Case: 17-14022 Date Filed: 06/29/2018 Page: 1 of 7
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14022 Non-Argument Calendar ________________________
D.C. Docket No. 3:16-cv-00205-HNJ
TIMOTHY WEAKLEY,
Plaintiff-Appellant,
versus
EAGLE LOGISTICS, CELADON TRUCKING,
Defendants-Appellees.
________________________
No. 17-14023 Non-Argument Calendar ________________________
D.C. Docket No. 3:16-cv-00403-HNJ
Plaintiff-Appellant, Case: 17-14022 Date Filed: 06/29/2018 Page: 2 of 7
JENNIFER ROBERTS, QUALITY COMPANIES,
Appeals from the United States District Court for the Northern District of Alabama ________________________
(June 29, 2018)
Before ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Timothy Weakley appeals the district court’s
grant of summary judgment against him in favor of Eagle Logistics Services and
Celadon Trucking Services, and its grant of summary judgment against him (in a
separate lawsuit) in favor of Jennifer Roberts and Quality Companies. Weakley
contends that the district court abused its discretion by dismissing his two lawsuits
based on the doctrine of judicial estoppel as a result of Weakley’s failure to
disclose them in his bankruptcy proceeding.
We review only for abuse of discretion the district court’s application of
judicial estoppel. Slater v. U.S. Steel Corp., 871 F.3d 1174, 1180 n.4 (11th Cir.
2017) (en banc). A debtor who has filed for bankruptcy “must file sworn
2 Case: 17-14022 Date Filed: 06/29/2018 Page: 3 of 7
disclosures listing his debts and his assets, including any pending civil claims, and
identifying any lawsuits he has filed against others.” Id. at 1176. When a debtor
fails to list a pending civil claim as an asset in a bankruptcy proceeding, the
equitable doctrine of judicial estoppel allows a court to exercise its discretion to
dismiss the debtor’s civil claim. See id. at 1180.
We use a two-part test to guide district courts in applying judicial estoppel:
(1) Whether the plaintiff “took a position under oath in the bankruptcy proceeding
that was inconsistent with the plaintiff’s pursuit of the civil lawsuit[s],” and
(2) whether the inconsistent positions “were calculated to make a mockery of the
judicial system.” Id. at 1180–81 (quotation marks omitted). There is no question
that Weakley took an inconsistent position under oath in a separate proceeding. In
his Chapter 13 bankruptcy proceeding he failed to disclose the two lawsuits and the
claims in them as assets after asserting those claims and an entitlement to damages
in the lawsuits. See Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1275 (11th
Cir. 2010) (“[F]ailure to timely amend a Chapter 13 reorganization plan to reflect a
pending claim while simultaneously pursing that claim in another court of law
constitutes inconsistent positions under oath.”). As a result, we turn to the second
prong.
3 Case: 17-14022 Date Filed: 06/29/2018 Page: 4 of 7
As for the second prong, district courts must “look to all the facts and
circumstances of the case to decide whether a plaintiff intended to mislead the
court . . . .” Slater, 871 F.3d at 1186. For example, a court may consider:
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 [a] party, and any findings or actions by the bankruptcy court after the omission was discovered.
Id. at 1185. The court may also consider the plaintiff’s explanation for the
omission, id. at 1177, although it need not credit that explanation, id. at 1186 n.12;
see also id. at 1190–91 (Carnes, C.J., concurring) (“[I]n deciding whether a
plaintiff intended to mislead when she omitted a claim from her bankruptcy
schedules, or failed to update a schedule to include the claim, the district court is
not required to accept the plaintiff’s denial of her intent. And that is true even if
her denial is made under oath and not contradicted by other evidence.”).
In concluding that Weakley intentionally misled the bankruptcy court, the
district court considered that he not only failed to include the two lawsuits in his
initial bankruptcy filings but he also failed to include them in any of the six
separate amendments that he made to his schedules and filings during the
bankruptcy proceeding. The court pointed out that it was not until the defendants
in both lawsuits had relied on his failure to disclose as grounds for dismissal of the 4 Case: 17-14022 Date Filed: 06/29/2018 Page: 5 of 7
lawsuits that Weakley finally amended his bankruptcy filings to disclose those two
lawsuits and the claims they asserted. The court also considered his ability to
benefit financially at his creditors’ expense by concealing the two lawsuits. Not
only that but Weakley had disclosed as assets in the bankruptcy proceeding two
other lawsuits he had filed, both of which were of much lesser potential value than
the two nondisclosed ones, which together sought damages in excess of
$14,000,000. The district court reasoned that his failure to disclose the two higher
claim lawsuits while disclosing the other two lesser claim ones “indicates a motive
to exclude the potentially more lucrative, non-exempt [lawsuit assets] from the
bankruptcy proceedings.” Finally, the court took into account the fact that
Weakley had filed four other bankruptcy petitions, “demonstrating that [he] should
have been familiar with the requirements.”
Although the district court reached its ruling before this Court issued its en
banc decision in Slater, its analysis is consistent with that decision. Slater
overruled our precedent that allowed courts to automatically infer a plaintiff’s
intent to mislead based solely on the plaintiff’s failure to disclose a civil claim in a
bankruptcy proceeding. See id. at 1185. The district court did not infer Weakley’s
intent to mislead the court based only on his failure to disclose but instead made its
determination based on the facts and circumstances relating to the bankruptcy
5 Case: 17-14022 Date Filed: 06/29/2018 Page: 6 of 7
filings and nondisclosure. Our Slater decision requires a district court to consider
the entire record, see id., which is what the district court did.
Weakley also argues that the judicial estoppel issue is moot because he
voluntarily dismissed his Chapter 13 bankruptcy petition. 1 It isn’t moot. The
judicial estoppel issue presented to us in this appeal is not about what should
happen in the bankruptcy proceeding, a case that has not been appealed to us.
Instead, the issue is whether the district court abused its discretion in dismissing on
judicial estoppel grounds the two lawsuits that Weakley filed against the appellees
in the appeal before us. Weakley did not dismiss either one of these two lawsuits;
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Case: 17-14022 Date Filed: 06/29/2018 Page: 1 of 7
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14022 Non-Argument Calendar ________________________
D.C. Docket No. 3:16-cv-00205-HNJ
TIMOTHY WEAKLEY,
Plaintiff-Appellant,
versus
EAGLE LOGISTICS, CELADON TRUCKING,
Defendants-Appellees.
________________________
No. 17-14023 Non-Argument Calendar ________________________
D.C. Docket No. 3:16-cv-00403-HNJ
Plaintiff-Appellant, Case: 17-14022 Date Filed: 06/29/2018 Page: 2 of 7
JENNIFER ROBERTS, QUALITY COMPANIES,
Appeals from the United States District Court for the Northern District of Alabama ________________________
(June 29, 2018)
Before ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Timothy Weakley appeals the district court’s
grant of summary judgment against him in favor of Eagle Logistics Services and
Celadon Trucking Services, and its grant of summary judgment against him (in a
separate lawsuit) in favor of Jennifer Roberts and Quality Companies. Weakley
contends that the district court abused its discretion by dismissing his two lawsuits
based on the doctrine of judicial estoppel as a result of Weakley’s failure to
disclose them in his bankruptcy proceeding.
We review only for abuse of discretion the district court’s application of
judicial estoppel. Slater v. U.S. Steel Corp., 871 F.3d 1174, 1180 n.4 (11th Cir.
2017) (en banc). A debtor who has filed for bankruptcy “must file sworn
2 Case: 17-14022 Date Filed: 06/29/2018 Page: 3 of 7
disclosures listing his debts and his assets, including any pending civil claims, and
identifying any lawsuits he has filed against others.” Id. at 1176. When a debtor
fails to list a pending civil claim as an asset in a bankruptcy proceeding, the
equitable doctrine of judicial estoppel allows a court to exercise its discretion to
dismiss the debtor’s civil claim. See id. at 1180.
We use a two-part test to guide district courts in applying judicial estoppel:
(1) Whether the plaintiff “took a position under oath in the bankruptcy proceeding
that was inconsistent with the plaintiff’s pursuit of the civil lawsuit[s],” and
(2) whether the inconsistent positions “were calculated to make a mockery of the
judicial system.” Id. at 1180–81 (quotation marks omitted). There is no question
that Weakley took an inconsistent position under oath in a separate proceeding. In
his Chapter 13 bankruptcy proceeding he failed to disclose the two lawsuits and the
claims in them as assets after asserting those claims and an entitlement to damages
in the lawsuits. See Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1275 (11th
Cir. 2010) (“[F]ailure to timely amend a Chapter 13 reorganization plan to reflect a
pending claim while simultaneously pursing that claim in another court of law
constitutes inconsistent positions under oath.”). As a result, we turn to the second
prong.
3 Case: 17-14022 Date Filed: 06/29/2018 Page: 4 of 7
As for the second prong, district courts must “look to all the facts and
circumstances of the case to decide whether a plaintiff intended to mislead the
court . . . .” Slater, 871 F.3d at 1186. For example, a court may consider:
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 [a] party, and any findings or actions by the bankruptcy court after the omission was discovered.
Id. at 1185. The court may also consider the plaintiff’s explanation for the
omission, id. at 1177, although it need not credit that explanation, id. at 1186 n.12;
see also id. at 1190–91 (Carnes, C.J., concurring) (“[I]n deciding whether a
plaintiff intended to mislead when she omitted a claim from her bankruptcy
schedules, or failed to update a schedule to include the claim, the district court is
not required to accept the plaintiff’s denial of her intent. And that is true even if
her denial is made under oath and not contradicted by other evidence.”).
In concluding that Weakley intentionally misled the bankruptcy court, the
district court considered that he not only failed to include the two lawsuits in his
initial bankruptcy filings but he also failed to include them in any of the six
separate amendments that he made to his schedules and filings during the
bankruptcy proceeding. The court pointed out that it was not until the defendants
in both lawsuits had relied on his failure to disclose as grounds for dismissal of the 4 Case: 17-14022 Date Filed: 06/29/2018 Page: 5 of 7
lawsuits that Weakley finally amended his bankruptcy filings to disclose those two
lawsuits and the claims they asserted. The court also considered his ability to
benefit financially at his creditors’ expense by concealing the two lawsuits. Not
only that but Weakley had disclosed as assets in the bankruptcy proceeding two
other lawsuits he had filed, both of which were of much lesser potential value than
the two nondisclosed ones, which together sought damages in excess of
$14,000,000. The district court reasoned that his failure to disclose the two higher
claim lawsuits while disclosing the other two lesser claim ones “indicates a motive
to exclude the potentially more lucrative, non-exempt [lawsuit assets] from the
bankruptcy proceedings.” Finally, the court took into account the fact that
Weakley had filed four other bankruptcy petitions, “demonstrating that [he] should
have been familiar with the requirements.”
Although the district court reached its ruling before this Court issued its en
banc decision in Slater, its analysis is consistent with that decision. Slater
overruled our precedent that allowed courts to automatically infer a plaintiff’s
intent to mislead based solely on the plaintiff’s failure to disclose a civil claim in a
bankruptcy proceeding. See id. at 1185. The district court did not infer Weakley’s
intent to mislead the court based only on his failure to disclose but instead made its
determination based on the facts and circumstances relating to the bankruptcy
5 Case: 17-14022 Date Filed: 06/29/2018 Page: 6 of 7
filings and nondisclosure. Our Slater decision requires a district court to consider
the entire record, see id., which is what the district court did.
Weakley also argues that the judicial estoppel issue is moot because he
voluntarily dismissed his Chapter 13 bankruptcy petition. 1 It isn’t moot. The
judicial estoppel issue presented to us in this appeal is not about what should
happen in the bankruptcy proceeding, a case that has not been appealed to us.
Instead, the issue is whether the district court abused its discretion in dismissing on
judicial estoppel grounds the two lawsuits that Weakley filed against the appellees
in the appeal before us. Weakley did not dismiss either one of these two lawsuits;
instead, he has appealed the district court’s dismissal of them. The propriety of
that dismissal is not moot.
To the extent Weakley argues that his voluntary dismissal of his bankruptcy
petition makes the district court’s application of the judicial estoppel doctrine an
abuse of discretion in this case, we reject that contention. Judicial estoppel serves
to “prevent the perversion of the judicial process and protect its integrity.” Id. at
1180 (quotation marks and alterations omitted). It cannot serve that purpose as
well if a duplicitous debtor is assured that he can always avoid the doctrine’s bite
by dismissing his bankruptcy petition after his duplicity is found out. And that is
1 In his briefs Weakley also makes several factual allegations that he did not make in the district court. We can’t and won’t consider those allegations. See Daniel v. Taylor, 808 F.2d 1401, 1404 n.2 (11th Cir. 1986) (“[T]his Court cannot consider evidence which was not before the district court.”). 6 Case: 17-14022 Date Filed: 06/29/2018 Page: 7 of 7
what Weakley sought to do. He didn’t voluntarily dismiss his bankruptcy petition
until after the defendants moved for summary judgment on the grounds that he
intentionally omitted these two lawsuits from his bankruptcy filings. To guarantee
Weakley and others in his situation that, if caught, they could always undo the
application of the judicial estoppel doctrine would render it toothless.
Because the district court considered all the facts and circumstances of
Weakley’s cases in determining whether he intended to mislead the bankruptcy
court, see id. at 1185, it did not abuse its discretion by applying judicial estoppel
and dismissing these two lawsuits that he failed to disclose in his bankruptcy
proceeding.
AFFIRMED.