1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Natalie Figueroa, ) 9 ) Plaintiff, ) No. CIV 19-022-TUC-CKJ 10 ) vs. ) 11 ) ORDER Gannett Company Incorporated, et al., ) 12 ) Defendants. ) 13 ) 14 Pending before the Court are the Motion to Estop Defendants From Rescinding Their 15 Admission That Plaintiff Suffers a Physical Impairment Which Substantially Limited One 16 or More Major Life Activities (Doc. 201) filed by Plaintiff Natalie Figueroa ("Figueroa"). 17 Defendants have filed a response (Doc. 204). Also pending before the Court are 18 Defendants' Motion in Limine No. 1: To Exclude Testimony, Evidence, and Reference to 19 Gannett's Legal Counsel (Doc. 225), Defendants' Motion in Limine No. 2: To Limit 20 Plaintiff's Medical Experts to Opinions Formed During Their Treatment of Plaintiff (Doc. 21 226), and Plaintiff's Motion in Limine No. 1 (Doc. 231). The deadline to file responses to 22 the Motions in Limine has not passed; those motions, therefore, will be addressed in a 23 separate order. 24 25 Motion to Estop Defendants from Rescinding Their Admission that Plaintiff Suffers a Physical Impairment Which Substantially Limited One or More Major Life Activities (Doc. 201) 26 Figueroa requests the Court estop Defendants from rescinding an admission that 27 Figueroa was physically impaired under the Americans with Disabilities Act ("ADA") 28 1 during 2017. Figueroa asserts this stipulation/admission was made during discussion 2 regarding jury instructions. A review of the Final Jury Instructions indicates Defendants 3 stipulated that Figueroa had a physical or mental impairment that substantially limited one 4 or more major life activities. See Final Jury Instructions (Doc. 172, p. 13). However, 5 Figueroa has not presented this Court with a transcript demonstrating the specific language 6 of any stipulation or admission. Further, the Court recognizes its typical practice is to 7 informally discuss instructions off the record with counsel later being afforded an 8 opportunity to make objections on the record; i.e., there may not be a record of the specific 9 language used by the parties during the relevant discussion. Nonetheless, Defendants do not 10 dispute a stipulation was made, but limit the substance of the stipulation to that stated in the 11 Final Jury Instructions. 12 13 Judicial Estoppel 14 "'Judicial estoppel is an equitable doctrine that precludes a party from gaining an 15 advantage by asserting one position, and then later seeking an advantage by taking a clearly 16 inconsistent position.'" Grondal v. United States, 21 F.4th 1140, 1151 (9th Cir. 2021), 17 quoting Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). 18 Judicial estoppel is "invoked by a court at its discretion" to "protect the integrity of the 19 judicial process." New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001), internal 20 quotation marks and citations omitted. Where "a party assumes a certain position in a legal 21 proceeding, and succeeds in maintaining that position, he may not thereafter, simply because 22 his interests have changed, assume a contrary position." Id. at 749, internal quotation marks 23 omitted. The judicial estoppel "doctrine prohibits a party from gaining an advantage by 24 taking one position and then seeking a second advantage by taking a different position that 25 is incompatible with the first.” United States v. Marshall, No. 2:10-CR-236-GMN-PAL, 26 2017 WL 3812894, at *2 (D. Nev. Aug. 30, 2017), citation omitted. 27 The Supreme Court has identified three non-exclusive factors that should “inform” 28 1 a court's decision to apply judicial estoppel: 2 (1) “a party's later position must be ‘clearly inconsistent’ with its earlier position”; (2) “the party has succeeded in persuading a court to accept that party's earlier 3 position,” such that judicial acceptance of an inconsistent position would create the perception that one court was misled; and (3) “the party seeking to assert an 4 inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 750–51, 121 S.Ct. 1808 (internal 5 quotation marks and citations omitted). 6 Bock v. Washington, — F.4th —, No. 21-35182, 2022 WL 1447017, at *5 (9th Cir. May 9, 7 2022). 8 In this case, it cannot be said that Defendants' earlier position is clearly inconsistent 9 with its current position. Rather, if similar evidence is presented at trial, the defense 10 indicates it will again be willing to make the same stipulation. Defendants assert it is 11 consistent that their decision concerning whether to stipulate to the an element of Figueroa's 12 prima facie case is entirely dependent on the presentation of evidence at trial. Additionally, 13 as previously discussed by the Court in its summary judgment and other rulings, a genuine 14 dispute exists as to these issues and Defendants' positions on these issues fairly changed as 15 events occurred. It is reasonable for Defendants to wait until the evidence is presented to 16 determine whether a stipulation is appropriate. If Defendants fail to make such a stipulation, 17 it would not create the perception that the Court was misled; rather, the evidence presented 18 will not have been the same as in the first trial. 19 Lastly, Defendants would not derive an unfair advantage or impose an unfair 20 detriment on Figueroa if the Court fails to estop Defendants. Rather, Defendants are not 21 seeking an advantage by failing to make the stipulation; they are simply waiting to see what 22 evidence is presented. The Court, in its discretion, declines to invoke the doctrine of 23 judicial estoppel to protect the integrity of the judicial process – the integrity of the judicial 24 process is not threatened by the positions taken by the defense. 25 26 Judicial Admission 27 Figueroa requests confirmation of Defendants' admission that Figueroa was 28 1 physically impaired under the ADA during 2017. Figueroa asserts there is no basis to allow 2 Defendants to rescind their admission. 3 "Under federal law, a judicial admission is a statement by a party that, like a 4 stipulation, conclusively establishes a fact without the need for further proof." Davis v. 5 Pacificsource Health Plans, No. CV 19-180-M-DWM, 2020 WL 1812114, at *1 (D. Mont. 6 Apr. 9, 2020), citation omitted. The Ninth Circuit has stated: 7 In order to constitute a judicial admission that is binding on both the trial and appellate courts, an attorney's statement must have a fair degree of "formality"; i.e., 8 it must be done in writing or in open court and amount to a real concession of a fact at issue, and not have been made merely as a concession for some unrelated purpose. 9 United States v. Novak, 99 F.3d 1147 (9th Cir. 1996), citation omitted. Courts have 10 discretion to treat factual statements made at oral argument as judicial admissions. United 11 States v. Wilmer, 799 F.2d 495, 502 (9th Cir. 1986). 12 Defendants argue that, because the mistrial is the equivalent of no trial, there is no 13 admission that can be considered binding. None of the cases cited to by the defense, 14 however, involved a factual situation like the one in this case. The Court has found only 15 one case that raises this issue. However, in an unpublished opinion, that court found it need 16 not address the issue. See U.S. ex rel. D'Elegance Mgmt. Ltd.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Natalie Figueroa, ) 9 ) Plaintiff, ) No. CIV 19-022-TUC-CKJ 10 ) vs. ) 11 ) ORDER Gannett Company Incorporated, et al., ) 12 ) Defendants. ) 13 ) 14 Pending before the Court are the Motion to Estop Defendants From Rescinding Their 15 Admission That Plaintiff Suffers a Physical Impairment Which Substantially Limited One 16 or More Major Life Activities (Doc. 201) filed by Plaintiff Natalie Figueroa ("Figueroa"). 17 Defendants have filed a response (Doc. 204). Also pending before the Court are 18 Defendants' Motion in Limine No. 1: To Exclude Testimony, Evidence, and Reference to 19 Gannett's Legal Counsel (Doc. 225), Defendants' Motion in Limine No. 2: To Limit 20 Plaintiff's Medical Experts to Opinions Formed During Their Treatment of Plaintiff (Doc. 21 226), and Plaintiff's Motion in Limine No. 1 (Doc. 231). The deadline to file responses to 22 the Motions in Limine has not passed; those motions, therefore, will be addressed in a 23 separate order. 24 25 Motion to Estop Defendants from Rescinding Their Admission that Plaintiff Suffers a Physical Impairment Which Substantially Limited One or More Major Life Activities (Doc. 201) 26 Figueroa requests the Court estop Defendants from rescinding an admission that 27 Figueroa was physically impaired under the Americans with Disabilities Act ("ADA") 28 1 during 2017. Figueroa asserts this stipulation/admission was made during discussion 2 regarding jury instructions. A review of the Final Jury Instructions indicates Defendants 3 stipulated that Figueroa had a physical or mental impairment that substantially limited one 4 or more major life activities. See Final Jury Instructions (Doc. 172, p. 13). However, 5 Figueroa has not presented this Court with a transcript demonstrating the specific language 6 of any stipulation or admission. Further, the Court recognizes its typical practice is to 7 informally discuss instructions off the record with counsel later being afforded an 8 opportunity to make objections on the record; i.e., there may not be a record of the specific 9 language used by the parties during the relevant discussion. Nonetheless, Defendants do not 10 dispute a stipulation was made, but limit the substance of the stipulation to that stated in the 11 Final Jury Instructions. 12 13 Judicial Estoppel 14 "'Judicial estoppel is an equitable doctrine that precludes a party from gaining an 15 advantage by asserting one position, and then later seeking an advantage by taking a clearly 16 inconsistent position.'" Grondal v. United States, 21 F.4th 1140, 1151 (9th Cir. 2021), 17 quoting Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). 18 Judicial estoppel is "invoked by a court at its discretion" to "protect the integrity of the 19 judicial process." New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001), internal 20 quotation marks and citations omitted. Where "a party assumes a certain position in a legal 21 proceeding, and succeeds in maintaining that position, he may not thereafter, simply because 22 his interests have changed, assume a contrary position." Id. at 749, internal quotation marks 23 omitted. The judicial estoppel "doctrine prohibits a party from gaining an advantage by 24 taking one position and then seeking a second advantage by taking a different position that 25 is incompatible with the first.” United States v. Marshall, No. 2:10-CR-236-GMN-PAL, 26 2017 WL 3812894, at *2 (D. Nev. Aug. 30, 2017), citation omitted. 27 The Supreme Court has identified three non-exclusive factors that should “inform” 28 1 a court's decision to apply judicial estoppel: 2 (1) “a party's later position must be ‘clearly inconsistent’ with its earlier position”; (2) “the party has succeeded in persuading a court to accept that party's earlier 3 position,” such that judicial acceptance of an inconsistent position would create the perception that one court was misled; and (3) “the party seeking to assert an 4 inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 750–51, 121 S.Ct. 1808 (internal 5 quotation marks and citations omitted). 6 Bock v. Washington, — F.4th —, No. 21-35182, 2022 WL 1447017, at *5 (9th Cir. May 9, 7 2022). 8 In this case, it cannot be said that Defendants' earlier position is clearly inconsistent 9 with its current position. Rather, if similar evidence is presented at trial, the defense 10 indicates it will again be willing to make the same stipulation. Defendants assert it is 11 consistent that their decision concerning whether to stipulate to the an element of Figueroa's 12 prima facie case is entirely dependent on the presentation of evidence at trial. Additionally, 13 as previously discussed by the Court in its summary judgment and other rulings, a genuine 14 dispute exists as to these issues and Defendants' positions on these issues fairly changed as 15 events occurred. It is reasonable for Defendants to wait until the evidence is presented to 16 determine whether a stipulation is appropriate. If Defendants fail to make such a stipulation, 17 it would not create the perception that the Court was misled; rather, the evidence presented 18 will not have been the same as in the first trial. 19 Lastly, Defendants would not derive an unfair advantage or impose an unfair 20 detriment on Figueroa if the Court fails to estop Defendants. Rather, Defendants are not 21 seeking an advantage by failing to make the stipulation; they are simply waiting to see what 22 evidence is presented. The Court, in its discretion, declines to invoke the doctrine of 23 judicial estoppel to protect the integrity of the judicial process – the integrity of the judicial 24 process is not threatened by the positions taken by the defense. 25 26 Judicial Admission 27 Figueroa requests confirmation of Defendants' admission that Figueroa was 28 1 physically impaired under the ADA during 2017. Figueroa asserts there is no basis to allow 2 Defendants to rescind their admission. 3 "Under federal law, a judicial admission is a statement by a party that, like a 4 stipulation, conclusively establishes a fact without the need for further proof." Davis v. 5 Pacificsource Health Plans, No. CV 19-180-M-DWM, 2020 WL 1812114, at *1 (D. Mont. 6 Apr. 9, 2020), citation omitted. The Ninth Circuit has stated: 7 In order to constitute a judicial admission that is binding on both the trial and appellate courts, an attorney's statement must have a fair degree of "formality"; i.e., 8 it must be done in writing or in open court and amount to a real concession of a fact at issue, and not have been made merely as a concession for some unrelated purpose. 9 United States v. Novak, 99 F.3d 1147 (9th Cir. 1996), citation omitted. Courts have 10 discretion to treat factual statements made at oral argument as judicial admissions. United 11 States v. Wilmer, 799 F.2d 495, 502 (9th Cir. 1986). 12 Defendants argue that, because the mistrial is the equivalent of no trial, there is no 13 admission that can be considered binding. None of the cases cited to by the defense, 14 however, involved a factual situation like the one in this case. The Court has found only 15 one case that raises this issue. However, in an unpublished opinion, that court found it need 16 not address the issue. See U.S. ex rel. D'Elegance Mgmt. Ltd. v. Universal Sur. of Am., No. 17 99-2195, 2000 WL 1224164, at *6, n. 15 (4th Cir. Aug. 29, 2000) 18 However, where a statement is made during an unreported informal status 19 conference, the treatment of the statement may not be appropriate. Daul v. PPM Energy, 20 Inc., 267 F.R.D. 641, 649 (D. Or. 2010). Indeed, courts have declined to treat informal 21 statements as judicial admissions. In re Twitter, Inc. Sec. Litig., No. 16-CV-05314-JST, 22 2020 WL 5904407, at *2 (N.D. Cal. Oct. 6, 2020); Lopez v. Liberty Mut. Ins. Co., No. 23 2:14-cv-05576-AB (JCx), 2019 WL 4605706, at *3 (C.D. Cal. July 25, 2019). Here, 24 Defendants do not dispute that they made the stipulation; however, the specific language of 25 Defendants' statements is not known. 26 As the statement by Defendants was sufficiently formal to warrant including the 27 stipulation into the Final Jury Instructions, the Court finds it was a formal statement. 28 1 || However, because the Court is unaware of the specific language used during the discussion, 2 || the Court cannot determine the context of the statement. For example, Defendants may have 3 || specifically stated that, based on the evidence presented, we are willing to stipulate to 4 || certain facts. In these circumstances, the Court declines to exercise its discretion to treat the 5 || statement as a judicial admission. 7 || Request for Attorneys’ Fees 8 As the Court has found the doctrines of judicial estoppel and judicial admission do 9 || not warrant the Court's exercise of jurisdiction to confirm the stipulation/admission of 10 || Defendants, the Court declines to award attorneys' fees to Figueroa. 11 Accordingly, IT IS ORDERED the Motion to Estop Defendants From Rescinding 12 || Their Admission That Plaintiff Suffers a Physical Impairment Which Substantially Limited 13 || One or More Major Life Activities (Doc. 201) is DENIED. 14 DATED this 12th day of May, 2022. 15 A. ig L On gorsnore? 17 Cindy K. Jorgénso 8 United States District Judge 19 20 21 22 23 24 25 26 27 28 -5-