Konan Kile v. Jomax LLC

Opinion

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5 UNITED STATES DISTRICT COURT AT TACOMA 7 KONAN KILE, CASE NO. C25-5923 BHS 8 Plaintiff, ORDER 9 v. 11 Defendant. 12

13 THIS MATTER is before the Court on defendant Jomax LLC’s motion for 14 judgment on the pleadings, Dkt. 14, and on plaintiff Konan Kile’s unopposed motion to 15 amend her complaint to add new defendants, Dkt. 15. 16 Kile sued Jomax in Pierce County Superior Court on August 14, 2025, alleging 17 that Jomax is a debt collector, that it purchased a debt she owed to an unnamed entity, 18 and that she noticed in February 2025 that Jomax was incorrectly reporting her debt as 19 “disputed.” She contends that Jomax continued to report her debt as “disputed,” even 20 after she sent it notice that she was withdrawing her dispute, and demanded that Jomax 21 22 1 remove that notation.1 Dkt. 1-2 at 2. She asserts claims for violations of the federal Fair 2 Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., the Washington Consumer 3 Protection Act, RCW 19.86 et seq., and the Washington Collection Agency Act., RCW

4 19.16.250. 5 Jomax timely removed the case here based on the federal claim. Its answer 6 asserted that Kile is judicially estopped from asserting these claims. Dkt. 12 at 5. It now 7 seeks judgment on the pleadings under Federal Rule of Procedure 12(c), asking the Court 8 to take Federal Rule of Evidence 201 judicial notice of public records attached to its

9 motion. Dkt. 14 at 3 n.1 and 2 (citing Dkt. 14-1). 10 The Court will take judicial notice2 of the public records. They demonstrate that 11 three weeks before she sued Jomax, Kile filed for protection under Chapter 7 of the 12 Bankruptcy Code. She listed as an asset one “claim against third parties, whether or not 13 you have filed a lawsuit or made a demand for payment”:

14 Personal injury claim arising from motor vehicle accident that occurred on December 3, 2021. Debtor is represented by attorney Spencer Freeman. 15 Lawsuit was filed in Pierce County Superior Court on March 12, 2024 and is awaiting trial. 16 17

1 The Court notes that it is far more common for an FDCPA plaintiff to assert that a 18 creditor has failed to note that the debt is “disputed.” 2 Under Federal Rules of Evidence 201, a court may take judicial notice of “matters of 19 public record. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). A judicially noticed fact must be one “not subject to reasonable dispute because it . . . can be accurately and 20 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), abrogated on 21 other grounds, Galbraith v. Cnty of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (A court may not take judicial notice of “disputed factual matters,” though it may take judicial notice of 22 the fact that prior court proceedings occurred.). 1 Dkt. 14-1 at 15. Kile claimed the asset was “exempt” under RCW 6.15.010(1)(d)(vii). Id. 2 at 18. 3 Kile’s bankruptcy filing also listed a $19,492 unsecured debt to Jomax. Id. at 21.

4 She listed that debt as “not subject to offset.” Id. She did not amend her schedule to list 5 her claim against Jomax in this case. On October 29, 2025, the Bankruptcy Court 6 discharged Kile’s debts, including her debt to Jomax. Id. at 52. 7 Jomax argues that Kile’s failure to list her claims against Jomax as an asset in her 8 bankruptcy case judicially estops her from asserting a claim against it in this lawsuit. Dkt.

9 14 at 7. It argues the Ninth Circuit has “repeatedly applied judicial estoppel where a 10 debtor fails to disclose a potential cause of action in bankruptcy and later attempts to 11 prosecute that claim after obtaining relief from the bankruptcy court.” Dkt. 14 at 7–8 12 (citing Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 783 (9th Cir. 2001); Hay 13 v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 (9th Cir. 1992)). It asks the

14 Court to dismiss Kile’s claims against it with prejudice. 15 Federal Rule of Civil Procedure 12(c) “is ‘functionally identical’ to Rule 12(b)(6) 16 and . . . ‘the same standard of review’ applies to motions brought under either 17 rule.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th 18 Cir. 2011) (quoting Dworkin v. Hustler Mag. Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)).

19 Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal 20 theory or the absence of sufficient facts alleged under a cognizable legal 21 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A 22 plaintiff’s complaint must allege facts to state a claim for relief that is plausible on its 1 face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has “facial plausibility” when 2 the party seeking relief “pleads factual content that allows the court to draw 3 the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

4 Judicial estoppel is an equitable doctrine invoked to prevent a party from gaining 5 an advantage by taking inconsistent positions and to preserve the orderly administration 6 of justice and regard for the dignity of judicial proceedings by protecting against a litigant 7 “playing fast and loose with the courts.” See Milton H. Greene Archives v. Marilyn 8 Monroe LLC, 692 F.3d 983, 993 (9th Cir. 2012) (citing Hamilton v. State Farm Fire &

9 Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001)). It “prevents a party from prevailing in one 10 phase of a case on an argument and then relying on a contradictory argument in another 11 phase.” New Hampshire v. Maine, 532 U.S. 742, 748 (2001) (citing Pegram v. Herdrich, 12 530 U.S. 211, 227, n.8 (2000)). By prohibiting parties from deliberately changing 13 positions according to the exigencies of the moment, it protects the judicial process’s

14 integrity. See id. 15 The circumstances under which judicial estoppel may be invoked are not reducible 16 to a general formulation. See id. at 752. Nevertheless, the Supreme Court has identified 17 three factors that help inform a Court’s decision: (1) whether a party’s later position is 18 clearly inconsistent with its earlier position, (2) whether the party has succeeded in

19 persuading a court to accept its earlier position, and (3) whether the party seeking to 20 assert the inconsistent position would derive an unfair advantage or impose an unfair 21 detriment on the opposing party if not estopped. See Pegram, 530 U.S. at 227. 22 1 Kile argues that any failure was “inadvertent,” and that this litigation was filed 2 “near the end” of her bankruptcy case. Dkt. 16 at 2. She argues that her positions in the 3 two courts are not inconsistent, and that the Bankruptcy Court did not “accept” or rely on

4 her failing to list all of her assets when it discharged all of her debts. Id. at 6. 5 Kile argues that even if her failure to disclose the claim is an “issue,” the 6 corrective is to stay this case and permit her to return to Bankruptcy Court, reopen her 7 case, and permit the trustee to determine whether to pursue this claim on the estate’s 8 behalf. Dkt. 16 at 8–9 (citing Ah Quin v. County of Kauai Dep’t of Transp., 733 F.3d 267,

9 271, 276–77 (9th Cir. 2013) (Where a debtor fails to disclose claims in bankruptcy due to 10 “inadvertence” or “mistake,” and moves to reopen their bankruptcy to disclose the 11 litigation, judicial estoppel is inapplicable.)). 12 The Court does not agree. Ah Quin did result in a remand to the District Court, but 13 it does not support permitting Kile to avoid dismissal here. Ah Quin involved an

14 employment discrimination claim against an “unrelated third party,” which was filed 15 prior to the bankruptcy filing. The plaintiff’s attorney in the discrimination case 16 discovered the discrepancy and informed the defendant about the bankruptcy, and she 17 proactively moved to reopen and correct her bankruptcy case. She explained why she had 18 mistakenly not disclosed her discrimination case. Ah Quin, 733 F.3d at 278.

19 The Ninth Circuit reiterated the “basic” rule that where the debtor seeks to pursue 20 post discharge a claim that was known but not disclosed, the action is barred: 21 In the bankruptcy context, the federal courts have developed a basic default rule: If a plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from 22 the bankruptcy schedules and obtains a discharge (or plan confirmation), 1 judicial estoppel bars the action. See, e.g., Payless Wholesale Distribs., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571 (1st Cir.1993) (“Conceal 2 your claims; get rid of your creditors on the cheap, and start over with a bundle of rights. This is a palpable fraud that the court will not tolerate, 3 even passively.”); Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 (9th Cir.1992) (holding that “[f]ailure to give the required notice 4 [to the bankruptcy court] estops [the plaintiff-debtor] and justifies the grant of summary judgment to the defendants”). The reason is that the plaintiff- 5 debtor represented in the bankruptcy case that no claim existed, so he or she is estopped from representing in the lawsuit that a claim does exist. 6 Ah Quin, 733 F.3d at 271. 7 Kile was plainly aware of the facts allegedly supporting her claims against Jomax 8 when she filed for bankruptcy, and when she obtained a discharge—including a discharge 9 of her debt to Jomax. Kile was represented by counsel throughout both proceedings. She 10 was aware of the requirement that she list as an asset any claim against a third party; she 11 listed her pending personal injury case and claimed it was exempt. There is no evidence 12 supporting her claim or the conclusion that her failure to list the claims she asserts here 13 was inadvertent. The timing and the context strongly implies the opposite. 14 Kile filed this suit 23 days after she filed for bankruptcy, and 76 days before her 15 debts were discharged. Her claim is based on facts she alleges occurred well before she 16 filed for bankruptcy, and they relate directly to a debt she listed and had discharged in 17 that bankruptcy. She did not amend her bankruptcy filings, and she has made no move to 18 reopen her bankruptcy. Her claim is against a creditor whose claim she erased in 19 bankruptcy, not an unrelated third party. Permitting her to avoid dismissal by staying this 20 case and letting her re-open her bankruptcy to properly list this claim is unfair to Jomax 21 on this record. As Ah Quin recognized, 22 1 The success of our bankruptcy laws requires a debtor’s full and honest disclosure. Allowing [the debtor] to back-up, re-open the bankruptcy case, 2 and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider 3 disclosing potential assets only if he is caught concealing them. This so- called remedy would only diminish the necessary incentive to provide the 4 bankruptcy court with a truthful disclosure of the debtors’ assets.

5 Ah Quin, 733 F.3d at 274 (citing the “oft-quoted” Burnes v. Pemco Aeroplex, Inc., 6 291 F.3d 1282, 1286–87 (11th Cir. 2002)). 7 In short, allowing Kile’s claim against her former creditor to proceed after the 8 discharge of her debt to that creditor would allow her to “play fast and loose” with the 9 courts. Nothing prevented her from seeking to correct her error long before this motion 10 was filed. Jomax’s motion for judgment on the pleadings, Dkt. 14, is GRANTED, and 11 Kile’s claims against it are DISMISSED with prejudice. 12 Kile’s motion to her amend complaint is unopposed. She seeks to add new 13 defendants and new claims against them. Dkt. 15-1. It is not clear whether these claims 14 similarly should have been listed on Kile’s bankruptcy filing, and the Court cannot 15 conclude that the amendment would be futile. Kile’s motion to amend, Dkt. 15, is 16 GRANTED, though the claims against defendant Jomax are dismissed and should be 17 removed. She should revise her amended complaint and file it within 14 days. 19 Dated this 3rd day of April, 2026. A 20 21 BENJAMIN H. SETTLE 22 United States District Judge