1 .............................................................57a

Affidavit of Kellie M. Emerson (dated Aug. 17,

2023), Dist. Ct. Dkt. No. 169-5

(ROA.2385-87)...................................................58a

TABLE OF AUTHORITIES

Page(s)

CASES

Ah Quin v. County of Kauai Department

of Transportation,

733 F.3d 267 (9th Cir. 2013).........15-17, 19, 23, 29

Allen v. C & H Distributors, L.L.C.,

813 F.3d 566 (5th Cir. 2015)................................21

Banks v. Corrections Corp. of America,

218 F. App’x 366 (5th Cir. 2007) .........................21

Biesek v. Soo Line Railroad Co.,

440 F.3d 410 (7th Cir. 2006)................................23

In re Boyd,

618 B.R. 133 (Bankr. D.S.C. 2020) ......................27

Browning Manufacturing v. Mims (In re

Coastal Plains, Inc.),

179 F.3d 197 (5th Cir. 1999)..........................17, 21

Cadle Co. v. Mitchell (In re Mitchell),

No. 03-CV-281, 2003 WL 22016948

(N.D. Tex. July 28, 2003), aff’d and

remanded, 102 F. App’x 860 (5th Cir.

2004) .....................................................................22

Cox v. Richards,

761 F. App’x 244 (5th Cir. 2019) .........................22

Eastman v. Union Pacific Railroad Co.,

493 F.3d 1151 (10th Cir. 2007)............................19

Edwards v. Aetna Life Insurance Co.,

690 F.2d 595 (6th Cir. 1982)................................26

TABLE OF AUTHORITIES—Continued

Page(s)

Feuerbacher v. Wells Fargo Bank National

Association,

701 F. App’x 297 (5th Cir. 2017) .........................22

Flugence v. Axis Surplus Insurance Co. (In

re Flugence),

738 F.3d 126 (5th Cir. 2013).................... 17, 18, 21

Fornesa v. Fifth Third Mortgage Co.,

897 F.3d 624 (5th Cir. 2018).................... 18, 22, 23

Gifford v. Lowe’s Home Centers, LLC,

No. 20-CV-102, 2022 WL 501743 (N.D.

Okla. Jan. 5, 2022) ...............................................23

Grainger v. Meritan, Inc.,

No. 09-CV-271, 2011 WL 824484 (S.D.

Miss. Mar. 2, 2011) ..............................................23

Harris v. Viegelahn,

575 U.S. 510 (2015) ..............................................29

Holland v. Florida,

560 U.S. 631 (2010) ..............................................28

Holmberg v. Armbrecht,

327 U.S. 392 (1946) ..............................................28

Jackson v. Goins Underkofler Crawford &

Langdon, L.L.P. (In re Jackson),

574 F. App’x 317 (5th Cir. 2014) .........................21

Jethroe v. Omnova Solutions, Inc.,

412 F.3d 598 (5th Cir. 2005)................................21

vii

TABLE OF AUTHORITIES—Continued

Page(s)

John S. Clark Co. v. Faggert & Frieden,

P.C.,

65 F.3d 26 (4th Cir. 1995)......................................5

Kamont v. West,

83 F. App’x 1 (5th Cir. 2003) ...............................21

Kane v. National Union Fire Insurance Co.,

535 F.3d 380 (5th Cir. 2008)................................21

Kaufman ex rel. Kaufman v. Robinson

Property Group L.P.,

373 F. App’x 494 (5th Cir.), cert. denied,

562 U.S. 927 (2010) ..............................................21

Love v. Tyson Foods, Inc.,

677 F.3d 258 (5th Cir. 2012)..........................18, 21

Martineau v. Wier,

934 F.3d 385 (4th Cir. 2019).................... 16, 19, 27

Montrose Medical Group Participating

Savings Plan v. Bulger,

243 F.3d 773 (3d Cir. 2001) .................................26

New Hampshire v. Maine,

532 U.S. 742 (2001) ................................. 3-5, 26-28

Queen v. TA Operating, LLC,

734 F.3d 1081 (10th Cir. 2013)............................19

Reed v. City of Arlington,

650 F.3d 571 (5th Cir. 2011)..........................21, 23

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Ryder v. Lifestance Health Group, Inc.,

No. 22-cv-2050, 2024 WL 1119821 (M.D.

Fla. Feb. 12, 2024) ...............................................25

Simpson v. Kelly Services, Inc.,

689 F. App’x 351 (5th Cir. 2017) .........................22

Simpson v. Kelly Services, Inc.,

No. 14-cv-972, 2016 WL 9450593 (S.D.

Miss. Sept. 26, 2016), aff’d, 689 F. App’x

351 (5th Cir. 2017) ...............................................23

Slater v. United States Steel Corp.,

820 F.3d 1193 (11th Cir. 2016),

vacated on reh’g en banc, 871 F.3d

1174 (11th Cir. 2017) .....................................22, 29

Slater v. United States Steel Corp.,

871 F.3d 1174 (11th Cir.

2017) .................................... 3, 13-15, 19, 25, 27-28

Smith v. Dallas County Hospital District,

651 F. App’x 279 (5th Cir. 2016) .........................22

Smith v. Dallas County Hospital District,

No. 13-CV-792, 2014 WL 6991482 (N.D.

Tex. Dec. 9, 2014) .................................................23

Smith v. Haynes & Haynes P.C.,

940 F.3d 635 (11th Cir. 2019)..............................21

Spaine v. Community Contacts, Inc.,

756 F.3d 542 (7th Cir. 2014)................................15

TABLE OF AUTHORITIES—Continued

Page(s)

Spicer v. Laguna Madre Oil & Gas II,

L.L.C. (In re Texas Wyoming Drilling,

Inc.),

647 F.3d 547 (5th Cir. 2011)................................21

Stanley v. FCA US, LLC,

51 F.4th 215 (6th Cir. 2022) ..........................15, 16

Strujan v. Merck & Co. (In re Vioxx

Products Liability Litigation),

532 F. App’x 551 (5th Cir.), cert. denied,

571 U.S. 1059 (2013) ............................................21

Superior Crewboats, Inc. v. Primary P&I

Underwriters (In re Superior Crewboats,

Inc.),

374 F.3d 330 (5th Cir. 2004)..........................18, 21

United States ex rel. Bias v. Tangipahoa

Parish School Board,

766 F. App’x 38 (5th Cir.), cert. denied,

140 S. Ct. 75 (2019)..............................................22

United States ex rel. Long v. GSDMIdea

City, L.L.C.,

798 F.3d 265 (5th Cir. 2015)..........................18, 21

Wal-Mart Stores, Inc. v. Parker (In re

Parker),

789 F. App’x 462 (5th Cir. 2020) .........................22

White v. Wyndham Vacation Ownership,

Inc.,

617 F.3d 472 (6th Cir. 2010)................................15

TABLE OF AUTHORITIES—Continued

Page(s)

Zedner v. United States,

547 U.S. 489 (2006) ..........................................5, 28

CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const. art. I, § 8, cl. 4 ........................................20

11 U.S.C. § 1321 ..........................................................4

11 U.S.C. § 1322 ..........................................................4

11 U.S.C. § 1324 ..........................................................4

11 U.S.C. § 1325 ..........................................................4

11 U.S.C. § 1329 ..........................................................4

18 U.S.C. § 152 ..........................................................29

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

OTHER AUTHORITIES

William H. Burgess, Dismissing

Bankruptcy-Debtor Plaintiffs’ Cases on

Judicial Estoppel Grounds, The Federal

Lawyer (May 2015),

https://www.fedbar.org/wp-content/

uploads/2015/05/feature7-may15pdf-1.pdf ...................................................18, 20, 21

9 Collier on Bankruptcy ¶ 1007.08 (16th ed.

2025) .....................................................................27

Current Circuit Splits, 14 Seton Hall

Circuit Rev. 279 (2018) ........................................20

TABLE OF AUTHORITIES—Continued

Page(s)

Fed. R. Bankr. P. 1007(b) ...........................................4

Fed. R. Bankr. P. 9011(c) ..........................................29

Michael Reiss et al., Judicial Estoppel Can

Bar a Former Debtor From Recovering

for Meritorious Litigation Claims, Ass’n

of Bus. Trial Laws. Rep. - Los Angeles

(Summer 2023), https://www.lw.com/

people/admin/upload/SiteAttachments/

Galdes-Reiss-Schneer_summer2023.pdf.............20

U.S. Courts, Bankruptcy Filing Statistics,

https://www.uscourts.gov/data-news/

reports/statistical-reports/bankruptcyfilings-statistics (last visited June 26,

2025) .....................................................................21

U.S. Courts, Chapter 13 – Bankruptcy

Basics, https://www.uscourts.gov/courtprograms/bankruptcy/bankruptcybasics/chapter-13-bankruptcy-basics

(last visited June 26, 2025) ...................................4

18B Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure

(3d ed. 2025, Westlaw) .........................................25

PETITION FOR A WRIT OF CERTIORARI

Petitioner Thomas Keathley (Mr. Keathley)

respectfully petitions this Court for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-23a)

is not reported but available at 2025 WL 673434. The

court of appeals’ denial of rehearing (App. 57a) is

unreported. The decision of the district court denying

reconsideration (App. 24a-38a) is published at 706 F.

Supp. 3d 628, and the district court’s order granting

summary judgment (39a-56a) is published at 686 F.

Supp. 3d 495.

JURISDICTION

The court of appeals entered its judgment on

March 3, 2025 (App. 1a-23a).

This Court has

jurisdiction under 28 U.S.C. § 1254(1).

INTRODUCTION

Going through a personal bankruptcy is hard

enough. This case presents an opportunity to resolve

an entrenched circuit conflict over an unforgiving rule

applied by a small minority of circuits—including the

Fifth Circuit below—that unnecessarily penalizes

debtors for honest mistakes. The question is whether

a debtor who fails to disclose a civil claim in

bankruptcy filings should be permanently barred

under the doctrine of judicial estoppel from pursuing

that claim—whether it be a personal injury claim, as

here; an employment discrimination claim; or other

claim, even against a defendant unrelated to the

bankruptcy—even when there is no showing that the

debtor intended to mislead the bankruptcy court.

Five circuits—the Eleventh, Ninth, Seventh,

Sixth, and Fourth—require that the debtor intended

to mislead the bankruptcy court before they will bar

the debtor from pursuing an undisclosed claim, and

consider a wide range of evidence bearing on intent

before holding that the claim is barred. In contrast,

two circuits—the Fifth and the Tenth—employ a

“rigid” and “unforgiving” rule that permits judicial

estoppel whenever the debtor knew the facts

underlying his claim and there is a plausible motive

to conceal it, which is virtually always present given

the financial implications of bankruptcy. App. 55a

(describing the Fifth Circuit’s rule). That test almost

always leads to the claim being barred under judicial

estoppel—even where there is evidence indicating

that the failure to disclose the claim was an honest

mistake. And the upshot of this rule is that it can

hand an “unwarranted windfall” to the defendant in

the separate action when a case is dismissed. Id. at

21a-22a (Haynes, J, concurring in the judgment).

The debtor in this case, Mr. Keathley, filed

personal injury claims against respondent after

suffering serious injuries when a truck driven by

respondent’s employee collided with the truck

Mr. Keathley was driving. In the decision below, the

Fifth Circuit—applying its outlier judicial estoppel

rule—barred Mr. Keathley from pursuing his

personal injury claims because he did not

immediately disclose them in his pending Chapter 13

bankruptcy proceedings, even though the claims

arose well after he filed for bankruptcy, he promptly

told his bankruptcy attorney about the basis for them,

respondent was in no way adversely impacted by the

delay in disclosing the claims, and the attorney’s

failure to immediately disclose them to the

bankruptcy court (which was in line with the typical

practice in that district) did not impact the

bankruptcy estate or Mr. Keathley’s creditors.

Judge Haynes “concurred in the judgment only,”

stating that she “would have dissented” if not for the

Fifth Circuit’s rigid judicial estoppel rule, given

evidence that “Keathley’s failure to disclose the

personal injury claim[s] . . . was an honest mistake”

and “the bankruptcy proceedings [would] not suffer”

from his nondisclosure. App. 21a-22a. As she

explained, “[o]ther circuits take a more holistic

approach than [the Fifth Circuit]” in deciding

whether the debtor’s failure to disclose a claim in

bankruptcy warrants the invocation of judicial

estoppel to bar that claim. Id. at 22a. And, she

disagreed with the Fifth Circuit rule that permits

“potentially bad actors to reap a windfall” when, as

here, there is “evidence that [the] failure to disclose

the . . . claim . . . was an honest mistake.” Id. at 21a.

This circuit split is entrenched, acknowledged, and

highly consequential. Commentators and courts,

including the en banc Eleventh Circuit, have

highlighted the clear “circuit split” on the question

presented. Slater v. United States Steel Corp., 871

F.3d 1174, 1189 (11th Cir. 2017) (en banc). The issue

arises with great frequency across the country,

unnecessarily stripping debtors of claims—and

redress—based on real harms. The minority position

embodied by the Fifth Circuit below is grossly out of

step with this Court’s precedent, which recognizes

that the doctrine of judicial estoppel is designed to

thwart “deliberate[]” and “intentional” switches in a

litigant’s position aimed at securing an unfair

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

749-51 (2001) (citations omitted). It is also at odds

with the doctrine’s flexible nature. Only this Court

can resolve this entrenched circuit split on this

important issue, and this case provides an ideal

vehicle in which to do so.

The petition should be granted.

STATEMENT OF THE CASE

A. Legal Background

1. Hundreds of thousands of Americans file for

bankruptcy each year. Chapter 13 of the Bankruptcy

Code lets individuals with regular income develop a

plan to repay part or all of their debts over three to

five years. U.S. Courts, Chapter 13 – Bankruptcy

Basics,

https://www.uscourts.gov/court-programs/

bankruptcy/bankruptcy-basics/chapter-13-bankruptcybasics (last visited June 26, 2025). A debtor initiates a

Chapter 13 bankruptcy by filing a petition with the

bankruptcy court. Id. The debtor must generally also

file a repayment plan and schedules of assets and

liabilities. 11 U.S.C. §§ 1321-1322; Fed. R. Bankr.

P. 1007(b). Creditors then have an opportunity to

object to the repayment plan. And the plan ultimately

must be approved by the court. See 11 U.S.C. §§ 13241325. A plan can be modified after confirmation at

the initiative of the debtor, the bankruptcy trustee, or

an unsecured creditor. Id. § 1329.

2. Judicial estoppel is an equitable doctrine that

prevents a party who has successfully advanced a

position in one court from later taking an

incompatible position before a different court. See

New Hampshire, 532 U.S. at 749-50. It is designed to

“protect the integrity of the judicial process” and

prevent “the perception that either the first or the

second court was misled.” Id. (citations omitted).

The doctrine is not susceptible to “inflexible

prerequisites or an exhaustive formula.” Id. at

750-51; see also Zedner v. United States, 547 U.S. 489,

504 (2006) (judicial estoppel “is equitable and thus

cannot be reduced to a precise formula or test”). But

this Court has identified several factors that inform

“whether to apply the doctrine in a particular case.”

New Hampshire, 532 U.S. at 750. “First, a party’s

later position must be ‘clearly inconsistent’ with its

earlier position.” Id. (citation omitted). Second,

courts consider “whether the party has succeeded in

persuading a court to accept” its earlier position. Id.

Finally, courts ask “whether the party seeking to

assert an inconsistent position would derive an unfair

advantage or impose an unfair detriment on the

opposing party if not estopped.” Id.

Undergirding this analysis is the desire to

“prohibit[] parties from deliberately changing

positions according to the exigencies of the moment.”

Id. at 749-50 (emphasis added) (citation omitted). But

because “[t]he vice which judicial estoppel prevents is

the cold manipulation of the courts to the detriment

of the public interest,” courts have recognized that

“[i]t is inappropriate . . . to apply the doctrine when a

party’s prior position was based on inadvertence or

mistake.” John S. Clark Co. v. Faggert & Frieden,

P.C., 65 F.3d 26, 29 (4th Cir. 1995); see also New

Hampshire, 532 U.S. at 753 (citing cases).

3. When a debtor in a bankruptcy proceeding fails

to disclose the existence of a potential or pending

claim outside of the bankruptcy, courts apply the

doctrine of judicial estoppel to determine whether the

separate action must be dismissed on the ground that

it amounts to a manipulation of the courts. There is

consensus that judicial estoppel generally bars a

debtor from pursuing a cause of action if (1) a debtor

failed to disclose the claim in his bankruptcy

proceedings, (2) the bankruptcy court accepted that

nondisclosure, and (3) the nondisclosure was not

inadvertent or a mistake. However, as detailed

below, the circuits sharply disagree on how to analyze

that third element—whether a nondisclosure resulted

from inadvertence or mistake. Infra at 13-20. And

this is the dispositive factor in most cases in deciding

whether a claim that was not disclosed in a

bankruptcy proceeding is estopped.

B. Factual And Procedural Background

1. Like many Americans, Thomas Keathley and

his wife found it difficult to make ends meet. In

December 2019, they filed for Chapter 13 bankruptcy

in the Eastern District of Arkansas to get out of debt

and regain control of their affairs. App. 2a. The

bankruptcy court confirmed a modified repayment

plan in April 2020. Id. The Keathleys’ confirmed plan

provided for 100%, interest-free repayment of the

Keathleys’ creditors. See id. at 14a, 22a.

In August 2021—more than a year after the

bankruptcy court had approved the Keathleys’

Chapter 13 plan—Mr. Keathley suffered injuries to

his neck, back, and hands after the truck he was

driving was struck by a truck driven by David Fowler,

an employee of respondent Buddy Ayers

Construction, Inc. Id. at 1a-2a. Fowler blamed the

crash on faulty brakes. CA5 Record on Appeal (ROA)

727. As a result of the injuries he sustained,

Mr. Keathley required surgery, injections, and

physical therapy.

ROA.494-95.

His lingering

physical limitations have permanently reduced his

earning capacity. ROA.496-98.

Mr. Keathley informed his bankruptcy counsel of

the accident and the basis for his personal injury

claims a few weeks after the accident occurred.

ROA.1217. His bankruptcy counsel, however, did not

inform the bankruptcy court. App. 3a.

In December 2021, Mr. Keathley filed this

personal injury suit against respondent in the United

States District Court for the Northern District of

Mississippi, alleging negligence and vicarious

liability for respondent’s role in the crash and seeking

damages to compensate for his injuries. Id.

In 2022, Mr. Keathley’s bankruptcy counsel filed

amended bankruptcy plans in the bankruptcy court,

which did not include a schedule of assets or list the

lawsuit. See No. 19-bk-16848 (Bankr. E.D. Ark.)

(Bankruptcy Case), Dkt. Nos. 51, 61, 62; ROA.1215.

In March 2023, respondent moved for summary

judgment in this action based on judicial estoppel.

App. 3a-4a. It asked the district court to categorically

bar Mr. Keathley from pursuing his personal injury

lawsuit simply because he had not disclosed his

claims to the bankruptcy court. Id. at 4a.

Less than a week later, Mr. Keathley filed an

amended schedule notifying the bankruptcy court of

the pending personal injury suit. Id. No creditor

moved to modify Mr. Keathley’s existing repayment

plan in light of his personal injury claims, and the

bankruptcy court did not sanction Mr. Keathley for

any delay. See generally Bankruptcy Case Dkt. Nos.

66-110; see also App. 22a.

Mr. Keathley then submitted an affidavit in the

district court attesting that he “never intended to

make any misrepresentations” about the existence of

his personal injury claims and that, after he told his

bankruptcy attorney about the claims, he “believed

[he] had done everything [he] needed to do.”

ROA.1217. He also submitted an affidavit from his

bankruptcy counsel attesting that disclosing the

claims to the bankruptcy court “would have had no

material effect” on the confirmation of Mr. Keathley’s

amended bankruptcy plan, and that Mr. Keathley

“received no benefit monetarily, or otherwise, from

the nondisclosure.” ROA.1215.

2. In August 2023, the district court granted

respondent’s summary judgment motion and

dismissed this action, holding that judicial estoppel

barred Mr. Keathley from pursuing his personal

injury claims given his failure to promptly disclose

the claims to the bankruptcy court. App. 39a-56a.

Noting that the case presented “a factual scenario

which has arisen frequently in the Fifth Circuit,” the

district court acknowledged that, as a policy matter,

it would be “legitimate” to “give [Mr. Keathley] the

benefit of the doubt and to allow him to submit

amended bankruptcy filings, based partly upon the

belief that it would be better for the bankruptcy

creditors to be paid from the eventual proceeds of the

lawsuit than to dismiss the action outright.” Id. at

40a-41a. But the court stated that the merits of such

an approach were “irrelevant,” because “the Fifth

Circuit has clearly opted” for a harsher approach,

which considers only whether a debtor knew of the

facts underlying his claim and had a possible motive

for concealing the claim before concluding that an

omission was not inadvertent and applying judicial

estoppel. Id. at 41a.

“[R]eiterat[ing]” that it was “simply following the

directives of the Fifth Circuit,” the district court held

that Mr. Keathley’s failure to disclose his personal

injury suit was not inadvertent. Id. at 44a. The court

emphasized that, beyond knowledge of the underlying

claim, respondent needed to show only that some

“‘potential financial benefit . . . could result from

concealment.’” Id. at 49a-50a (citation omitted). The

court concluded that respondent had satisfied this

element because the Keathleys’ 100% repayment plan

did not provide for payment of interest on claims. Id.

at 50a-52a. The court explained that Mr. Keathley’s

“arguments of inadvertent error and mistakes of

counsel” were irrelevant under the Fifth Circuit’s

“consciously . . . rigid and unforgiving standards,” and

the court “ha[d] no choice but to follow those

standards.” Id. at 55a; see also id. at 52a-53a.

In reaching its decision, the district court

acknowledged that the Fifth Circuit’s “stringent

approach” would “no doubt[] result in many debtors

who did, in fact, make an honest mistake being barred

from pursuing potentially meritorious tort claims.”

Id. at 55a-56a. While the court did not determine

whether Mr. Keathley “f[ell] in this category,” it noted

that, if he did, the outcome in his case was “a

regrettable yet unavoidable result of the policy

decision” the Fifth Circuit made when adopting its

“stringent” non-disclosure rule. Id. at 55a-56a.

3. Mr. Keathley moved for reconsideration, this

time introducing an affidavit from a staff attorney for

the Chapter 13 trustee assigned to the Keathleys’

case, Kellie Emerson. Id. at 58a-60a. Emerson

attested that there was “nothing unusual or

misleading abut Mr. and Mrs[.] Keathley not

disclosing the personal injury action while the

personal injury action [was] ongoing,” and that it was

“not uncommon” in the Eastern District of Arkansas

“for debtors to amend their bankruptcy filings to

disclose post-petition claims for personal injury

actions prior to the settlement or resolution of the

personal injury action.” Id. at 59a. Emerson further

stated that the Keathleys “ha[d] received no benefit

from the non-disclosure” and that, even if they had

notified the bankruptcy court of the personal injury

claims “immediately after the wreck,” “it would not

have had any effect on the administration of the

bankruptcy” or “the amount the Keathleys would

have had to pay or the time they would have had to

pay it.” Id. at 59a-60a.

The

district

court

nonetheless

denied

Mr. Keathley’s reconsideration motion. In doing so,

the court emphasized that it “ha[d] no power to

change the Fifth Circuit’s approach” to judicial

estoppel in the bankruptcy context “even if it wished

to do so,” and that Mr. Keathley “should argue in

favor of any change in the governing law on appeal,

rather than before [the district] court.” Id. at 34a.

4.a. A panel of the Fifth Circuit affirmed. The

court reiterated that, in considering whether

Mr. Keathley’s nondisclosure was “inadvertent,” it

was bound by Fifth Circuit precedent to consider only

whether he either “lack[ed] knowledge of the

undisclosed claims” or “stood to potentially benefit”

from their concealment. Id. at 12a-14a. As a result,

the court dismissed as irrelevant Mr. Keathley’s

argument that he did not realize he had a duty to

disclose his claims to the bankruptcy court. See id. at

13a.

The court was equally unmoved by

Mr. Keathley’s evidence that such non-disclosure was

routine in the Eastern District of Arkansas in the

early stages of a personal injury case. Id. at 13a-14a.

The court of appeals then concluded that

Mr. Keathley had a plausible motive to mislead—

despite Emerson’s affidavit—because his multi-year

repayment plan was interest-free and had been

extended. Id. at 14a. In reaching this conclusion, the

panel emphasized circuit precedent “ma[king] clear”

that “‘the motivation sub-element is almost always

met if a debtor fails to disclose a claim or possible

claim to the bankruptcy court.’” Id. (citation omitted).

The court dismissed Mr. Keathley’s arguments for

adopting “a more lenient approach” to judicial

estoppel, explaining that it was “bound by the law in

this circuit as it currently exists.” Id. at 18a-19a.

b. Judge Haynes concurred in the judgment, “only

because it [was] based upon [Fifth Circuit]

precedent”—precedent without which she “would

have dissented.” Id. at 20a, 23a. Judge Haynes made

clear that she “disagree[d] with [the circuit’s]

precedent in cases like the present.” Id. at 20a.

Judge Haynes registered her “doubt that the

goals” of judicial estoppel “ha[d] been advanced” by

applying the doctrine to bar Mr. Keathley’s personal

injury action given “evidence that Keathley’s failure

to disclose the personal injury claim on his

bankruptcy schedules was an honest mistake” that

“was of little concern to the bankruptcy court and

would not impact Keathley’s creditors.” Id. at 21a.

She further opined that it made “little sense” for

respondent “to benefit from something it ha[d] no

involvement in and for which the bankruptcy court

[did] not appear to think the plaintiff should be

sanctioned.” Id. at 22a. As she explained, under the

Fifth Circuit’s rule, respondent would receive an

“unwarranted windfall,” assuming it caused the crash

injuring Mr. Keathley. Id.

In addition to “disagree[ing]” with the Fifth

Circuit’s own precedent, id. at 20a, Judge Haynes

observed that “[o]ther circuits take a more holistic

approach” to judicial estoppel in the bankruptcy

context, under which “judicial estoppel is

inappropriate when the bankruptcy proceedings will

not suffer and when the alleged bad actors will receive

a windfall.” Id. at 22a (citing cases from the First,

Seventh, Ninth, and Eleventh Circuits).

c. The panel denied Mr. Keathley’s petition for

rehearing. Id. at 57a.

5. In late 2024, while this case was pending,

the Keathleys completed their Chapter 13 repayment

plan. Bankruptcy Case, Dkt. No. 99. Their eligible

debts were discharged, and their bankruptcy case was

closed. Bankruptcy Case, Dkt. Nos. 106, 110. Yet this

action remains barred under the Fifth Circuit’s

extreme judicial estoppel rule, even though

Mr. Keathley continues to suffer from injuries that he

sustained as a result of respondent’s negligence.

REASONS FOR GRANTING THE WRIT

This case presents an ideal vehicle for resolving a

deeply entrenched circuit split over whether a debtor

who fails to disclose a civil claim in bankruptcy filings

should be barred from pursuing that claim regardless

of whether there is evidence that the omission was

made in bad faith. At least five circuits require courts

to conclude that a debtor acted in subjective bad

faith—and will consider a range of evidence on that

question—before applying judicial estoppel.

contrast, the Fifth and the Tenth bar such claims

without requiring any evidence concerning the

debtor’s subjective intent to mislead the bankruptcy

court, based on a presumption of deceit whenever

there is a plausible motive to mislead, which is

basically always present given the bankruptcy. Only

this Court can resolve this clear split on a recurring

issue of critical importance to debtors and creditors.

I. THERE IS A CLEAR, ACKNOWLEDGED,

AND INTRACTABLE CIRCUIT CONFLICT

ON THE QUESTION PRESENTED

The question presented has divided the federal

courts of appeals. Five circuits require courts to find

that a debtor did not subjectively intend to mislead

the bankruptcy court before applying judicial

estoppel. In direct conflict, two circuits—including

the Fifth Circuit below—will apply judicial estoppel

to bar an undisclosed claim when a debtor knew of the

facts underlying his claim and had some hypothetical

motive to conceal it, regardless of his subjective intent

to mislead the bankruptcy court.

Courts and

commentators, including Judge Haynes in the

decision below (App. 22a), have recognized this split.

1. At least five circuits—the Eleventh, Ninth,

Seventh, Sixth, and Fourth Circuits—hold that courts

must find that a debtor had a subjective intent to

mislead the court before barring his claims, even if

the debtor knew about his underlying claim and had

some theoretical motive to conceal it.

a. Eleventh Circuit. In Slater v. United States

Steel Corp., the en banc Eleventh Circuit revisited—

and then overturned—its prior precedents on the

question presented, which were “consistent with” the

approach still taken in the Fifth and Tenth Circuits.

871 F.3d 1174, 1189 & n.18 (11th Cir. 2017) (en banc).

Specifically rejecting the position of the Fifth and

Tenth Circuits, the en banc court unanimously

concluded that judicial estoppel “may not be applied”

when a debtor “intended no deception”—regardless of

whether he “knew about the undisclosed claim[] and

had a motive to conceal [it].” Id. at 1184-87.

The Eleventh Circuit repudiated its prior rule,

under which—like the Fifth Circuit’s rule—the mere

fact that “the plaintiff could potentially benefit from

the nondisclosure” was “sufficient to establish that

the plaintiff, in fact, intended to deceive the court and

manipulate the proceedings.” Id. at 1182 (emphasis

added).

In doing so, the court explained that

considering “all the facts and circumstances” would

“reduce the risk that the application of judicial

estoppel will give the civil defendant a windfall at the

expense of innocent creditors.” Id. at 1186.

Citing cases from the Fifth and Tenth Circuits, the

Eleventh Circuit acknowledged that “[o]ther

circuits . . . have endorsed the inference that a

plaintiff who omitted a claim necessarily intended to

manipulate the judicial system.” Id. at 1189. But the

en banc court rejected that approach and explained

that it found “the analysis of the Sixth, Seventh, and

Ninth Circuits to be more persuasive and conclude[d]

that theirs is the better approach.” Id.

Under Slater, courts in the Eleventh Circuit “must

consider all the facts and circumstances” concerning a

debtor’s subjective intent to mislead before barring

his claim, such as “the plaintiff’s level of

sophistication,

whether

and

under

what

circumstances the plaintiff corrected the disclosures,

whether the plaintiff told his bankruptcy attorney

about the civil claims before filing the bankruptcy

disclosures, whether the trustee or creditors were

aware of the civil lawsuit or claims before the plaintiff

amended the disclosures, whether the plaintiff

identified other lawsuits to which he was party, and

any findings or actions by the bankruptcy court after

the omission was discovered,” as well as “any [other]

fact or factor [the district court] deems relevant.” Id.

at 1180, 1185 & n.9 (emphasis added).

b. Seventh Circuit. The Seventh Circuit likewise

has held that, for judicial estoppel to apply, a

defendant must establish that the plaintiff “filed

incomplete schedules with the subjective intent to

conceal her lawsuit.” Spaine v. Community Contacts,

Inc., 756 F.3d 542, 548 (7th Cir. 2014). As the court

held in Spaine, “[h]onest mistakes and oversights”

cannot trigger judicial estoppel. Id. Applying this

rule, the Seventh Circuit has reversed the grant of

summary judgment for a defendant because the

defendant “made no effort to establish that [the

plaintiff] had filed incomplete schedules with the

subjective intent to conceal her lawsuit.” Id. Citing

Ninth Circuit precedent, the court held that “the

universal motive to conceal” an asset in bankruptcy is

insufficient to establish a subjective intent to mislead.

Id. (quoting Ah Quin v. County of Kauai Dep’t of

Transp., 733 F.3d 267, 276-77 (9th Cir. 2013)).

c. Sixth Circuit. The Sixth Circuit similarly asks

“not only whether the debtor had a motive to conceal

undisclosed claims, but also whether that failure to

disclose was done in bad faith” before applying

judicial estoppel. Stanley v. FCA US, LLC, 51 F.4th

215, 221 (6th Cir. 2022); see also, e.g., id. (explaining

that the Sixth Circuit’s test is “much like” Slater’s

framework); White v. Wyndham Vacation Ownership,

Inc., 617 F.3d 472, 476-77 (6th Cir. 2010) (explaining

that, in assessing inadvertence, the court considers

the “absence of bad faith,” not merely any “knowledge

of the factual basis of the undisclosed claims,” and

“motive for concealment” (citations omitted)). Thus,

in Stanley, the court considered whether “the

omission was made in bad faith,” looking to the

surrounding circumstances. 51 F.4th at 221.

d. Fourth Circuit. The Fourth Circuit has also

held that courts weighing judicial estoppel in this

context must undertake “a full analysis of all the

‘specific facts and circumstances’” of a plaintiff’s case

to determine whether the plaintiff “‘intentionally

misled the court to gain [an] unfair advantage.’”

Martineau v. Wier, 934 F.3d 385, 393-96 (4th Cir.

2019) (alteration in original) (citations omitted). In so

holding, the court specifically rejected the Fifth

Circuit’s “bankruptcy-specific presumption” of bad

faith and the Tenth’s Circuit’s “similar rule,”

explaining that “debtors always have a motive to

conceal” and “the nature of the judicial estoppel

inquiry does not lend itself to” such “blanket

presumption[s].” Id. at 389, 393-94. The court also

explained that “reliance on a presumption of bad faith

runs the risk of producing a decidedly non-equitable

result”—“a potential ‘windfall’” to the civil defendant.

Id. at 396 (citation omitted). The court further

observed that “the last two circuit courts to consider

the presumption both have rejected it in thoroughly

reasoned opinions.” Id. at 394 (citing Eleventh and

Ninth Circuit cases).

e. Ninth Circuit. The Ninth Circuit has also

rejected the Fifth and Tenth Circuits’ “narrow

interpretation” of “‘inadvertence,’” at least where a

debtor reopens his bankruptcy proceedings and files

an amended schedule. Ah Quin, 733 F.3d at 271, 276.

In those circumstances, “[t]he relevant inquiry is not

limited to the plaintiff’s knowledge of the pending

claim and the universal motive to conceal a potential

asset.” Id. at 276. Instead, the court “must determine

whether the omission occurred by accident or was

made without intent to conceal” by probing “the

plaintiff’s subjective intent when filling out and

signing the bankruptcy schedules.” Id. at 276-77.

2. In sharp contrast, the Fifth and Tenth Circuits

hold that judicial estoppel is essentially always

warranted when a debtor fails to disclose a claim to

the bankruptcy court, irrespective of the debtor’s

subjective intent to mislead.

a. Fifth Circuit. The Fifth Circuit deems a

debtor’s failure to disclose a lawsuit “inadvertent” or

a “‘mistake’” only when “the debtor either lacks

knowledge of the undisclosed claims or has no motive

for their concealment.” Browning Mfg. v. Mims (In re

Coastal Plains, Inc.), 179 F.3d 197, 206-07, 210 (5th

Cir. 1999) (emphasis and citation omitted). The

debtor’s subjective intent is irrelevant under this

framework. Instead, the fact that a plaintiff had a

“possible financial motive for the nondisclosure” is

sufficient to trigger estoppel, regardless of whether

there is any evidence that the debtor actually

harbored bad faith. App. 21a (Haynes, J., concurring

in the judgment) (emphasis added); see id. at 14a

(panel opinion) (emphasizing that Mr. Keathley

“stood to potentially benefit by concealing his personal

injury claim” (emphasis added)). So arguments that

a debtor did not intend to mislead the bankruptcy

court—for example, that he “relied on the advice of

[his]

attorney” in not disclosing a claim—are

“unavailing.” Flugence v. Axis Surplus Ins. Co. (In re

Flugence), 738 F.3d 126, 130 (5th Cir. 2013).

The Fifth Circuit has never found its inadvertence

test satisfied in a precedential decision. That is

unsurprising; the “exception” is all but illusory. In

particular, debtors are “almost never” able to show

that they have “no motive for . . . concealment.”

William H. Burgess, Dismissing Bankruptcy-Debtor

Plaintiffs’ Cases on Judicial Estoppel Grounds,

The

Federal

Lawyer

(May

2015),

https://www.fedbar.org/wp-content/uploads/2015/05/

feature7-may15-pdf-1.pdf (alteration in original).

That is because, under the Fifth Circuit rule, it is

enough that some “potential financial benefit . . .

could result from concealment.” United States ex rel.

Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 273

(5th Cir. 2015) (emphasis added). And that is an

incredibly low bar—the Fifth Circuit considers “a

motive to conceal [to be] ‘self-evident’” in bankruptcy

cases given the “‘potential financial benefit resulting

from the nondisclosure.’” Fornesa v. Fifth Third

Mortg. Co., 897 F.3d 624, 628 (5th Cir. 2018) (citation

omitted); see also App. 14a (debtor “almost always”

has a sufficient motive to conceal (citation omitted)).1

Given the nearly insurmountable standard for

showing inadvertence in the Fifth Circuit, judicial

estoppel is “virtually mandatory in all cases of nondisclosure where a party could be said to ‘know the

facts of’ his claim.” Love v. Tyson Foods, Inc., 677 F.3d

258, 271 (5th Cir. 2012) (Haynes, J., dissenting); see,

e.g., Superior Crewboats, Inc. v. Primary P&I

Underwriters (In re Superior Crewboats, Inc.), 374

F.3d 330, 336 (5th Cir. 2004) (concluding that judicial

estoppel applied as a matter of law and remanding

with instructions to dismiss personal injury claim).

b. Tenth Circuit. The Tenth Circuit likewise

considers a debtor’s failure to disclose claims to the

1 The only other way to show inadvertence is if the debtor

did not know “the facts underlying” his claim when he failed to

disclose it, In re Flugence, 738 F.3d at 131—which is almost

never shown.

bankruptcy court inadvertent only when “a debtor has

both knowledge of the [undisclosed] claims and a

motive to conceal them.” Eastman v. Union Pac. R.R.

Co., 493 F.3d 1151, 1157 (10th Cir. 2007); accord, e.g.,

Queen v. TA Operating, LLC, 734 F.3d 1081, 1093-95

(10th Cir. 2013) (“knowledge and a motive to conceal”

is enough to “‘infer deliberate manipulation’” and thus

defeat a claim of “inadvertence or mistake” (citation

omitted)). In the Tenth Circuit, as in the Fifth, a

debtor’s “assertion that he simply did not know better

and his attorney ‘blew it’ is insufficient to withstand

application of” judicial estoppel. Eastman, 493 F.3d

at 1159.

3. Courts and commentators recognize the circuit

split on this issue. In 2017, the Eleventh Circuit,

previously in the minority, switched its position and

recognized that a “circuit split exist[ed]” on whether

courts must find bad faith before barring a claim.

Slater, 871 F.3d at 1189. The Fourth and Ninth

Circuits have highlighted the split as well and

expressly confronted and rejected what is now the

minority view. See Martineau, 934 F.3d at 394; Ah

Quin, 733 F.3d at 271-77; see id. at 279-80 (Bybee, J.,

dissenting) (arguing that the Ninth Circuit’s

approach is “contrary” to that of other “circuits, as the

majority

admits”).

Judge

Haynes

below

acknowledged that “[o]ther circuits take a more

holistic approach than [the Fifth Circuit].” App. 22a

(concurring in the judgment). And as the above

discussion

demonstrates,

courts

appeals

considering this issue have regularly borrowed

from—and disagreed with—cases from other circuits.

Academic commentators and practitioners

likewise have highlighted that “courts of appeals are

split” on how to analyze “inadvertence” in the

bankruptcy context, meaning the chances of

“avoid[ing]” “dismiss[al]” when a debtor fails to

disclose a claim “depend on which jurisdiction she is

in.”

Burgess, supra, at 1, 54, 58-59; see also

Current Circuit Splits, 14 Seton Hall Circuit Rev. 279,

282 (2018); Michael Reiss et al., Judicial Estoppel

Can Bar a Former Debtor From Recovering for

Meritorious Litigation Claims at n.1, Ass’n of

Bus. Trial Laws. Rep. - Los Angeles (Summer 2023),

https://www.lw.com/people/admin/upload/SiteAttach

ments/Galdes-Reiss-Schneer_summer2023.pdf. The

conflict, in short, is clear.

Whether a debtor who failed to disclose a potential

or pending lawsuit to the bankruptcy court but had no

subjective intent to mislead should nonetheless be

barred from pursuing his claims should not vary

based on geographic circumstance. Mr. Keathley

strongly believes that the Fifth Circuit’s position on

the question presented is wrong. But if the Court

disagrees, then there is no basis for allowing these

undisclosed claims to proceed in five other circuits.

Either way, there should be one national rule on this

important and frequently recurring question. That is

particularly true given the Constitution’s explicit call

for “uniform” rules “on the subject of Bankruptcies

throughout the United States.” U.S. Const. art. I, § 8,

cl. 4. Only this Court can resolve this split.

II. THE

QUESTION

PRESENTED

EXCEPTIONALLY

IMPORTANT

AND

WARRANTS REVIEW IN THIS CASE

The exceptional practical importance of the

question presented underscores the need for review.

1. The question presented arises with enormous

frequency. Over 7 million Chapter 7 and Chapter 13

bankruptcies have been filed since 2015.2 During

that period, district courts around the country

regularly confronted bankruptcy-related judicial

estoppel arguments. One commentator observed that

“whether to judicially estop a plaintiff from

continuing to prosecute a lawsuit that was not

disclosed in bankruptcy . . . appears to arise several

times each week in the federal and state courts.”

Burgess, supra, at 55; see also Smith v. Haynes &

Haynes P.C., 940 F.3d 635, 643 n.3 (11th Cir. 2019)

(stating that over 80% of a set of 237 cases within the

Eleventh Circuit considering judicial estoppel over

roughly fourteen years arose in the bankruptcy

context). Since 1999, the Fifth Circuit alone has

issued more than twenty decisions concerning judicial

estoppel in the bankruptcy context.3 Whatever the

See U.S. Courts, Bankruptcy Filing Statistics,

https://www.uscourts.gov/data-news/reports/statistical-reports/

bankruptcy-filings-statistics

(follow

link

“Data

Visualizations”; then select “Cases Filed By Chapters”; then

filter for Chapters 7 and 13) (last visited June 26, 2025).

In re Coastal Plains, Inc., 179 F.3d 197; Kamont v. West,

83 F. App’x 1 (5th Cir. 2003); In re Superior Crewboats, Inc., 374

F.3d 330 (5th Cir. 2004); Jethroe v. Omnova Sols., Inc., 412 F.3d

598 (5th Cir. 2005); Banks v. Corrections Corp. of Am., 218 F.

App’x 366 (5th Cir. 2007); Kane v. National Union Fire Ins. Co.,

535 F.3d 380 (5th Cir. 2008); Kaufman ex rel. Kaufman v.

Robinson Prop. Grp. L.P., 373 F. App’x 494 (5th Cir.), cert.

denied, 562 U.S. 927 (2010); Spicer v. Laguna Madre Oil &

Gas II, L.L.C. (In re Texas Wyoming Drilling, Inc.), 647 F.3d 547

(5th Cir. 2011); Reed v. City of Arlington, 650 F.3d 571 (5th Cir.

2011); Love, 677 F.3d 258; Strujan v. Merck & Co. (In re Vioxx

Prods. Liab. Litig.), 532 F. App’x 551 (5th Cir.), cert. denied, 571

U.S. 1059 (2013); In re Flugence, 738 F.3d 126; Jackson v. Goins

Underkofler Crawford & Langdon, L.L.P. (In re Jackson), 574 F.

App’x 317 (5th Cir. 2014); Long, 798 F.3d 265; Allen v. C & H

precise number, the frequency with which this issue

arises—and number of cases impacted—is great.

The frequency with which the question presented

recurs is hardly surprising: People who file for

bankruptcy are, by definition, insolvent and rarely

able to afford to pay sophisticated counsel to spend

extensive time preparing their filings. And mistakes

on bankruptcy filings are inevitable and

commonplace. See, e.g., Slater v. United States Steel

Corp., 820 F.3d 1193, 1240 (11th Cir. 2016) (Tjoflat,

J., specially concurring) (noting that “[o]missions

frequently occur in the Statement of Financial Affairs

and Schedules of Assets and Liabilities”), vacated on

reh’g en banc, 871 F.3d 1174 (11th Cir. 2017); Cadle

Co. v. Mitchell (In re Mitchell), No. 03-CV-281, 2003

WL 22016948, at *6 (N.D. Tex. July 28, 2003)

(similar), aff’d and remanded, 102 F. App’x 860 (5th

Cir. 2004).

The Fifth and Tenth Circuits’ rigid stance on the

question presented has profound consequences for

innocent debtor-plaintiffs like Mr. Keathley. Under

their framework, debtor-plaintiffs can automatically

lose claims for discrimination, personal injuries, and

other wrongs, as well as the dignitary value of having

their day in court, simply because they did not

disclose a claim to the bankruptcy court. See, e.g.,

Distributors, L.L.C., 813 F.3d 566 (5th Cir. 2015); Smith v.

Dallas Cnty. Hosp. Dist., 651 F. App’x 279 (5th Cir. 2016);

Simpson v. Kelly Servs., Inc., 689 F. App’x 351 (5th Cir. 2017);

Feuerbacher v. Wells Fargo Bank Nat’l Ass’n, 701 F. App’x 297

(5th Cir. 2017); Fornesa, 897 F.3d 624; Cox v. Richards, 761 F.

App’x 244 (5th Cir. 2019); United States ex rel. Bias v.

Tangipahoa Par. Sch. Bd., 766 F. App’x 38 (5th Cir.), cert.

denied, 140 S. Ct. 75 (2019); Wal-Mart Stores, Inc. v. Parker (In

re Parker), 789 F. App’x 462 (5th Cir. 2020); App. 1a-23a.

Grainger v. Meritan, Inc., No. 09-CV-271, 2011 WL

824484, at *4 (S.D. Miss. Mar. 2, 2011) (claims for sex

and pregnancy discrimination, among others); Smith

v. Dallas Cnty. Hosp. Dist., No. 13-CV-792, 2014 WL

6991482, at *6 (N.D. Tex. Dec. 9, 2014) (claims for

race discrimination and retaliation); Simpson v. Kelly

Servs., Inc., No. 14-cv-972, 2016 WL 9450593, at *1

(S.D. Miss. Sept. 26, 2016) (claims for violations of

Americans with Disabilities Act and Family Medical

Leave Act (“FMLA”)), aff’d, 689 F. App’x 351 (5th Cir.

2017); Fornesa, 897 F.3d at 627 (claim for wrongful

foreclosure); Gifford v. Lowe’s Home Centers, LLC,

No. 20-CV-102, 2022 WL 501743, at *1 (N.D. Okla.

Jan. 5, 2022) (claims for violation of and retaliation

under the FMLA). And innocent creditors lose out,

too, when applying judicial estoppel “vaporiz[es]

assets that could be used for the creditors’ benefit.”

Biesek v. Soo Line R.R. Co., 440 F.3d 410, 413 (7th

Cir. 2006) (Easterbrook, J.).

The question presented also has important

implications for the public more broadly. Judicial

estoppel can provide “an unwarranted windfall” to

wrongdoers, App. 22a (Haynes, J., concurring in the

judgment)—either by barring claims altogether or by

limiting a defendant’s liability, see Reed v. City of

Arlington, 650 F.3d 571, 573, 579 (5th Cir. 2011).

That result “do[es] nothing to protect the integrity of

the courts.” Ah Quin, 733 F.3d at 276. It not only

leaves victims without redress, but also eliminates a

deterrent against future misconduct against others.

This “undermines enforcement of the substantive

law.” 18B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 4477.9 (3d ed. 2025,

Westlaw). At the very least, a court should have to

find that a plaintiff actually intended to manipulate

the legal system before dismissing such claims.

This case illustrates the pernicious consequences

of the Fifth Circuit’s approach. Because Mr. Keathley

did not immediately disclose his claims to the

bankruptcy court, he has been barred from receiving

any compensation from respondent for serious

injuries that required costly medical care and which

continue to impact his daily life. See ROA.2410-16. It

made zero difference under the Fifth Circuit’s rigid

rule that “there was evidence that Keathley’s failure

to disclose the personal injury claim[s] on his

bankruptcy schedules was an honest mistake,” or that

the delay in disclosing the claims did “not impact

Keathley’s creditors.”

App.21a (Haynes, J.,

concurring in the judgment).

Meanwhile,

respondent—the party allegedly responsible for

Mr. Keathley’s injuries—gets off scot-free for tortious

conduct, even though respondent was indisputably

not harmed by Mr. Keathley’s delay in disclosing the

claims because respondent is “totally unrelated to the

bankruptcy.” Id. This makes no sense.

2. This case presents an ideal vehicle for resolving

the circuit conflict. Both lower courts reached a result

that they believed was required by the Fifth Circuit’s

“rigid and unforgiving” precedents. App. 55a (district

court August 2023 opinion); see id. at 18a-19a (panel

opinion). Judge Haynes wrote separately to note her

disagreement with the Fifth Circuit’s rule, explaining

that “preventing Keathley’s personal injury action

might undermine the judicial system the [judicial

estoppel] doctrine claims to protect” and result in an

“unwarranted windfall” to the defendant allegedly

“responsible for the car crash.” Id. at 21a-22a. And

this case would have come out differently in circuits

that follow the majority rule, which would have

required subjective bad faith on Mr. Keathley’s part.

Despite his injuries, Mr. Keathley promptly

notified his bankruptcy attorney of his motor vehicle

accident and the basis for his resulting personal

injury claims and reasonably relied on his bankruptcy

counsel to take any necessary steps. ROA.1217. Mr.

Keathley also submitted evidence that his bankruptcy

counsel’s failure to promptly bring the personal injury

claims to the bankruptcy court’s attention was in line

with the regular practice of attorneys and debtors in

the relevant district. App. 59a. And he filed a sworn

affidavit attesting that he “never intended to make

any misrepresentations” about the existence of his

personal injury claims. ROA.1217. These sorts of

mitigating facts would preclude the application of

judicial estoppel under a test like the Eleventh

Circuit’s. See, e.g., Ryder v. Lifestance Health Grp.,

Inc., No. 22-cv-2050, 2024 WL 1119821, at *4-5 (M.D.

Fla. Feb. 12, 2024) (rejecting application of judicial

estoppel where, among other things, the debtor had

“discussed the possibility of suing [the defendant]

with his bankruptcy lawyer” and “relatively ‘quickly

amended’” his bankruptcy schedule “‘once [his]

counsel discovered the issue with the initial

disclosure’” (alteration in original) (citation omitted)).

Not only is this case an ideal vehicle—this is also

the right time for this Court to resolve this issue.

Most circuits have weighed in on the question

presented. See supra Section I, see also, e.g., Slater,

871 F.3d at 1189 (recognizing that the Fifth and

Tenth Circuits apply tests “consistent” with the

Eleventh Circuit’s previous caselaw but “find[ing] the

analysis of the Sixth, Seventh, and Ninth Circuits to

be more persuasive”). And the minority view of the

Fifth and Tenth Circuits—which the Fifth Circuit has

followed for decades—is entrenched and not going

away without this Court’s intervention.

III. THE DECISION BELOW IS WRONG

The Fifth Circuit’s minority position on the

question presented is wrong. It flouts this Court’s

precedents, the equitable principles judicial estoppel

seeks to vindicate, and Congress’s policy decisions

about the bankruptcy system.

1. As this Court has explained, the doctrine of

judicial estoppel is designed to thwart “deliberate[]”

and “intentional” switches in a litigant’s position

aimed at securing an unfair advantage.

New

Hampshire v. Maine, 532 U.S. 742, 749-51, 753 (2001)

(citations omitted). In other words, “[t]he essential

function of judicial estoppel is to prevent intentional

inconsistency; the object of the rule is to protect the

judiciary, as an institution, from the perversion of

judicial machinery.” Edwards v. Aetna Life Ins. Co.,

690 F.2d 595, 599 (6th Cir. 1982) (emphasis added);

see, e.g., Montrose Med. Grp. Participating Sav. Plan

v. Bulger, 243 F.3d 773, 779 (3d Cir. 2001) (“[J]udicial

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.’” (citation omitted)).

Yet the Fifth Circuit’s test ignores evidence of

subjective intent altogether—instead relying of the

mere existence of a potential motive to mislead. See

supra at 9-10. That misdirected inquiry fails to

“advance[]” “the goals of the [judicial estoppel]

doctrine.” App. 21a (Haynes, J., concurring in the

judgment). As the unanimous en banc Eleventh

Circuit explained, “equity cannot condone a

defendant’s avoidance of liability through a doctrine

premised upon intentional misconduct without

establishing such misconduct.” Slater, 871 F.3d at

1188. The Fifth Circuit’s approach unfairly presumes

the worst of individual debtors as a class, harkening

back to long-ago discredited views of bankruptcy—

and those who find themselves in bankruptcy.

The Fifth Circuit’s approach violates the

animating rationales of judicial estoppel in other

ways, too. As an equitable doctrine, judicial estoppel

is—by definition—supposed to yield equitable results.

E.g., New Hampshire, 532 U.S. at 749-51. But the

Fifth Circuit’s unforgiving rule often “produc[es] a

decidedly non-equitable result”—benefitting alleged

wrongdoers that have engaged in conduct ranging

from discrimination in violation of federal law to

tortious acts, see supra at 22-23, at the expense of

innocent debtors and innocent creditors—“counter to

the very underpinnings of judicial estoppel.”

Martineau, 934 F.3d at 396; see supra at 23.4

Moreover, dismissing claims that may have real value

to innocent creditors does far more to undermine the

“integrity of the [courts]” than does permitting a

debtor to temporarily adopt (and then clarify or

4 The harsh consequences of the Fifth Circuit’s rule are

especially troubling in the Chapter 13 context because

Chapter 13 debtors in different parts of the country may have

different

obligations

for

disclosing

post-petition

post-confirmation claims. See In re Boyd, 618 B.R. 133, 147-57

(Bankr. D.S.C. 2020) (explaining that the Bankruptcy Code and

Rules do not impose such a duty, but that some courts have done

so); see also 9 Collier on Bankruptcy ¶ 1007.08 (16th ed. 2025)

(noting that Bankruptcy Rule 1007(h) does not require

scheduling all post-petition property and opining that such a

requirement “would be completely impracticable”).

correct) two allegedly contrary positions.

New

Hampshire, 532 U.S. at 749-50 (citation omitted).

The Fifth Circuit’s rigid “inadvertence” test also

contradicts the flexible nature of the equitable

judicial estoppel doctrine. This Court has held time

and again that “[e]quity eschews mechanical rules.”

Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946).

Instead, the “exercise of a court’s equity power”

generally “must be made on a case-by-case basis”—

considering all the relevant factors. Holland v.

Florida, 560 U.S. 631, 649-50 (2010) (citation

omitted). Moreover, this Court has emphasized that

the equitable doctrine of judicial estoppel is not

amenable to “inflexible prerequisites or an exhaustive

formula.” New Hampshire, 532 U.S. at 751; see also

Zedner, 547 U.S. at 504. The Fifth Circuit’s “rigid”

and “unforgiving” presumption of bad faith, App. 55a,

exemplifies one such forbidden “mechanical rule.”

2. The Fifth Circuit’s rule also undermines

Congress’s policy decisions about the bankruptcy

system. “[T]he Bankruptcy Code and Rules liberally

permit debtors to amend their disclosures when an

omission is discovered.” Slater, 871 F.3d at 1186. It

“inconsistent”

with

that

regime—“which

recognize[s] that omissions occur and liberally

allow[s] amendment and correction of disclosures—to

infer that a debtor who failed to disclose a lawsuit

necessarily meant to manipulate the bankruptcy

proceedings.” Id. at 1187.

Nor is the Fifth Circuit’s rigid rule justified in the

name of deterrence, as bankruptcy courts already

have a number of tools in their arsenal for

“punish[ing] a debtor who [they] determine[]

purposefully tried to hide assets.” Id. For example, a

“bankruptcy court or trustee can impose sanctions,

including denial of a discharge.” Ah Quin, 733 F.3d

at 275; see Fed. R. Bankr. P. 9011(c). “And, of course,

a case may be referred to the United States Attorney’s

office for criminal prosecution.” Ah Quin, 733 F.3d at

275; see 18 U.S.C. § 152 (criminalizing the knowing

and fraudulent concealment of assets and making of

false oaths or claims). Given the “extensive range of

perfectly adequate criminal and civil legal remedies”

Congress has provided for “punish[ing] oath-breaking

debtors,” Slater, 820 F.3d at 1239 (Tjoflat, J., specially

concurring), deterrence does not justify loading the

dice in favor of applying estoppel to bar civil claims

unrelated to the bankruptcy.

Finally, the Fifth Circuit’s rule is contrary to

bankruptcy’s policy of granting debtors a “‘fresh

start.’” Harris v. Viegelahn, 575 U.S. 510, 513 (2015).

The debtor here successfully completed his courtapproved bankruptcy plan, repaying his creditors.

Yet the Fifth Circuit’s harsh rule has terminated a

personal injury action against a defendant with no

connection to the bankruptcy, depriving Mr. Keathley

of a damages remedy that would redress the personal

and economic hardship inflicted on him by

respondent’s tortious conduct in the form of medical

expenses, lasting pain, and a more limited ability to

secure gainful employment.

All that severely

dampens the fresh start to which Mr. Keathley is

entitled under the bankruptcy laws.

The Fifth Circuit’s erroneous rule is eliminating

the potentially valid claims of ordinary Americans

who, having found themselves in bankruptcy, already

face enough hardship in righting their affairs, or, as

is true here, have successfully navigated bankruptcy

to seek a fresh start. This Court’s review is needed.

CONCLUSION

The petition for a writ of certiorari should be

granted.

KRISTIN C. HOLLADAY

LATHAM & WATKINS LLP

1271 Avenue of the

Americas

New York, NY 10020

ERIC J. LEWELLYN

ALDERS AND LEWELLYN

PLLC

1331 Union Avenue

Suite 1000

Memphis, TN 38104

Respectfully submitted,

GREGORY G. GARRE

Counsel of Record

CHRISTINA R. GAY

LATHAM & WATKINS LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioner

June 27, 2025

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Fifth Circuit, Keathley v. Buddy

Ayers Construction, Inc., No. 24-60025,

2025 WL 673434 (5th Cir. Mar. 3, 2025) ...........1a

Order of the United States District Court for

the Northern District of Mississippi,

Keathley v. Buddy Ayers Construction, Inc.,

706 F. Supp. 3d 628 (N.D. Miss. 2023) ............24a

Order of the United States District Court for

the Northern District of Mississippi,

Keathley v. Buddy Ayers Construction, Inc.,

686 F. Supp. 3d 495 (N.D. Miss. 2023) ............39a

Order Denying Petition for Rehearing,

Keathley v. Buddy Ayers Construction, Inc.,

No. 24-60025 (5th Cir. Mar. 31, 2025), ECF

No. 75-1 .............................................................57a

Affidavit of Kellie M. Emerson (dated Aug. 17,

2023), Dist. Ct. Dkt. No. 169-5 (ROA.238587) ......................................................................58a

[2025 WL 673434]

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States

Court of Appeals

Fifth Circuit

FILED

March 3, 2025

Lyle W. Cayce

Clerk

No. 24-60025

THOMAS KEATHLEY,

Plaintiff—Appellant,

versus

BUDDY AYERS CONSTRUCTION, INCORPORATED,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:21-CV-261

Before HIGGINBOTHAM, STEWART,

Circuit Judges.

and

HAYNES,

PER CURIAM:*

In August 2021, Thomas Keathley was involved in

a motor vehicle collision with a driver employed by

This opinion is not designated for publication. See 5th

CIR. R. 47.5.

Buddy Ayers Construction, Inc. (“BAC”). As a result,

Keathley filed this personal injury suit against BAC

alleging claims of negligence and vicarious liability.

BAC then moved for summary judgment on grounds

of judicial estoppel because Keathley had failed to

disclose his cause of action against BAC in his

pending bankruptcy proceedings. The district court

granted BAC’s summary judgment motion and

dismissed Keathley’s lawsuit. Keathley moved for

reconsideration of the district court’s judgment and

the district court denied his motion. Keathley now

appeals the district court’s summary judgment in

favor of BAC dismissing his lawsuit on grounds of

judicial estoppel. He also appeals the district court’s

denial of his motion for reconsideration. Because we

conclude that the district court did not abuse its

discretion in dismissing Keathley’s lawsuit and in

denying his motion for reconsideration, we AFFIRM.

I. FACTUAL & PROCEDURAL BACKGROUND

On December 27, 2019, Keathley filed a Chapter

13 Voluntary Petition for Bankruptcy and a Chapter

13 Plan in the United States Bankruptcy Court for

the Eastern District of Arkansas. A few months later

in March 2020, Keathley filed an Amended Plan, and

the bankruptcy court confirmed the plan in April

2020.

According to the record and Keathley’s

deposition testimony, he had also previously filed for

bankruptcy in 2001, 2003, and 2015.

On August 23, 2021, Keathley was involved in a

motor vehicle collision with David Fowler in Alcorn,

Mississippi. At the time of the collision, Fowler was

employed as a truck driver for BAC. Keathley

claimed that within hours of the collision he began

experiencing pain in his back and neck and sought

medical treatment. One day later, Keathley retained

a personal injury attorney. Then on December 29,

2021, Keathley filed his personal injury lawsuit

against BAC and Fowler in the United States District

Court for the Northern District of Mississippi.1

Although Keathley claims that he informed his

bankruptcy attorney, Bart Ziegenhorn, that he had

filed a personal injury lawsuit, neither Keathley nor

Ziegenhorn disclosed the personal injury cause of

action to the bankruptcy court. Several months later

on March 1, 2022, Keathley filed a Modified Chapter

13 Plan with the bankruptcy court, but again failed to

disclose his personal injury lawsuit. On June 27,

2022,

Keathley

filed

two

additional

Amended/Modified Plans with the bankruptcy court,

and once again, failed to disclose his pending personal

injury lawsuit. The bankruptcy court confirmed

Keathley’s Modified Plan on July 20, 2022.

In December 2022, Keathley filed his first

amended complaint in the personal injury lawsuit

against BAC, requesting additional damages but

again, failed to advise the bankruptcy court of the

personal injury lawsuit. On March 30, 2023, BAC

moved for summary judgment on Keathley’s personal

Keathley’s personal injury lawsuit was filed in federal

district court pursuant to 28 U.S.C. § 1332. Because the

existence of diversity jurisdiction under § 1332 was not clear

from the record when this case was originally submitted on

appeal, this court issued a limited remand for the district court

to make a determination as to whether diversity jurisdiction

exists in this case. On remand, the district court determined

that complete diversity exists among the parties herein, so we

now proceed to the merits.

injury claims on grounds of judicial estoppel.2 In its

motion, BAC argued that Keathley should be

judicially estopped from pursuing his personal injury

lawsuit due to his failure to notify the bankruptcy

court of the pending cause of action. In support, BAC

pointed to Keathley’s continuing duty to disclose all

assets to the bankruptcy court, which included all

contingent and unliquidated claims. BAC argued

that Keathley breached this duty by failing to disclose

his personal injury lawsuit, even though he had filed

to amend his Chapter 13 Plan at least three times

after he filed his lawsuit against BAC.

Four days later, on April 4, 2023, Keathley filed an

Amended Schedule notifying the bankruptcy court

that he had a pending personal injury lawsuit against

BAC. On April 12, 2023, Keathley responded to

BAC’s motion for summary judgment. Then on April

14, 2023, Keathley filed a motion in the bankruptcy

court seeking approval of a settlement that he had

received in December 2022 for a workers’

compensation claim that he filed after the August

2021 vehicle collision with BAC.

On August 8, 2023, the district court granted

summary judgment in favor of BAC on grounds of

judicial estoppel. In its order, the district court

observed that, although Keathley “was aware of his

cause of action in [the personal injury] case, . . . he

nevertheless filed Second, Third and Fourth

Amended Chapter 13 Bankruptcy Plans which failed

to list this cause of action as an asset of his

Fowler also moved for summary judgment on Keathley’s

personal injury claims on grounds of judicial estoppel. On June

6, 2023, however, the parties stipulated to the dismissal with

prejudice of Keathley’s claims against Fowler.

bankruptcy estate.” The district court then concluded

that, under controlling Fifth Circuit precedent,

Keathley’s failure to disclose his pending personal

injury cause of action as an asset in the bankruptcy

proceedings resulted in his being judicially estopped

from proceeding with his lawsuit against BAC. The

district court explained that it was bound by

longstanding Fifth Circuit jurisprudence which had

been developed to protect “the integrity of the

bankruptcy process and the federal courts as a

whole[.]” The district court further noted that this

court’s approach “give[s] clear warning to any debtors

thinking of failing to disclose lawsuits [because] if

their deception is discovered, they will not simply be

allowed to plead an honest mistake and file an

amended disclosure.” The district court then issued a

final judgment dismissing Keathley’s lawsuit against

BAC.

On September 9, 2023, pursuant to Rule 59(e),

Keathley filed a “Motion to Alter or Amend

Judgment” requesting that the district court

reconsider its prior ruling and deny BAC’s motion for

summary judgment. See FED. R. CIV. P. 59(e). In his

motion, Keathley contended that “newly discovered

evidence” demonstrated that judicial estoppel was not

appropriate in his case. To that end, he attached the

affidavit of Kellie Emerson, a staff attorney for the

office of the Chapter 13 Trustee for the Eastern and

Western Districts of Arkansas. In her affidavit,

Emerson stated that “there is nothing unusual or

misleading about [Keathley] not disclosing [to the

bankruptcy court] the personal injury action while

the personal injury action is ongoing.” She continued

that “[i]n the Eastern District of Arkansas, it is not

uncommon for debtors to amend their bankruptcy

filings to disclose post-petition claims for personal

injury actions prior to the settlement or resolution of

the personal injury action.” According to Keathley,

Emerson’s affidavit supported his “position that the

non-disclosure of the personal injury claims was

inadvertent.”

On December 14, 2023, the district court issued an

order denying Keathley’s Rule 59(e) motion for

reconsideration. In its order, the district court made

two key observations. First, it noted that, as far as it

could discern, Emerson’s affidavit was not “newly

discovered evidence” because nothing prevented

Keathley from obtaining and submitting it prior to the

district court issuing its ruling on BAC’s summary

judgment motion. As such, it determined that

Emerson’s affidavit failed to constitute a proper basis

for a rehearing motion. The district court then

proceeded to offer dicta rejecting Keathley’s argument

that Emerson’s affidavit supported his position that

his non-disclosure of his personal injury suit was

“inadvertent.” To the contrary, the district court

reasoned that Emerson’s affidavit, if true, suggested

that “it is a common practice among bankruptcy

attorneys in the Eastern District of Arkansas,

presumably with full knowledge of what they are

doing, not to list tort claims until shortly before they

are settled or otherwise resolved.” Consequently, the

district court explained, “bankruptcy debtors in that

district, acting through their attorneys, routinely

make a conscious and intentional decision not to list

tort claims which they know about until such time as

those claims are close to being resolved.” According

to the district court, bringing this common practice to

light undermined, rather than supported, Keathley’s

position that his non-disclosure was inadvertent. If

anything, the district court reasoned, Emerson’s

affidavit suggested that Keathley’s non-disclosure

may have been intentional which cut against him

given “that a crucial factor in deciding judicial

estoppel issues in the Fifth Circuit is whether a

debtor can be inferred to have acted intentionally in

failing to list a tort claim as an asset of the

bankruptcy estate.”

Keathley appealed the district court’s summary

judgment order and judgment dismissing his case, as

well as its order denying his Rule 59(e) motion for

reconsideration.

II. STANDARD OF REVIEW

Summary judgment is proper when “there is no

genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a). However, “because judicial

estoppel is an equitable doctrine, and the decision

whether to invoke it is within the court’s discretion,

we review for abuse of discretion the lower court’s

decision to invoke this doctrine.” Allen v. C & H

Distrib., L.L.C., 813 F.3d 566, 572 (5th Cir. 2015)

(cleaned up). We will conclude that “[a] district court

abuses its discretion if it: (1) relies on clearly

erroneous factual findings; (2) relies on erroneous

conclusions of law; or (3) misapplies the law to the

facts.” Id. (citations omitted).

We also review a district court’s denial of a Rule

59(e) motion to alter or amend a judgment for abuse

of discretion. See Allen v. Walmart Stores, L.L.C., 907

F.3d 170, 184 (5th Cir. 2018). “However, if a party

appeals from the denial of a Rule 59(e) motion that is

solely a motion to reconsider a judgment on its merits,

de novo review is appropriate.” Piazza’s Seafood

World, L.L.C. v. Odom, 448 F.3d 744 749 (5th Cir.

2006). The applicable standard depends on whether

the district court considered the “newly discovered”

materials attached to the motion. See Templet v.

HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004).

“If the materials were considered by the district court,

and the district court still grants summary judgment,

the appropriate appellate standard of review is de

novo.” Id. “However, if the district court refuses to

consider the materials, the reviewing court applies

the abuse of discretion standard.” Id. “Under this

standard of review, the district court’s decision and

decision-making process need only be reasonable.” Id.

III. DISCUSSION

Keathley raises a number of issues on appeal,

many of which are encompassed in his broader

argument that the district court abused its discretion

in concluding that BAC was entitled to summary

judgment on the basis of judicial estoppel. Keathley

also contends that the district court abused its

discretion in declining to consider Emerson’s affidavit

in his Rule 59(e) motion. Finally, he urges this court

to reconsider its judicial estoppel jurisprudence and

“bring it more in line with other [c]ircuits.” We are

unpersuaded.

A. Judicial Estoppel

We first address Keathley’s argument that the

district court abused its discretion in granting

summary judgment in favor of BAC on grounds of

judicial estoppel. In support of his position, he

contends that the district court “made errors of law

and misapplied the law to the facts by failing to

conduct a specific fact-based inquiry into whether the

elements of judicial estoppel had been met and

instead applying judicial estoppel as an inflexible per

se rule.” He further argues that he submitted

evidence to the trial court establishing that his failure

to disclose his personal injury claim to the bankruptcy

court was inadvertent and in good faith which

“create[d] a genuine factual dispute on the question of

inadvertence such that summary judgment was

inappropriate.” He also asserts that the facts of his

case are distinguishable from prior Fifth Circuit

caselaw applying judicial estoppel and thus summary

judgment in favor of BAC was improper in this case.

We disagree in all respects.

“Judicial estoppel is a common law doctrine that

prevents a party from assuming inconsistent

positions in litigation.” Allen, 813 F.3d at 572

(citations omitted). The purpose of the doctrine “is to

protect the integrity of the judicial process, by

preventing parties from playing fast and loose with

the courts to suit the exigencies of self interest.” Id.

(cleaned up). “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.” Id.

(citation omitted).

“[T]he integrity of the bankruptcy system depends

on full and honest disclosure by debtors of all of their

assets.” Love v. Tyson Foods, Inc., 677 F.3d 258, 261

(5th Cir. 2012) (internal quotation marks and citation

omitted). For this reason, “the Bankruptcy Code and

Rules impose upon bankruptcy debtors an express,

affirmative duty to disclose all assets, including

contingent and unliquidated claims.” Id. (alteration

omitted); see 11 U.S.C. § 521(1). “The obligation to

disclose pending and unliquidated claims in

10a

bankruptcy proceedings is an ongoing one.” Id.

Relevant here, “[t]he disclosure requirement pertains

to potential causes of action as well.” Id.

“[J]udicial estoppel is not governed by inflexible

prerequisites or an exhaustive formula for

determining its applicability, and numerous

considerations may inform the doctrine’s application

in specific factual contexts.”

Id. (cleaned up).

Nevertheless, “[t]his court has noted that judicial

estoppel is particularly appropriate where a party

fails to disclose an asset to a bankruptcy court, but

then pursues a claim in a separate tribunal based on

that undisclosed asset.” Id. at 261–62 (cleaned up).

Still, “[j]udicial estoppel will not apply if the nonmoving party’s failure to disclose was inadvertent,

meaning that he did not know of his inconsistent

position or had no motive to conceal it from the court.”

United States ex rel. Bias v. Tangipahoa Par. Sch.

Bd., 766 F. App’x 38, 43 (5th Cir. 2019) (unpublished)

(citing Jethroe v. Omnova Sols., Inc., 412 F.3d 598,

601 (5th Cir. 2005)). “Whether a debtor’s failure to

disclose claims was inadvertent presents a question of

fact.” Love, 677 F.3d at 262 (citation omitted).

We now turn to the first two elements of judicial

estoppel: (1) whether Keathley has “asserted a legal

position that is plainly inconsistent with a prior

position”; and (2) whether the bankruptcy court

“accepted the prior position[.]” Allen, 813 F.3d at 572.

Keathley argues that he did not take a position in his

bankruptcy proceedings that was inconsistent with

his personal injury claims against BAC because

(1) his personal injury suit was not pending at the

time he originally filed his Chapter 13 Petition with

the bankruptcy court and (2) none of the Amended

Chapter 13 Plans that he submitted after his personal

11a

injury lawsuit was pending contained any statements

regarding his assets. He further argues that “[g]iven

that no such inconsistent positions were taken, it

would be impossible for the bankruptcy court to have

accepted any inconsistent positions.” His arguments,

however, do not withstand the controlling law of this

circuit.

As this court has consistently held, “the law on

disclosure [is] well settled: Chapter 13 debtors have

a continuing obligation to disclose post-petition

causes of action.” In re Flugence, 738 F.3d 126, 129

(5th Cir. 2013) (citing In re Coastal Plains, Inc., 179

F.3d 197, 207–08 (5th Cir. 1999) (“The duty of

disclosure in a bankruptcy proceeding is a continuing

one, and a debtor is required to disclose all potential

causes of action.”); Superior Crewboats, Inc. v.

Primary P & I Underwriters (In re Superior

Crewboats, Inc.), 374 F.3d 330, 335 (5th Cir. 2004)

(“The duty to disclose is continuous.”); Jethroe, 412

F.3d at 600 (“The obligation to disclose pending and

unliquidated claims in bankruptcy proceedings is an

ongoing one.”); Kane v. Nat’l Union Fire Ins. Co., 535

F.3d 380, 384–85 (5th Cir. 2008) (“Pursuant to the

Bankruptcy Code, debtors are under a continuing

duty to disclose all pending and potential claims.”)).

Thus, it makes no difference that Keathley’s personal

injury lawsuit was not pending at the time he initially

filed his Chapter 13 Petition with the bankruptcy

court because the duty of disclosure is a continuing

one. See id. As the record reflects, he filed three

Amended/Modified Chapter 13 Plans with the

bankruptcy court after he filed his personal injury

lawsuit against BAC. Accordingly, even if Keathley

failed to notify the bankruptcy court of his personal

injury suit when he initially filed it, each of these

12a

post-petition filings represented another opportunity

for him to make the disclosure. Yet he chose not to

disclose his cause of action not only when he originally

filed it, but also three additional times thereafter.

Because Keathley “had an affirmative duty to disclose

[his] personal-injury claim to the bankruptcy court

and did not do so, [he] impliedly represented that [he]

had no such claim.” In re Flugence, 738 F.3d at 130.

His position, therefore, was “plainly inconsistent”

with his later assertion of his personal injury claims

in his lawsuit against BAC. Id.

Further, the bankruptcy court confirmed

Keathley’s Amended Plan. It thus accepted his prior

position of having no pending personal injury cause of

action “by omitting any reference to [Keathley’s]

personal-injury claim in the modified plan.” Id. “Had

the [bankruptcy] court been aware of [his] claim, it

may well have altered the plan.” Id.; see also

Tangipahoa Par. Sch. Bd., 766 F. App’x at 42 (“This

continuing obligation exists because the inclusion of

assets in the bankruptcy estate is often a contested

issue, and the debtor’s duty to disclose assets—even

where he has a colorable theory for why those assets

should be shielded from creditors—allows that issue

to be decided as part of the orderly bankruptcy

process.”) (internal quotation marks omitted) (citing

Allen, 813 F.3d at 572 (quoting Flugence, 738 F.3d at

130)). Thus, we conclude here—as we have before on

nearly identical facts—that “the first two elements of

judicial estoppel apply.” Id.

Finally, we turn to the third element of judicial

estoppel: whether Keathley’s failure to disclose his

personal injury lawsuit to the bankruptcy court was

inadvertent. See Allen, 813 F.3d at 572. As we have

stated, “in considering judicial estoppel for

13a

bankruptcy cases, 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.” In re Coastal Plains, Inc., 179 F.3d at

210 (internal quotation marks and citations omitted).

Although Keathley does not argue that he had no

knowledge of his personal injury lawsuit against

BAC, he contends that he had no motive to conceal his

claims from the bankruptcy court because he did not

realize he had a duty to disclose them. In support, he

cites to Emerson’s affidavit, contending that it “it

offers evidence that [his] non-disclosure was not

unusual and is, in fact, routine in the Eastern District

of Arkansas.”

As an initial matter, this court has held that “the

controlling inquiry, with respect to inadvertence, is

the knowing of facts giving rise to inconsistent

positions.” In re Flugence, 738 F.3d at 130–31 (“[A]

[party’s] lack of awareness of a statutory disclosure

duty for [ ] legal claims is not relevant.”). We thus

reject as meritless Keathley’s argument that he did

not realize he had a duty to disclose his personal

injury cause of action to the bankruptcy court. Id.

Moreover, as Keathley conceded in his deposition

testimony, this is his fourth time to file for

bankruptcy. We are thus hard pressed to accept his

representation that he was unaware that he had a

continuing duty to disclose his personal injury cause

of action given his familiarity with the bankruptcy

process.

Additionally, with respect to Keathley’s

contentions regarding Emerson’s affidavit, we agree

with both the district court and BAC that the

affidavit, if anything, cuts against Keathley’s

14a

argument that his nondisclosure was inadvertent.

Pointing out that “non-disclosure was not unusual

and is, in fact, routine in the Eastern District of

Arkansas,” suggests that Keathley’s nondisclosure

was actually intentional—not inadvertent as he

claims.

We are further unpersuaded by Keathley’s

argument that Emerson’s affidavit demonstrates his

lack of motive for concealment “by establishing that

the non-disclosure of the personal injury case was

completely inconsequential to the administration of

the bankruptcy [because he] stood to gain nothing,

and has gained nothing, by the non-disclosure.” As

the district court pointed out, under the terms of his

Chapter 13 Plan, Keathley has an interest-free

repayment plan which is spread over five years. And

as the record indicates, Keathley has filed multiple

times to have his interest-free repayment plan

extended. If he had disclosed his personal injury

claims to the bankruptcy court, his creditors would

have had an opportunity to object to his interest-free

plan on grounds that his personal injury suit, if

successful, would have generated enough revenue to

cover the interest he owed on his debts. See In re

Watts, 2012 WL 3400820, at *8 (Bankr. S.D. Tex. Aug.

9, 2012). Thus, we agree with the district court that

Keathley stood to potentially benefit by concealing his

personal injury case from the bankruptcy court.

Additionally, as this court has made clear, “the

motivation sub-element is almost always met if a

debtor fails to disclose a claim or possible claim to the

bankruptcy court”—as Keathley has failed to do in

this case. Love, 677 F.3d at 262. For these reasons,

we conclude that the third element of judicial estoppel

applies because Keathley cannot show that his failure

15a

to disclose his personal injury lawsuit was

inadvertent. In re Coastal Plains, Inc., 179 F.3d at

210.

In sum, we hold that the district court did not

abuse its discretion in granting summary judgment in

favor of BAC on grounds of judicial estoppel. See

Allen, 813 F.3d at 572.

B. Rule 59(e) Motion

Keathley further argues that the trial court

abused its discretion in denying his Rule 59(e) motion.

Specifically, he argues that the district court erred in

failing to consider Emerson’s affidavit because the

facts contained therein “demonstrate that none of the

elements of judicial estoppel have been established.”

Again, we disagree.

“A Rule 59(e) motion calls into question the

correctness of a judgment.” Templet, 367 F.3d at 478

(internal quotation marks and citation omitted); see

also FED. R CIV. P. 59(e).

As this court has

consistently held, “such a motion is not the proper

vehicle for rehashing evidence, legal theories, or

arguments that could have been offered or raised

before the entry of judgment.” Id. at 478–79 (citation

omitted). “Rather, Rule 59(e) serves the narrow

purpose of allowing a party to correct manifest errors

of law or fact or to present newly discovered evidence.”

Id. at 479 (cleaned up).

We have further

acknowledged that “[r]econsideration of a judgment

after its entry is an extraordinary remedy that should

be used sparingly.” Id. (citation omitted).

As a preliminary matter, we note that our review

of the district court’s judgment denying Keathley’s

Rule 59(e) motion is for abuse of discretion because

the district court refused to consider the “newly

16a

discovered evidence” that Keathley sought to admit in

support of his motion, i.e., Emerson’s affidavit. Id. at

477. We therefore only need to decide if “the district

court’s decision and decision-making process” were

“reasonable.” Id.

According to Keathley, Emerson’s affidavit was

not available to him or his counsel before he

responded to BAC’s summary judgment motion

because he only had fourteen days to respond. In

support, he claims that acquiring Emerson’s affidavit

“was not a simple task” because it required

“[c]ontacting [ ] Emerson, securing approval from her

supervisors for her cooperation, consulting with her

to discover what information she possessed, the

preparation and revision of an [a]ffidavit, and several

rounds of review of the [a]ffidavit by [ ] Emerson and

her supervisor” all of which “took a substantial

amount of time and effort.” But as the district court

recognized, Emerson’s affidavit was not “newly

discovered evidence” just because it was difficult for

Keathley to obtain it.

As Emerson’s affidavit

explains, she is employed as a staff attorney for the

office of the Chapter 13 Trustee for the Eastern and

Western Districts of Arkansas and she is personally

assigned to Keathley’s bankruptcy case. She further

states that “[t]hroughout the duration of their

bankruptcy, [she] ha[s] communicated with Mr. and

Mrs. Keathley directly and through their attorney,

Bart Ziegenhorn.”

Assuming Emerson’s affidavit is accurate, she and

Keathley have been in contact both directly and

indirectly “throughout the duration of [Keathley’s]

bankruptcy” which he filed on December 27, 2019,

and had been pending for at least two years before

Keathley filed his personal injury lawsuit against

17a

BAC in December 2021. Accordingly, Keathley had

been aware of Emerson’s “specialized knowledge of

the customs and practices of bankruptcy courts” in

the Eastern District of Arkansas for nearly four years

before he moved for reconsideration in September

2023 on grounds that this information was “newly

discovered evidence.” And as BAC points out on

appeal, if this was not enough time to obtain

Emerson’s affidavit, Keathley could have moved for

additional time to respond to BAC’s summary

judgment motion as he had done before during the

pendency of the proceedings. He could have also

moved to supplement his response to BAC’s motion

between March and August 2023, when BAC’s

summary judgment motion was pending before the

district court. But Keathley did none of this. We

therefore reject his arguments as too little and too

late.

As the district court explained, its “rulings are not

an invitation for an ongoing dialogue with the parties;

to the contrary, both sides are obligated to collect and

present whatever evidence they feel is relevant before

[the district] court has issued its ruling.” Moreover,

as we have stated herein supra, we agree with the

district court that, had it considered Emerson’s

affidavit, it would have only undermined Keathley’s

position that his nondisclosure was inadvertent. This

is because the affidavit for the most part merely

explains that the usual practice in the Eastern

District of Arkansas is not to disclose pending

personal injury lawsuits to the bankruptcy courts

until shortly before they are resolved or settled. This

suggests that Keathley’s failure to disclose his

personal injury cause of action to the bankruptcy

court was likely intentional, not inadvertent, which

18a

further supports the district court’s application of

judicial estoppel in this case.

For these reasons, we hold that the district court

did not abuse its discretion in denying Keathley’s

Rule 59(e) motion on grounds that Emerson’s affidavit

was not “newly discovered evidence” and thus not a

proper basis for a rehearing motion. Templet, 367

F.3d at 478–79.

C. Fifth Circuit Jurisprudence

Finally, in his brief on appeal Keathley engages in

a lengthy discussion about the evolution, history,

purpose, and general application of this court’s

judicial estoppel jurisprudence. He further requests

that we reconsider our judicial estoppel jurisprudence

and “bring it more in line with other [c]ircuits.” In

other words, he urges us to take a more lenient

approach in our application of judicial estoppel so that

he can obtain a more favorable outcome in these

proceedings. Given our holding herein, however, it is

unnecessary for us to address Keathley’s arguments

on this issue. And even if we did, we would still reject

them because we are bound by the rule of orderliness

to apply the applicable, controlling caselaw in this

circuit. See United States v. Traxler, 764 F.3d 486,

489 (5th Cir. 2014) (internal citations and quotation

marks omitted) (“It is a well-settled Fifth Circuit rule

of orderliness that one panel of our court may not

overturn another panel’s decision, absent an

intervening change in the law, such as by a statutory

amendment, or the Supreme Court, or our en banc

court.” (citation omitted)). Indeed, even Keathley

concedes on appeal that he “is unaware of any Fifth

Circuit opinion allowing a plaintiff’s claim to survive

a challenge under judicial estoppel when there is an

issue of non-disclosure to a bankruptcy court.” We are

19a

thus bound by the law in this circuit as it currently

exists and reject Keathley’s invitation to circumvent

our longstanding precedent to achieve an outcome in

his favor.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s judgment dismissing Keathley’s lawsuit

against BAC, as well as its order granting summary

judgment in favor of BAC on grounds of judicial

estoppel. We also AFFIRM the district court’s order

denying Keathley’s Rule 59(e) motion.

20a

HAYNES, Circuit Judge, concurring in the judgment:

I concur in the judgment only because it is based

upon our precedent. See, e.g., United States ex rel.

Long v. GSDMidea City, LLC, 798 F.3d 265, 270 (5th

Cir. 2015). However, I respectfully disagree with our

precedent in cases like the present.

Although

Keathley’s bankruptcy case was ongoing, it was the

district court that determined he should be judicially

estopped from proceeding with his unrelated personal

injury claim. In a situation like this one, where the

personal injury lawsuit was filed in a different district

(and even a different circuit) and involves a defendant

unrelated to the ongoing bankruptcy proceedings, I

believe it best to defer to the bankruptcy court’s

evaluation regarding whether the plaintiff should be

allowed to proceed.1

“[W]e apply judicial estoppel against the backdrop

of the bankruptcy system and the ends it seeks to

achieve.” Reed v. City of Arlington, 650 F.3d 571, 574

(5th Cir. 2011) (en banc) (internal quotation marks

and citation omitted). The doctrine aims to “deter

dishonest debtors, whose failure to fully and honestly

disclose all their assets undermines the integrity of

the bankruptcy system,” while “protecting the rights

of creditors to an equitable distribution of the assets

of the debtor’s estate.” Id. At its core, judicial

estoppel is equitable in nature. It focuses on whether

a party’s change in position “would adversely affect

the proceeding or constitute a fraud on the court.”

Judicial Estoppel, Black’s Law Dictionary (12th ed.

2024); see New Hampshire v. Maine, 532 U.S. 742, 750

(2001) (“Judicial estoppel is a doctrine intended to

prevent the perversion of the judicial process.”

(quotation omitted)).

21a

In this instance, I doubt that the goals of the

doctrine have been advanced. Here, there was

evidence that Keathley’s failure to disclose the

personal injury claim on his bankruptcy schedules

was an honest mistake. He also asserted (and the

bankruptcy trustee agreed) that the delay in

disclosing his lawsuit was of little concern to the

bankruptcy court and would not impact Keathley’s

creditors. Nevertheless, the defendant, who was

totally unrelated to the bankruptcy, moved for

summary judgment. Without citing to any evidence

of an actual financial benefit that Keathley

experienced, the defendant argued that his motive for

concealment was “self-evident under Fifth Circuit

precedent.” This hypothetical motive was enough; the

district court granted the motion, citing this circuit’s

“stringent application of the judicial estoppel rules.”

Although the district court faithfully applied our

precedents and determined that the plaintiff had a

possible financial motive for the nondisclosure, I have

a concern that district courts, especially those sitting

in a different circuit from the bankruptcy court, are

not in the best position to evaluate the impact of

precluding suit when the bankruptcy court itself has

not weighed in on the situation.

In fact, preventing Keathley’s personal injury

action might undermine the judicial system the

doctrine claims to protect. The defendant here is in

See Flugence v. Axis Surplus Ins. (In re Flugence), 738

F.3d 126, 132 (5th Cir. 2013) (Dennis, J., concurring) (“[W]hether

judicial estoppel is invoked and, if so, what is the remedy crafted

may differ. The bankruptcy court, which is closest to the facts,

operates in a zone of discretion in crafting the appropriate

remedy.” (emphasis added) (citation omitted)).

22a

no way impacted by the delay in disclosure to the

bankruptcy court. Yet, assuming arguendo it is

responsible for the car crash,2 it receives an

unwarranted windfall: it will owe nothing for its tort.

Even further, Keathley is currently repaying his

debts to his creditors in full (albeit, over time). If he

receives no remedy for his injuries, it could harmfully

impact his creditors’ chance of recovery.

Other circuits take a more holistic approach than

ours, suggesting that judicial estoppel is

inappropriate when the bankruptcy proceedings will

not suffer and when the alleged bad actors will receive

a windfall. See, e.g., Slater v. United States Steel

Corp., 871 F.3d 1174 (11th Cir. 2017) (en banc);

Botelho v. Buscone (In re Buscone), 61 F.4th 10 (1st

Cir. 2023); Spaine v. Cmty. Contacts, Inc., 756 F.3d

542 (7th Cir. 2014); Ah Quin v. County of Kauai

Department of Transportation, 733 F.3d 267 (9th Cir.

2013).

At bottom, the doctrine of judicial estoppel exists

to “protect the integrity of the judicial process, by

prevent[ing] parties from playing fast and loose with

the courts to suit the exigencies of self-interest.” Allen

v. C & H Distribs., LLC, 813 F.3d 566, 572 (5th Cir.

2015) (alteration in original) (internal quotation

marks and citation omitted). It is not a tool in the

arsenal of potentially bad actors to reap a windfall.

To me, it makes little sense for the defendant here to

benefit from something it has no involvement in and

for which the bankruptcy court does not appear to

think the plaintiff should be sanctioned. In situations

The defendant before us is the employer of the person

who, while working, caused the car crash. Thus, this defendant

has potential vicarious liability.

23a

like this one—where the district court is in a different

district and the case is still pending in bankruptcy

court—I think the district court should defer to the

bankruptcy court on whether a sanction is

appropriate and, if so, whether it should be in the

form of judicial estoppel benefiting a completely

unaffected defendant.3

Thus, while I concur in the judgment in light of our

precedent, I disagree with this outcome and would

have dissented if we did not have prior precedents.

Some other options: The bankruptcy court might wish

to fine the debtor or grant additional benefits to the bankruptcy

creditors. Regardless, the sanction inquiry should belong to the

bankruptcy court.

24a

[706 F. Supp. 3d 628]

United States District Court,

N.D. Mississippi, Oxford Division.

Thomas KEATHLEY, Plaintiff

BUDDY AYERS CONSTRUCTION, INC.,

Defendant

NO. 3:21CV261 M-P

Signed December 14, 2023

ORDER

Michael P. Mills, UNITED STATES DISTRICT

JUDGE

This cause comes before the court on the motion of

plaintiff Thomas Keathley, seeking for this court to

reconsider its ruling dismissing this case on the basis

of judicial estoppel. The court, having considered the

memoranda and submissions of the parties, is

prepared to rule.

In his motion for rehearing, plaintiff cites what he

characterizes as “newly discovered evidence,” namely

an affidavit which he obtained from Ms. Kellie M.

Emerson after this court’s adverse judicial estoppel

ruling in this case. In her affidavit, Emerson

describes herself as “a staff attorney for the Office of

Mark T. McCarty, a Chapter 13 Trustee for the

Eastern and Western Districts of Arkansas.”

[Affidavit at 1]. In his brief, plaintiff cites Emerson’s

affidavit for the proposition that “[i]n the Eastern

District of Arkansas, it is not unusual for postpetition personal injury claims to be disclosed shortly

before the settlement or resolution of the personal

injury action,” and he argues that this court should

25a

consider this alleged fact in granting his motion for

rehearing. [Brief at 4].

This court notes that the practice alleged by Ms.

Emerson is, apparently, a long-standing one in the

Eastern District of Arkansas, and, as far as it can

discern, nothing prevented plaintiff from obtaining

and submitting that same affidavit before this court’s

ruling. This court’s rulings are not an invitation for

an ongoing dialogue with the parties; to the contrary,

both sides are obligated to collect and present

whatever evidence they feel is relevant before this

court has issued its ruling. This court is simply not

able to function as a trial court if the parties fail to

follow this basic litigation practice.

While this court thus does not believe that

Emerson’s affidavit constitutes a proper basis for a

motion to rehearing, it will offer some dicta

addressing it, partly in order to offer guidance for

future cases. In offering its views on this issue, this

court begins with its belief that Emerson’s affidavit

actually hurts plaintiff’s position in this case. In so

stating, this court notes that a crucial factor in

deciding judicial estoppel issues in the Fifth Circuit is

whether a debtor can be inferred to have acted

intentionally in failing to list a tort claim as an asset

of the bankruptcy estate. As discussed in this court’s

order dismissing this case, the Fifth Circuit’s

stringent judicial estoppel jurisprudence means that

a debtor who fails to disclose a tort claim is “almost

always” inferred to have acted with intent. Love v.

Tyson Foods, Inc., 677 F.3d 258, 261 (5th Cir. 2012),

citing Thompson v. Sanderson Farms, Inc., 2006 WL

7089989, at *4, 2006 U.S. Dist. LEXIS 48409, at *12–

13 (S.D. Miss. May 31, 2006).

26a

If Emerson’s affidavit is to be believed, then it is a

common practice among bankruptcy attorneys in the

Eastern District of Arkansas, presumably with full

knowledge of what they are doing, not to list tort

claims until shortly before they are settled or

otherwise resolved. In other words, bankruptcy

debtors in that district, acting through their

attorneys, routinely make a conscious and intentional

decision not to list tort claims which they know about

until such time as those claims are close to being

resolved. The litigation process is often a very slow

one, and it thus seems clear that the practice

described by Emerson will often result in a

debtor/plaintiff keeping important information to

himself for a very long period of time. As discussed

below, this practice seems to be motivated by a belief

on the part of debtors and their attorneys that they

can “get away with” late disclosure in Arkansas

bankruptcy court, which is governed by Eighth

Circuit judicial estoppel standards.

Plaintiff’s brief appears to offer confirmation that

the Eighth Circuit’s judicial estoppel standards are

more lenient than the Fifth Circuit’s, listing the

Eighth Circuit alongside the Third, Seventh and D.C.

Circuits as the more permissive circuits in this

regard. [Brief at 23]. Plaintiff’s problem in this case

is that he filed this action in a state within the

jurisdiction of the Fifth Circuit, and the judicial

estoppel law in this circuit is completely unsupportive

of such a permissive “wait and disclose” approach.

See, e.g. Allen v. C&H Distributors, LLC, 813 F.3d

566, 572 (5th Cir. 2015). In light of this fact, the

proper course of action for plaintiff’s bankruptcy

attorney was to recognize that his Mississippi tort

claim fell under the judicial estoppel jurisprudence of

27a

the Fifth Circuit, not the Eighth Circuit, and to

research this circuit’s law before deciding how to

proceed. This court is well aware that lawyers are

busy people, and it is certainly arguable that an

Arkansas lawyer’s failure to fully research these

issues does not represent a particularly egregious

form of neglect. Nevertheless, even a cursory review

of the Fifth Circuit’s judicial estoppel jurisprudence

would have revealed that plaintiff’s Mississippi tort

claim was subject to a highly rigorous duty of

disclosure, and it is difficult to excuse a lawyer not

making himself aware of that fact.

This court notes that the Eastern District of

Arkansas borders two states in the Fifth Circuit:

Mississippi and Louisiana, and it believes that

bankruptcy attorneys in that district would be well

advised to learn their legal obligations when dealing

with causes of actions which are being litigated in

those states. In addition, it seems clear that the Fifth

Circuit’s approach gives a debtor’s Mississippi tort

counsel every motivation to get in contact with

bankruptcy counsel and ensure that prompt

disclosure of the lawsuit’s existence is made, lest it be

dismissed based on a finding of judicial estoppel.

There thus exist multiple attorneys with a motivation

to research and apply the applicable law in this

context, and this court has serious doubts that the

Fifth Circuit would conclude that a lawyer’s failure to

research that law represents one of the exceedingly

rare instances in which a debtor’s non-disclosure of a

tort claim in bankruptcy may be excused.

Plaintiff’s own evidence, in the form of Emerson’s

affidavit, suggests that the most likely reason for his

failure to disclose the existence of his tort claim was

that his Arkansas attorneys were acting—quite

28a

intentionally—in accordance with the more lenient

disclosure practices which prevail in that state and

federal circuit but which do not govern this case. At

the end of the day, litigants act through their

attorneys, and courts would not be able to function if

they addressed the arguments and filings raised by

counsel only to have to subsequently address different

arguments and evidence offered by the parties

themselves. Moreover, it seems clear that plaintiff

would have this court do something which, judging by

his briefing, the Fifth Circuit itself has never actually

done: namely, hold that a particular case represents

an exception to the “almost always” rule in this circuit

relating to judicial estoppel. This court is confident

that the Fifth Circuit would conclude that, while

other judicial circuits are free to adopt more lenient

judicial estoppel rules, lawsuits filed in Mississippi,

Louisiana or Texas are subject to the judicial estoppel

rules of this circuit. It further seems likely that the

Fifth Circuit would interpret and apply its own law in

such a manner as to encourage attorneys to research

the law of this circuit before deciding whether or not

to disclose a tort lawsuit to a bankruptcy court. Any

holding otherwise would simply encourage attorneys

not to research the applicable law before making

important legal decisions.

In his reply brief, plaintiff argues that this court

should regard the judicial estoppel issues in this case

as presenting fact issues for a jury, since he insists

that his failure to disclose was inadvertent and

“summary judgment is particularly inappropriate in

cases involving motivation and intent.” [Reply brief

at 3-4]. This argument is problematic on multiple

levels. First, this court notes that plaintiff cites no

Fifth Circuit decision which actually held that jurors

29a

should decide judicial estoppel issues under facts even

remotely comparable to those here. Moreover, while

plaintiff seeks to characterize his inadvertence

arguments in this case as unique ones which are

distinguishable from other judicial estoppel cases, the

exact opposite is true, in this court’s experience.

Indeed, this court cannot recall a judicial estoppel

case in which the plaintiff did not argue that his

failure to disclose was a simple mistake, and, if

making this argument were sufficient to render

judicial estoppel a jury issue, then plaintiff would

presumably be able to cite a long line of case law in

which juries decided similar issues. He has failed to

cite even one. Once again, the Fifth Circuit has made

it clear that judicial estoppel “almost always” applies

when a plaintiff fails to disclose a tort claim to a

bankruptcy court, and, in so stating, it gave no

indication that jurors should decide whether a

particular case presents the “almost” scenario.

The Fifth Circuit’s “almost always” language in

Love leads this court to believe that the basic premise

of plaintiff’s argument that a jury should decide

intent in this case is erroneous. Indeed, in arguing

that motivation is a fact issue for jurors, plaintiff

relies upon case law which arose in contexts where

intent is an issue for the factfinder’s resolution under

a preponderance of the evidence standard, with no

presumption involved. For example, plaintiff cites

Thornbrough v. Columbus and Greenville R. Co., 760

F. 2d 633, 640-41 (5th Cir. 1985) for the proposition

that “summary judgment is generally inappropriate

in employment discrimination cases because such

cases involve nebulous questions of motivation and

intent.”

In employment discrimination cases,

however, jurors are simply asked to determine

30a

whether an employer intentionally discriminated

against the plaintiff on the basis of his race, sex or

other protected characteristic, with no legal

presumption tying their hands. In the bankruptcy

estoppel context, by contrast, the Fifth Circuit’s use of

the “almost always” language, and the actual results

of their decisions in bankruptcy estoppel cases,

suggests that something approaching an absolute

presumption of intent exists in cases where a debtor

fails to disclose a tort lawsuit to a bankruptcy court.

In arguing that this court should simply assign this

issue to jurors, plaintiff ignores this fact.

It strikes this court that, in establishing such a

strong presumption in favor of intent, the Fifth

Circuit has recognized that, since neither courts nor

jurors are mind readers, it will generally be

impossible for any factfinder to determine what was

going through a debtor’s mind when he chose not to

disclose a tort claim to a bankruptcy court. In light of

this reality, it is incumbent upon appellate courts to

make a policy decision regarding whether they will

err on the side of encouraging prompt disclosure of

tort claims or whether they will err on the side of not

unduly punishing debtors who may have simply made

an honest mistake in failing to do so. It seems

inevitable that, whichever way an appellate court

decides, it will, in fact, “err” in some cases, by either

allowing unscrupulous debtors to get away with

intentional non-disclosure of claims or by inferring

intent on the part of a debtor where no such intent

actually exists. As discussed below, federal appellate

courts have made different evaluations of the policy

considerations in this context, but it seems clear that,

for better or worse, the Fifth Circuit has come down

on the side of encouraging full disclosure of tort

31a

claims. Plaintiff’s argument that this court should

regard intent in the bankruptcy estoppel context as a

“fifty-fifty” fact issue for jurors to decide ignores this

fact.

Fifth Circuit precedent aside, this court believes

that asking jurors to make findings regarding

motivation would be particularly problematic in the

bankruptcy estoppel context, since it would be asking

non-attorneys to rule upon the motivations of

attorneys and parties who themselves may have been

motivated by complex considerations of legal strategy.

In its initial order, this court emphasized the Fifth

Circuit’s statement that “[a] motivation to conceal

may be shown by evidence of a potential financial

benefit that could result from concealment.” U. S. ex

rel. Long v. GSDMIdea City, LLC, 798 F.3d 265, 273

(5th Cir. 2015). Clearly, determining whether or not

a particular litigant stood to potentially benefit from

a particular non-disclosure in his Chapter 13 filings

often, if not inevitably, requires extensive knowledge

of bankruptcy law, at least if this determination is to

be made with any degree of reliability.

In its order, this court relied upon In re Watts,

2012 WL 3400820, at *8 (Bankr. S.D. Tex. Aug. 9,

2012), in which the Bankruptcy Court for the

Southern District of Texas considered a plaintiff’s

arguments, virtually identical to those here, that

since his bankruptcy plan provided for 100%

repayment of claims without interest, he had no

potential motivation to conceal his lawsuit. In

rejecting this argument, the Bankruptcy Court

emphasized that:

The Plan provides for 100% repayment of all

claims, but these claims are being paid out over

32a

five years, and the Plan does not provide for

payment of interest on those claims. [Finding

of Fact No. 5]. Had the Debtors disclosed the

Claim prior to confirmation, both the Trustee

and the creditors would have had the

opportunity to object to the Plan on the grounds

that the Claim, if successful, would generate

enough funds to pay interest on claims; and

that the Plan, as proposed, should not be

confirmed, when it was not filed in good faithi.e. the projected disposable income available

for unsecured claims would be higher if the

Debtors modified the Plan to include use of any

proceeds generated from the Claim to pay

interest on the creditors’ claims under

§ 1329(a)(3). See § 1325(a)(3) (“. . . the court

shall confirm a plan if—the plan has been

proposed in good faith . . .”). By failing to

disclose the Claim, the Debtors obtained

confirmation of the Plan without having to pay

interest.

Watts, 2012 WL 3400820, at *8.

Without question, the bankruptcy judge in Watts

made findings of law and fact which relied heavily

upon his extensive knowledge and experience in

applying bankruptcy law, and it seems likely that this

will very often be the case in resolving these matters.

This court therefore believes that bankruptcy judges

are in a much better position to make findings in this

regard than district judges, and it frankly believes

that assigning these issues to laypersons on a jury

would virtually guarantee unreliable results. In so

stating, this court notes that plaintiff relies heavily

upon affidavits from attorneys regarding the alleged

lack of benefits of non-disclosure in this case, and it is

33a

unclear how he expects laypersons on a jury to

reliably evaluate the credibility and accuracy of these

attorney affidavits. Indeed, this court has cast a

critical eye upon these attorney affidavits in its

orders, but it has only been able to do so because it is

itself an attorney and is thus able to recognize what

it believes to be factual and legal weaknesses in those

affidavits. Jurors, by contrast, would likely be forced

to simply accept the representations in those

affidavits at face value. Thus, while this court agrees

with plaintiff that jurors are generally best suited to

decide questions of motivation and intent, it believes

that the present context presents a clear exception to

this general rule. This court therefore submits that

bankruptcy estoppel issues can most reliably be

decided by judges rather than jurors, and it is difficult

to discern a reasonable argument otherwise.

In assessing the most likely motivation of

plaintiff’s attorneys in this case, this court reiterates

that plaintiff’s own evidence, in the form of Emerson’s

affidavit, strongly suggests that their non-disclosure

was

intentional,

albeit

based

upon

misunderstanding of the applicable law. Once again,

Emerson contends that bankruptcy attorneys in the

Eastern District of Arkansas are able to get away

with delaying disclosure of tort claims for a lengthy

period of time, which seems unsurprising considering

the more lenient judicial estoppel standards which

prevail in the Eighth Circuit. Nevertheless, Fifth

Circuit law clearly controls the judicial estoppel

issues in this case, and it seems likely that plaintiff’s

attorneys made an intentional decision not to disclose

his tort claims based upon a misunderstanding of the

applicable law. Clearly, a conscious decision based

upon a misunderstanding of the law remains a

34a

conscious one, and this court therefore believes that

Emerson’s affidavit undercuts plaintiff’s own

inadvertence arguments in this case.

This court notes that, in his motion for rehearing,

plaintiff offers open criticism of the Fifth Circuit’s

judicial estoppel jurisprudence, writing that “[t]he

Fifth Circuit’s relatively frequent application of the

doctrine of judicial estoppel has begun to leave it

somewhat isolated from its sister Circuits.” [Brief at

22]. Plaintiff then proceeds to cite the judicial

estoppel decision of more lenient circuits before

arguing that “these other circuits’ application of the

doctrine of equitable estoppel are more in line with

Supreme Court precedent than this Court’s Order.”

[Brief at 25]. In so arguing, plaintiff merely confirms

that this court has correctly applied the Fifth Circuit’s

equitable estoppel jurisprudence in this case, harsh

though it may be. As a district court, this court has

no power to change the Fifth Circuit’s approach even

if it wished to do so, and plaintiff should argue in favor

of any change in the governing law on appeal, rather

than before this court.

While this court’s agreement or disagreement with

Fifth Circuit law is thus irrelevant, it does submit, for

the record, that Emerson’s affidavit, if accepted as

accurate, offers tacit support for the Fifth Circuit’s

more stringent approach in this context. In so stating,

this court must wonder: if a bankruptcy debtor or his

attorney is well aware of the existence of a tort claim

(which clearly represents an asset of the bankruptcy

estate) then what is the point in waiting months or

years before disclosing it? The existence of a valuable

tort claim is clearly an important legal fact which is

entirely relevant to the bankruptcy action, and it

takes mere minutes for an attorney to type up a notice

35a

which allows creditors to protect their interests and

for the bankruptcy court to make fully informed

rulings. That being the case, why should bankruptcy

debtors or their attorneys be allowed to make a

conscious decision to “sit on” this important

information for a lengthy period of time when they

consider it to be in their interests to do so?

In his brief, plaintiff attempts to characterize the

non-disclosure issues in this case as involving a mere

question of “timing,” writing that:

Plaintiff concedes that he has a duty to

disclose his assets to bankruptcy. However, at

the heart of the issue, is the timing of the

disclosure. Notably, none of the cases that

Defendant cited actually explain when

disclosure is required. Ms. Emerson clarifies

this issue for the Court. Per her affidavit, it is

common for individuals in bankruptcy to

disclose their post-petition claims prior to the

settlement or resolution of the personal injury

action. As this Court is well aware, this

matter was still in the discovery stage of

litigation.

[Reply brief at 6-7]. In addressing these arguments,

this court notes at the outset that there is no way of

knowing whether plaintiff ever would have disclosed

his tort claim in this case to the bankruptcy court, had

defendant not raised this issue first. This court is

therefore unwilling to simply assume that plaintiff’s

Arkansas attorneys would have eventually disclosed

it, when there is no way of knowing whether or not

that is the case. That aside, plaintiff’s urging that

debtors be allowed to follow the alleged Arkansas

practice of waiting for “the settlement or resolution of

the personal injury action” makes clear that he is

36a

advocating a very long delay in disclosure indeed,

since personal injury actions can take many months

or years to resolve.

That brings this court to the fact that the

bankruptcy process is, to a large extent, a “zero sum

game,” in which the debtor and creditors are each

trying to obtain as large a share of the assets of the

bankruptcy estate as possible. That being the case, it

seems self-evident that, if a debtor concludes that it is

to his advantage, in a particular case, to wait months

or years to disclose a tort claim to the bankruptcy

court, then that same delay tends to work to the

disadvantage of creditors, who lose valuable time to

protect their legal rights. Clearly, the fact that the

bankruptcy estate includes a valuable tort claim

increases the potential “pot” of recovery and makes it

more likely that it will be worth it to creditors to take

steps to obtain as large a share of that pot as possible.

Moreover, it is indisputable that things like hiring

counsel to file and argue motions before bankruptcy

courts takes time, and it is thus apparent that, in this

context, time truly is money. That being the case, on

what basis should the law permit debtors to keep the

existence of a tort claim to themselves for months or

years, rather than spending the minimal time and

effort which is required to disclose it? None which

this court can discern.

Considered in this context, the Arkansas approach

described by Emerson strikes this court as a

cautionary tale of sorts and an indication that

lackadaisical enforcement of rules often leads to

lackadaisical litigation practices. Plaintiff appears

set to argue before the Fifth Circuit that it should be

more like the Eighth Circuit as it relates to

bankruptcy estoppel issues, but his own evidence

37a

regarding Arkansas disclosure practices casts serious

doubt, at least in this court’s mind, regarding whether

the Eighth Circuit approach is something to which

this circuit should aspire. This court submits that the

Fifth Circuit approach is also supported by another

important consideration, relating to the predictability

of the law. In so stating, this court notes that, as

harsh as the Fifth Circuit’s judicial estoppel

jurisprudence may be, it leaves debtors and their

attorneys (who care to research the law beforehand)

in little doubt regarding what they are required to do:

promptly disclose any lawsuits which they may have

to the bankruptcy court. In this case, by contrast,

plaintiff appears to endorse a rather ad hoc judicial

estoppel analysis, based upon ambiguous standards,

whereby a plaintiff who submits the right affidavit

from the right staff attorney, stating that “a lot of

people” are doing something forbidden by Fifth

Circuit law, will be let off with a warning.

In this vein, the competing approaches of the Fifth

Circuit and the Eighth Circuit strike this court as

being analogous to two different speeding

enforcement standards adopted by two different

towns. One town has adopted a “zero tolerance”

standard whereby traffic police are instructed to

ticket speeders, regardless of any attempts they may

make to persuade the officer otherwise. Another town

has adopted a more lenient process whereby traffic

police have the discretion to consider any mitigating

factors or pleas for mercy that the speeder sees fit to

offer. The Eighth Circuit has apparently chosen the

latter approach, and it is entirely unsurprising to

learn from Emerson’s affidavit that this approach has

resulted in a situation where speeding is more

prevalent in that circuit than in this one. The Fifth

38a

Circuit clearly foresaw this consequence of adopting

more lenient standards, writing in a 2015 decision

that “[a]llowing [a debtor] to back-up, re-open the

bankruptcy case, and amend his bankruptcy filings,

only after his omission has been challenged by an

adversary, suggests that a debtor should consider

disclosing personal assets only if he is caught

concealing them.” U. S. ex rel. Long v. GSDMIdea

City, LLC, 798 F.3d 265, 273 n 6 (5th Cir. 2015).

While this court therefore regards the Fifth

Circuit’s approach as a quite defensible one, the

crucial point in this context is that, in choosing to

litigate a federal case in this circuit, plaintiff

subjected himself to its rules, regardless of whether

they are defensible or not. This court remains of the

view that its dismissal of this action based upon

judicial estoppel was the correct decision under Fifth

Circuit law, and plaintiff’s motion for reconsideration

will therefore be denied.

In light of the foregoing, it is ordered that

plaintiff’s motion to reconsider is denied.

39a

[686 F. Supp.3d 495]

United States District Court,

N.D. Mississippi, Oxford Division.

Thomas KEATHLEY, Plaintiff

BUDDY AYERS CONSTRUCTION, INC.,

Defendant

NO. 3:21CV261 M-P

Signed August 9, 2023

ORDER

Michael P. Mills, UNITED STATES DISTRICT

JUDGE

This cause comes before the court on the motion of

defendant Buddy Ayers Construction, Inc. for

summary judgment, based on judicial estoppel.

Plaintiff Thomas Keathley has responded in

opposition to the motion, and the court, having

considered the memoranda and submissions of the

parties, is prepared to rule.

The underlying lawsuit in this case involves

simple negligence claims arising out of an automobile

accident. In the instant motion, however, defendant

Ayers seeks for this court to grant it summary

judgment based not upon the substantive merits of

plaintiff’s negligence claim, but, rather, based on the

fact that he failed to list it as an asset in his

bankruptcy filings. On December 27, 2019, Plaintiff

filed a Chapter 13 Petition for Bankruptcy and a

Bankruptcy Plan, an amended version of which was

confirmed by the bankruptcy court on April 20, 2020.

[Affidavit of Bart Ziegenhorn, para. 4.] On August 23,

2021, plaintiff was involved in the automobile

40a

accident which gave rise to the instant lawsuit.

Plaintiff concedes that, as of this date, he was aware

of his cause of action in this case, but, acting through

his bankruptcy attorney, he nevertheless filed

Second, Third and Fourth Amended Chapter 13

Bankruptcy Plans which failed to list this cause of

action as an asset of his bankruptcy estate.

[Plaintiff’s brief at 3]. Having learned of plaintiff’s

omissions in this regard, defendant has filed the

instant motion for summary judgment based on

judicial estoppel.

The instant motion presents a factual scenario

which has arisen frequently in the Fifth Circuit,

namely a plaintiff who failed to disclose a tort claim

as an asset in his bankruptcy proceedings. As in

many such cases in this circuit, the plaintiff has

submitted an affidavit in which he assures this court

that his failure to disclose this lawsuit was an honest

mistake and that he had no intent to deceive the

bankruptcy court or to gain any benefit through his

mistake. [Docket entry 154-2] As is also generally

the case, this court is unable to state one way or the

other whether plaintiff’s representations are accurate

or not, since it has no way of ascertaining his

subjective intent in this regard.

It strikes this court that, when confronted with

this scenario, there are two approaches which a court

might legitimately take in considering any judicial

estoppel arguments. In the absence of proof of an

intent to deceive, the first legitimate approach would

be to give the plaintiff the benefit of the doubt and to

allow him to submit amended bankruptcy filings,

based partly upon the belief that it would be better for

the bankruptcy creditors to be paid from the eventual

proceeds of the lawsuit than to dismiss the action

41a

outright. The second legitimate approach would be to

view this scenario from the perspective of protecting

the integrity of the bankruptcy process and the

federal courts as a whole and, accordingly, to give

clear warning to any debtors thinking of failing to

disclose lawsuits that, if their deception is discovered,

they will not simply be allowed to plead an honest

mistake and file an amended disclosure.

It is irrelevant which of these two approaches this

court would prefer, since the Fifth Circuit has clearly

opted for the second one. Indeed, this court is struck

by the fact that, in its briefing in this case, defendant

is able to counter every argument from plaintiff with

a Fifth Circuit decision rejecting a similar argument

by a debtor/plaintiff. Plaintiff, by contrast, offers this

court nothing more than state court decisions or other

non-binding authority, and the decisions he cites are

generally based on a very different weighing of the

competing policy considerations in this context than

those made by the Fifth Circuit. As a district court

sitting in the Fifth Circuit, this rather glaring

disparity in the parties’ citations to authority cannot

help but have a very significant impact upon its

resolution of this motion for summary judgment.

In considering plaintiff’s arguments, this court

notes at the outset that the fact that his cause of

action had not yet arisen when he made his initial

Chapter 13 filing is immaterial, since the law is clear

that a debtor has a continuing duty to disclose

contingent and unliquidated claims, even if they did

not arise until after the debtor had filed for

bankruptcy.

See United States ex rel. Bias v.

Tangipahoa Parish School Bd., 766 Fed. Appx. 38, 42

(5th Cir. 2019) (“But our precedent is clear; Chapter

13 debtors must disclose post-petition causes of

42a

action”); Allen v. C&H Distributors, LLC, 813 F.3d

566, 572 (5th Cir. 2015) (“Chapter 13 debtors have a

continuing obligation to disclose post-petition causes

of action.”); Love v. Tyson Foods, Inc., 677 F.3d 258,

261 (5th Cir. 2012) (“The obligation to disclose

pending and unliquidated claims in bankruptcy

proceedings is an ongoing one.”)

Plaintiff does not appear to dispute that he had an

ongoing duty to disclose his cause of action in this

case,1 arguing instead that:

Plaintiff’s cause of action for this instant matter

accrued on the date of the wreck, August 23,

2021. Within a few weeks of the subject wreck,

Mr. Keathley informed his bankruptcy

attorney, Bart Ziegenhorn, of the wreck and his

resulting personal injury claims. [See Affidavit

of Thomas Keathley, para 6, marked as Exhibit

2] Mr. Keathley believed that all he needed to

do was inform his bankruptcy attorney of his

personal injury claims and that his attorney

would handle whatever additional steps were

necessary. [See Affidavit of Thomas Keathley,

para 7.] Mr. Keathley never intended to make

any

misrepresentations

concerning

the

existence of his personal injury claims. [See

Affidavit of Thomas Keathley, para 8.] Mr.

Keathley does not know why his personal

injury claims were not disclosed to the

Indeed, plaintiff writes in his brief that, at the time of

his initial bankruptcy filing, he “was not under any obligation or

legal duty to disclose this claim at that time, because this claim

had not yet accrued.” [Id. at 2]. This strikes this court as a tacit

admission by plaintiff that he was legally required to disclose his

cause of action in his post-accident bankruptcy filings.

43a

bankruptcy court.

Keathley, para 9.]

[See Affidavit of Thomas

[Brief at 2-3]. Plaintiff further notes that, after

defendant raised its judicial estoppel arguments, he

filed an amended bankruptcy plan which included

this lawsuit as an asset. [Brief at 9].

In arguing that he made an honest mistake in

failing to list his cause of action among his

bankruptcy assets and that he has now corrected that

mistake, plaintiff is treading a well-worn path which

has proven to be an inhospitable one for nondisclosing debtor/plaintiffs in the Fifth Circuit. This

court notes that, in his brief, plaintiff provides a

rather selective description of the legal framework for

resolving this issue, writing that:

“Whether a debtor’s failure to disclose claims

was inadvertent presents a question of fact.”

Love 677 F. 3d at 262. “A debtor’s failure to

satisfy its statutory disclosure duty is ‘only

when, in general, the debtor either lacks

knowledge of the undisclosed claims or has no

motive for their concealment.” In re Coastal

Plains, Inc., 179 F.3d 197, 206 (5th Cir. 2019

[1999]). Plaintiff does not contest Defendant’s

position that he had knowledge of the

undisclosed claims; however, Defendant cannot

demonstrate that Plaintiff had motive for their

concealment.

[Brief at 10]. While plaintiff correctly cites Love in

stating that the key issue in this case is whether he

had a “motive for the[ ] concealment” of his claims, he

fails to acknowledge that, in that same decision, the

Fifth Circuit approvingly cited a Mississippi district

court decision for the proposition that “[a]s one court

44a

has stated, ‘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.’”

Love, 677 F.3d at 262, citing Thompson v. Sanderson

Farms, Inc., 2006 WL 7089989, at *4, 2006 U.S. Dist.

LEXIS 48409, at *12–13 (S.D. Miss. May 31, 2006).

This court reiterates that, in ruling upon these

issues, it is simply following the directives of the Fifth

Circuit, as best as it can understand them. Moreover,

while it appears that neither side is able to cite a Fifth

Circuit decision dealing with the exact same

arguments and factual scenario as are presented

here, that court’s admonition that “the motivation

sub-element is almost always met if a debtor fails to

disclose a claim or possible claim to the bankruptcy

court” necessarily weighs heavily in this court’s mind.

In so stating, this court notes that it is undisputed

that plaintiff did, in fact, “fail to disclose a claim or

possible claim to the bankruptcy court” and he should

thus have been prepared to argue why this case falls

within the “almost always” exception to Love’s general

rule. In reality, however, plaintiff does not confront

this language in Love at all, choosing instead to

conveniently omit it from his citation to that

decision’s holding.

As always when considering an issue lacking a

Fifth Circuit decision directly on point, this court

tends to favor the side which fully and accurately cites

the authority which does exist, rather than the side

which selectively quotes from it. In this case, plaintiff

clearly falls within the latter category. This court

further notes that, while defendant is able to cite one

U.S. Bankruptcy Court decision, discussed below,

45a

which is very closely on point, plaintiff’s primary

authority is a Louisiana state court decision which

strikes this court as contrary to Fifth Circuit

precedent. Specifically, plaintiff relies upon Tates v.

Integrated Production Servs., Inc., 244 So. 3d 716,

720-21 (La. Ct. App. 2017) for the proposition that

“[t]o the extent any inconsistency exists, it has been

cured by the filing of the amended schedule.” [Brief

at 8]. In so arguing, plaintiff relies upon Tates’

holding that:

In this case, protection of the judicial process is

not necessary because the bankruptcy court has

been informed of plaintiffs’ pending tort suit.

Additionally, plaintiffs’ creditors could be

harmed if this suit does not proceed, which

would cause them to lose out on any potential

recovery that might be owed to them.

Tates, 244 So. 3d at 720-21. (citation to another

Louisiana state court decision omitted).

In Tates, as in this case, the plaintiff only filed an

amended bankruptcy plan after the defendant had

filed a motion to dismiss his tort action based on

judicial estoppel. Id. at 717. The Louisiana Court of

Appeals nevertheless found that this was good

enough, based partly upon its belief that plaintiff’s

creditors would “lose out on any potential recovery

that might be owed to them” if the tort action were

dismissed. Id. at 721. It strikes this court that, in

seeking to protect the bankruptcy creditors by

increasing the pool of bankruptcy assets, the

Louisiana Court of Appeals has made a

fundamentally different policy choice than the one

made by the Fifth Circuit in this context. In so

stating, this court emphasizes that it will (seemingly)

46a

always be the case that allowing a late filing of an

amended complaint will increase the pool of

bankruptcy assets and thus work to the benefit of

bankruptcy creditors in a particular case. While this

may be regarded as a positive result, it also seems

clear that adopting such a forgiving approach would

greatly reduce a debtor’s incentive to list any

potential legal claims among his bankruptcy assets.

This would, no doubt, result in an increase in

fraudulent bankruptcy filings, with all the harm to

the integrity of the bankruptcy process which that

entails.

It is likely for this reason that, contrary to Tates’

finding that “protection of the judicial process is not

necessary because the bankruptcy court has been

informed of plaintiffs’ pending tort suit,” the Fifth

Circuit has made it clear that a debtor cannot cure his

failure to disclose a personal injury claim to a

bankruptcy court after his omission has been

challenged by an adversary. See U. S. ex rel. Long v.

GSDMIdea City, LLC, 798 F.3d 265, 273 (5th Cir.

2015). Specifically, the Fifth Circuit wrote in Long

that

Even if Long’s failure to disclose would not have

actually harmed his creditors because he

offered to reopen the bankruptcy to include the

FCA claims, it would not change the outcome

here. “‘Allowing [a debtor] to back-up, re-open

the bankruptcy case, and amend his

bankruptcy filings, only after his omission has

been challenged by an adversary, suggests that

a debtor should consider disclosing personal

assets only if he is caught concealing them.’”

47a

Long, 798 F.3d at 273, fn. 6, citing In re Superior

Crewboats, Inc., 374 F.3d 330, 336 (5th Cir. 2004).

This court has no doubt that the Fifth Circuit was

correct when it concluded that a rule of law which

allowed a plaintiff to disclose a lawsuit only after

being caught in a non-disclosure would provide

perverse incentives for debtors to keep their potential

tort actions to themselves and “wait and see” if they

were caught in the act. This court further believes

that it would be unfair to defendants who had gone to

the effort and expense of uncovering the bankruptcy

non-disclosure and paying attorneys to file a motion

for judicial estoppel if the only consequence of

“catching the plaintiff in the act” were that he simply

filed an amended bankruptcy plan. Indeed, this court

doubts that tort defendants would bother to incur the

effort and expense in this regard if there were no

potential benefit to them, and a major enforcement

mechanism for uncovering bankruptcy fraud would

thereby be lost. Moreover, it strikes this court that

Tate’s rather myopic focus on the interests of the

bankruptcy creditors in one particular case fails to

acknowledge the broader harm which would be done

to bankruptcy creditors in general if it became

generally known among bankruptcy debtors that they

faced no serious consequences for failing to disclose

tort claims in bankruptcy filings. In that scenario, it

seems highly likely that there would be many cases

where bankruptcy debtors deliberately chose not to

list legal claims among their assets and where such a

deceit was never discovered, due partly to the absence

of a party with sufficient incentive to make inquiries

in this regard. In this scenario, it seems clear that

bankruptcy creditors in general would lose out on an

important source of recovery, and, that being the case,

48a

Tates’ focus on the creditors in one specific case seems

rather short-sighted.

It strikes this court that, as with any difficult issue

of law and equity, the policy arguments in this context

are not completely one-sided, and plaintiff does, in

fact, have a reasonable argument that a stringent

application of the judicial estoppel rules would result

in cases where plaintiffs who did, in fact, make an

“honest mistake” will see their tort claims disappear.

It further seems clear that, in such cases, tort

defendants may obtain an undeserved windfall.

Nevertheless, the fact remains that the Fifth Circuit

has made a policy judgment that its highest priority

is ensuring that debtors do not have an incentive to

lie in their bankruptcy filings, and it is this court’s

obligation to follow that authority. By the same

token, the fact that plaintiff’s primary authority in

this case is a Louisiana state court decision which is

based upon a very different evaluation of the

competing public policy considerations than that

made by the Fifth Circuit makes it clear that he is

swimming against a heavy current of adverse

precedent in this circuit.

This court believes that it is incumbent upon an

appellate court to make a broad policy judgment one

way or the other on this issue, since the vast majority

of these cases do not lend themselves to a clear finding

either way regarding a bankruptcy debtor’s intent.

Simply stated, courts are not mind-readers, and it

does not strike this court as being a productive line of

inquiry for them to attempt to ascertain what a

plaintiff may or may not have been thinking when he

failed to list a tort claim as an asset in a particular

bankruptcy case. In this case, plaintiff would have

this court look at the recovery that his creditors seem

49a

poised to receive and conclude that, since they will be

paid in full, he had no motive not to disclose his claim.

Plaintiff’s arguments seem to presuppose 1) that this

court is sufficiently well-versed in Chapter 13

bankruptcy law and practice to make reliable factual

findings regarding how much credence to give to the

representations of his bankruptcy attorney regarding

the impact of non-disclosure in this case and 2) that a

similar degree of knowledge should be imputed to

plaintiff when he failed to list his civil claim in his

amended bankruptcy returns. This court does not

believe that either of these presuppositions applies in

this case. As to the first presupposition, this court

certainly does not consider itself knowledgeable

regarding Chapter 13 bankruptcy law, and it doubts

that most district courts are. That being the case, it

strikes this court as suspect judicial policy to place

district courts in the position of having to divine a

particular plaintiff’s intent based upon assumptions

regarding the bankruptcy effects of non-disclosure

versus disclosure. As to the second presupposition, it

strikes this court as similarly suspect to pretend that

the average Chapter 13 debtor is, effectively, in the

position of a chess grand master thinking several

moves ahead regarding what the bankruptcy effects

of his disclosure or non-disclosure might be. This

court simply does not believe that the typical

bankruptcy debtor is in a position to make such

precise calculations regarding the potential risks and

benefits of disclosure versus non-disclosure.

That brings this court to two important holdings

in this context which further inform its ruling today.

The first is the Fifth Circuit’s statement in Long that

“[a] motivation to conceal may be shown by evidence

of a potential financial benefit that could result from

50a

concealment.” Long, 798 F.3d at 273 (emphasis

added). The fact that the Fifth Circuit used this

“potential” and “could” language makes it exceedingly

difficult for any district court lacking expertise in

bankruptcy law to simply accept representations from

a plaintiff or his bankruptcy attorney regarding what

the potential risks and benefits of non-disclosure

were. Indeed, even if this court were to give credence

to plaintiff’s bankruptcy counsel’s description of the

impact of non-disclosure, it would not change the fact

that most debtors are not similarly well-versed in

bankruptcy law and, in many cases, they may simply

conclude that the safer practice would be to keep their

civil claims to themselves to ensure that they do not

have to share it with their creditors.

The second holding which informs this court’s

ruling today is a US Bankruptcy Court decision from

this circuit, which involves facts and arguments

remarkably similar to those here. See In re Watts,

2012 WL 3400820, at *8 (Bankr. S.D. Tex. Aug. 9,

2012). This court finds Watts highly persuasive not

only because it applies Fifth Circuit law but also

based on the fact that it is written by a US

Bankruptcy Judge who is (presumably) highly

knowledgeable regarding the bankruptcy effects of

non-disclosure of claims. In Watts, the Bankruptcy

Court for the Southern District of Texas considered a

plaintiff’s arguments, virtually identical to those

here, that since the Bankruptcy Plan provides for

100% repayment of claims without interest, he had no

potential motivation to conceal his lawsuit. In

rejecting this argument, the Bankruptcy Court

emphasized that:

The Plan provides for 100% repayment of all

claims, but these claims are being paid out over

51a

five years, and the Plan does not provide for

payment of interest on those claims. [Finding

of Fact No. 5]. Had the Debtors disclosed the

Claim prior to confirmation, both the Trustee

and the creditors would have had the

opportunity to object to the Plan on the grounds

that the Claim, if successful, would generate

enough funds to pay interest on claims; and

that the Plan, as proposed, should not be

confirmed, when it was not filed in good faithi.e. the projected disposable income available

for unsecured claims would be higher if the

Debtors modified the Plan to include use of any

proceeds generated from the Claim to pay

interest on the creditors’ claims under

§ 1329(a)(3). See § 1325(a)(3) (“. . . the court

shall confirm a plan if—the plan has been

proposed in good faith . . .”). By failing to

disclose the Claim, the Debtors obtained

confirmation of the Plan without having to pay

interest.

Watts, 2012 WL 3400820, at *8.

In its brief, defendant notes that the Chapter 13

Bankruptcy Plan in this case similarly involved a

virtually identical payment of creditor claims over

five years without interest. Specifically, defendant

writes that:

The Bankruptcy Court’s order confirming

Plaintiff’s amended plan gave him five

(5) years/sixty (60) months from the June 27,

2022 date on which he filed his amended plan

to make monthly, interest-free payments. Cf.

Amended Plans, Doc. 142-4 and 142-5, to

Bankruptcy Order, Doc. 142-6. Based on the

52a

precedent discussed hereinabove, Plaintiff’s

motive to conceal is self-evident. His interestfree payment plan spread over five years (from

June 27, 2022) provides sufficient motive for

Plaintiff in this case to conceal just as the

interest-free payment plan spread over five

years provided the plaintiff/debtor sufficient

motive in In re Watts to conceal.

[Reply brief at 10].

This court finds defendant’s argument persuasive,

and it agrees that, under Long, there was “a potential

financial benefit that could result from concealment”

in this case. Id. This court further reiterates that the

Fifth Circuit has made it clear that “the motivation

sub-element is almost always met if a debtor fails to

disclose a claim or possible claim to the bankruptcy

court,” Love, 677 F.3d at 262, and there is, once again,

no dispute that plaintiff failed to disclose his claim to

the bankruptcy court in this case. As to plaintiff’s

argument that he told his attorney of his civil claim,

the Fifth Circuit has held in related contexts that

“mistake of counsel” generally does not suffice to

demonstrate “good cause” to excuse non-compliance

with the requirements of the Federal Rules of Civil

Procedure. Winters v. Teledyne Movible Offshore,

Inc., 776 F.2d 1304, 1306 (5th Cir. 1985). Plaintiff

offers this court no authority suggesting that this

general rule is inapplicable in the present context,

and the fact that Fifth Circuit’s holdings in

bankruptcy non-disclosure cases make no mention of

“mistake of counsel” as providing an effective defense

to a finding of judicial estoppel suggests otherwise. In

the court’s view, mistake of counsel arguments are so

common in cases where parties are seeking to have a

court excuse a failure to comply with various rules

53a

that it seems quite unlikely that such arguments are

what the Fifth Circuit had in mind when it used the

“almost always” language in Long. Otherwise, cases

where a debtor was excused for failing to disclose

bankruptcy assets would not be rare ones, but

common indeed. The general rule in this context

appears to be based on the reality that parties in civil

cases generally act through attorneys, and, that being

the case, allowing them to escape negative

consequences for failing to comply with applicable

rules based on mistakes of counsel would, no doubt,

lead to widespread failure to comply with those rules.

This court further notes that plaintiff’s argument

that he failed to make an explicit representation to

the bankruptcy court that he had no civil claims is

rendered irrelevant by the Fifth Circuit holding in

Tangipahoa that “[b]ecause he had an affirmative

duty to disclose post-petition causes of action, [the

debtor] impliedly represented that he did not have

such a claim when he failed to disclose this litigation

to the bankruptcy court.” Tangipahoa, 766 Fed.

Appx. at 41. In this case, plaintiff similarly made an

implied representation to the bankruptcy court that

he had no post-petition cause of action when he filed

multiple amended plans making no mention of such

claim.

Moreover, defendant’s reliance upon

Tangipahoa illustrates, once again, how it is

seemingly able to respond to each of plaintiff’s

arguments with a helpful Fifth Circuit decision on

point.

The Fifth Circuit in Tangipahoa did not dispute

that its judicial estoppel precedent is rather harsh

and unforgiving, but it expressly declined pleas from

the plaintiff and amicus curiae to relax its standards

54a

in this context. Specifically, the Fifth Circuit wrote in

that decision that:

[Appellant] and amici make various equitable

and policy arguments that this standard is

overly rigid.

But our precedent is clear:

Chapter 13 debtors must disclose post-petition

causes of action. See, e.g., Allen, 813 F.3d at

572; [In re] Flugence, 738 F.3d [126] at 129 n.1

[(5th Cir. 2013)] (“The continuing duty of

disclosure is a longstanding gloss required by

our caselaw.”); Jethroe v. Omnova Sols., Inc.,

412 F.3d 598, 600 (5th Cir. 2005) (“The

obligation to disclose pending and unliquidated

claims in bankruptcy proceedings is an ongoing

one.”); Superior Crewboats, Inc. v. Primary P &

I Underwriters (In re Superior Crewboats Inc.),

374 F.3d 330, 335 (5th Cir. 2004) (“The duty to

disclose is continuous.”). [Appellant] and amici

also argue that this “heightened disclosure”

requirement is unduly burdensome, as it would

require debtors to modify their bankruptcy

plans each time they receive a paycheck or their

property appreciates. These examples are

inapt, however, because those paychecks and

properties would already have been included in

the debtor’s original schedules. Thus, they

would not need to be disclosed again. In

contrast, [appellant] never disclosed this cause

of action to the bankruptcy court. As the

Eleventh Circuit has recognized, “The

bankruptcy court is entitled to learn about a

substantial asset that the court had not

considered when it confirmed the debtors’

plan.” Waldron v. Brown (In re Waldron), 536

55a

F.3d 1239, 1245 (11th Cir. 2008). Thus, Bias’s

and amici’s arguments are without merit.

Tangipahoa, 766 F. App’x at 42. It is thus apparent

that the Fifth Circuit has quite consciously adopted

rigid and unforgiving standards in this context, and,

that being the case, this court has no choice but to

follow those standards. Of course, the day may

eventually come when the Fifth Circuit clarifies

exactly what sort of case properly falls under the

“almost always” language in Long, but plaintiff has

provided this court no authority suggesting that this

case, containing quite typical arguments of

inadvertent error and mistakes of counsel, should be

recognized as falling within the scope of this

language.

In the court’s view, the “bottom line” in this

context is that, since courts are not, in fact, mindreaders, they will inevitably be forced to make a broad

policy decision regarding whether a permissive or

stringent approach to non-disclosure should be

adopted, and, whichever way they decide, there may

be unfair results which flow from that decision. It

seems clear that, if a court adopts a permissive

approach, then, as noted by the Fifth Circuit, a simple

risk-benefit analysis would “suggest[ ] that a debtor

should consider disclosing personal assets only if he is

caught concealing them.” Long, 798 F.3d at 273, fn. 6.

The Fifth Circuit clearly believes that providing such

perverse incentives for debtors to defraud their

creditors is an unacceptable result, and it has

accordingly adopted a stringent approach which

“almost always” presumes that a failure to disclose

assets was intentional. This stringent approach will,

no doubt, result in many debtors who did, in fact,

make an honest mistake being barred from pursuing

56a

potentially meritorious tort claims. It is unclear to

this court whether the plaintiff in this case falls in

this category, but, if so, then then this is a regrettable

yet unavoidable result of the policy decision which the

Fifth Circuit was forced to make. This court is bound

to follow the Fifth Circuit’s decisions in this context,

and it accordingly finds that defendant’s motion for

summary judgment on the basis of judicial estoppel is

well-taken and should be granted.

It is therefore ordered that defendant’s motion for

summary judgment is granted.

A separate judgment will be entered this date,

pursuant to Fed. R. Civ. P. 58.

57a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-60025

United States

Court of Appeals

Fifth Circuit

FILED

March 31, 2025

Lyle W. Cayce

Clerk

THOMAS KEATHLEY,

Plaintiff—Appellant,

versus

BUDDY AYERS CONSTRUCTION, INCORPORATED,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:21-CV-261

Before HIGGINBOTHAM, STEWART,

Circuit Judges.

and

HAYNES,

PER CURIAM:

IT IS ORDERED that the petition for rehearing is

DENIED.

58a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

MISSISSIPPI

OXFORD DIVISION

THOMAS KEATHLEY,

Plaintiff,

CIVIL ACTION NO.:

3:21-CV-261-MPM-RP

BUDDY AYERS

CONSTRUCTION, INC.

Defendant.

AFFIDAVIT OF KELLIE M. EMERSON

STATE OF ARKANSAS

COUNTY OF PULASKI

Personally appeared before me, the undersigned

authority, Kellie M. Emerson, after being first duly

sworn makes oath and states:

1. I, Kellie M. Emerson, am an adult resident of

Pulaski County, Arkansas, over the age of eighteen,

and otherwise competent to execute this Affidavit.

2. I have personal knowledge of the facts recited

in this Affidavit.

3. I am a staff attorney for the office of Mark T.

McCarty, a Chapter 13 Trustee for the Eastern and

Western Districts of Arkansas.

4. Thomas Keathley and Connie Keathley are

debtors in a Chapter 13 bankruptcy proceeding in the

United State Bankruptcy Court for the Eastern

District of Arkansas.

59a

5. Mr. and Mrs. Keathley’s bankruptcy is in the

Eighth Circuit Court of Appeals of the United States.

6. Mr. And Mrs. Keathley’s bankruptcy is

proceeding under case number 2:19-bk-16848.

7. The current payoff amount of Mr. And Mrs.

Keathley’s debts is $5,691.06 through the end of

August 2023.

8. I am the staff attorney assigned to Mr. and

Mrs. Keathley’s bankruptcy.

9. Throughout the duration of their bankruptcy, I

have communicated with Mr. and Mrs. Keathley

directly and through their attorney, Bart Ziegenhom.

10. Over the course of the communications, I am

unaware of Mr. Keathley, Mrs. Keathley, and Mr.

Ziegenhron

having

lied

made

any

misrepresentations to me.

11. Furthermore, there is nothing unusual or

misleading about Mr. and Mrs Keathley not

disclosing the personal injury action while the

personal injury action is ongoing.

12. In the Eastern District of Arkansas, it is not

uncommon for debtors to amend their bankruptcy

filings to disclose post-petition claims for personal

injury actions prior to the settlement or resolution of

the personal injury action.

13. Even if Mr. and Mrs. Keathley had notified the

bankruptcy court of the personal injury claim

immediately after the wreck of August 23, 2021, it

would not have had any effect on the administration

of the bankruptcy as the bankruptcy case will pay

100% to creditors.

14. Even if Mr. and Mrs. Keathley had notified the

bankruptcy court of the personal injury claim

immediately after the wreck of August 23, 2021, it

60a

would not have had any impact on the amount the

Keathleys would have had to pay or the time they

would have had to pay it.

15. Mr. and Mrs. Keathley have received no

benefit from the non-disclosure of the personal injury

claim in the bankruptcy case.

16. It would be in the best interests of the

bankruptcy estate and the Keathey’s creditors if Mr.

Keathley’s personal injury action were allowed to

proceed as it could possibly result in creditors being

paid in full in a more timely manner.

FURTHER AFFIANT SAITH NOT.

s/ K. Emerson

Kellie M. Emerson

SWORN TO AND SUBSCRIBED BEFORE ME,

the undersigned authority, this the 17th day of

August, 2023.

My commission expires: 4-06-2028

s/ [illegible]

Notary Public

[notary stamp omitted]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.