United States District Court, E.D. Virginia, Norfolk Division
L. WRIGHT ALLEN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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.
STANDARDS RELEVANT TO THE OBJECTIONS
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)).
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
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.
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).
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.
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.
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 ...