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Crawford v. Newport News Industrial Corporation

United States District Court, E.D. Virginia, Norfolk Division

April 1, 2018

JAMESINA CRAWFORD, et al, Plaintiffs,



         A Second Amended Complaint was filed in this Court on May 4, 2015, in which a total of thirty-eight Plaintiffs filed suit against Defendant Newport News Industrial Corporation ("NNI"). The Second Amended Complaint asserts various claims of employment discrimination, retaliation, and hostile work environment by welders, fitters, and laborers employed at or by NNI. ECF No. 15.

         On January 5, 2016, the parties stipulated to the dismissal of one Plaintiff. ECF No. 56. Defendant NNI subsequently filed separate Motions for Summary Judgment against the remaining thirty-seven Plaintiffs. This Order addresses NNFs Motions for Summary Judgment against five of these Plaintiffs: Marvin Smith (ECF No. 113); Keith Chisman (ECF No. 127); Naseer Marshall (ECF No. 137); Kevin Smith (ECF No. 157); and Richard Payton (ECF No. 179) (collectively for purposes of this Order, "Plaintiffs"). These motions (and others) were referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), and Local Rule 72 for a report and recommendation ("R&R"). The Magistrate Judge issued the R&R addressing these Plaintiffs on February 12, 2018. ECF No. 293. The Magistrate Judge recommended that NNI's Motions for Summary Judgment against these Plaintiffs be granted on the grounds that judicial estoppel barred these Plaintiffs' actions. Id. at 30.

         By copy of the report, each party was advised of the right to file written objections to the findings and recommendations made by the Magistrate Judge. Id. Plaintiffs Naseer Marshall, Kevin Smith, Marvin Smith and Richard Payton filed objections to the Report and Recommendation on February 26, 2018. ECF No. 295. Plaintiff Keith Chisman did not object to the Report and Recommendation.

         As indicated in the R&R, "failure to file timely specific written objections to the . . . findings and recommendations will result in a waiver of right to appeal from a judgment of this Court based on such findings and recommendations." ECF No. 293, R&R at 31 (citations omitted). This Court has reviewed the R&R as it pertains to Plaintiff Keith Chisman and, finding no error, hereby ADOPTS and APPROVES in full the findings and recommendations set forth therein regarding Mr. Chisman. Accordingly, it is hereby ORDERED that NNI's Motion for Summary Judgment (ECF No. 127) is GRANTED as to Mr. Chisman.

         The Court has also reviewed the full record and has carefully examined the objections filed by Plaintiffs Marshall, K. Smith, M. Smith and Payton. The Court has proceeded to undertake specific review of the recommendations pertaining to these Plaintiffs and to make de novo findings with respect to the portions of the recommendations to which these Plaintiffs object, as well. Fed.R.Civ.P. Sec. 72 (b)(3).

         In performing these responsibilities this Court may "accept, reject or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.; see also Prototype Prods, v. Reset, Inc., 844 F.Supp.2d 691, 696 (E.D. Va. 2012) (reviewing courts have "the discretion to consider new evidence"). For the reasons provided herein, the objections are overruled and the R&R as to these Plaintiffs is adopted.

         These Plaintiffs object to the R&R on the grounds that (i) it fails to draw all inferences in favor of the nonmovants, (ii) makes allegedly impermissible credibility determinations reserved for the jury, and (iii) makes erroneous findings of law. ECF No. 295, at 2. The objections are without merit.


         The Magistrate Judge correctly identified and applied the standards applicable to the questions presented in the motions for summary judgment regarding these Plaintiffs. These standards need only be reviewed briefly for the purposes of evaluating the objections. The Magistrate Judge recognized that a debtor "seeking shelter in a federal bankruptcy action has a continuing affirmative obligation to disclose all actual or potential legal claims to the Bankruptcy Court, because such claims constitute 'property of the estate' subject to the bankruptcy trustee's exclusive control." ECF No. 293, R&R at 11 (quoting Vanderheyden v. Peninsula Airport Comm'n, No. 4:12cv46, 2013 WL 30065, at *11 (E.D. Va. Jan. 2, 2013)).

         Relatedly, the doctrine of judicial estoppel "precludes a party from adopting a position that is inconsistent with a stance taken in prior litigation, " and prevents parties "from playing 'fast and loose' with the courts-to deter improper manipulation of the judiciary." Id. (quoting Folio v. City of Clarksburg, W Va., 134 F.3d 1211, 1217 (4th Cir. 1998); Jon S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 28 (4th Cir. 1995)). Through the proper invocation of judicial estoppel, a "debtor may be precluded from pursuing claims about which [he or she] was aware of, but did not disclose during the bankruptcy proceedings." Id. at 12 (quoting Haydu v. Tidewater Comm. College, 268 F.Supp.2d 843, 848 (E.D. Va. 2017)). The Magistrate Judge proceeded to apply these standards to each of the five Plaintiffs identified. He concluded that "each of these five Plaintiffs should be judicially estopped from pursuing their claims in this Court based on their failure to disclose to the Bankruptcy Court their pending or potential claims for employment discrimination." Id.

         Four Plaintiffs have advanced objections, and these objections are examined individually. For the reasons presented in the R&R and reiterated below, the R&R is adopted over the objections and Defendant's motions for summary judgment as to these Plaintiffs are granted.

         In each case, the Plaintiffs failure to meet the statutory duty to disclose legal or equitable interests, including potential causes of action and litigation pursued outside of bankruptcy, has triggered the proper application of the doctrine of judicial estoppel. This doctrine, properly applied, bars the subsequent action. Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007).

         The United States Court of Appeals for the Fourth Circuit has recognized four factors that must be met to invoke judicial estoppel: (1) the party to be estopped is advancing an assertion that is inconsistent with a position taken during previous litigation; (2) the position is one of fact instead of law; (3) the prior position was accepted by the court in the first proceeding; and (4) the party to be estopped has acted intentionally, not inadvertently. Folio, 134 F.3d at 1217-18. As discussed below, in each case presently before the Court, the four factors have been met.


         The circumstances regarding Mr. Marshall's bankruptcy and subsequent participation in this litigation have been recited thoroughly by the Magistrate Judge and are adopted and briefly highlighted here to assist in the evaluation of his objections. Mr. Marshall became a party to this litigation on February 11, 2015. Several months later, on September 14, 2015, Mr. Marshall filed a voluntary petition for bankruptcy in the Eastern District of Virginia under Chapter 7 of the Bankruptcy Code. In re Naseer Marshall, No. 15-73144. Mr. Marshall was represented by counsel when petitioning for bankruptcy, and he failed to disclose this employment discrimination claim in his petition. On October 22, 2015, the Trustee issued a Report of No. Distribution, finding that no assets were available for distribution from the estate to satisfy creditors over and above that exempted by law. Mr. Marshall's attorney filed an Amended Schedule on December 7, 2015 to add a creditor, but again did not disclose the claim from this discrimination lawsuit.

         Mr. Marshall received his Discharge of Debtor on December 28, 2015, and his case was closed on January 4, 2016. On February 25, 2016, the trustee filed a Motion to Reopen the ...

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