United States District Court, W.D. North Carolina, Charlotte Division
WILLARD ALLEN RILEY, MARIO RONCHETTI SCOTT REHBERG, Plaintiffs,
FLOWERS BAKING COMPANY OF JAMESTOWN, LLC FLOWERS FOODS, INC., Defendants.
MAX O. COGBURN, District Judge.
THIS MATTER is before the court on defendants' Motion for Summary Judgment. Plaintiff James A. Fields filed a timely Response (#89) to that motion and defendants neither filed a Reply, which was dues to be filed not later than July 21, 2014, nor notified the court that they did not intend to file a Reply as provided in Local Civil Rule 7.1(E), L.Civ.R. (W.D. N.C. ). Having considered defendants' motion and reviewed the pleadings, the court enters the following Order denying defendants' Motion for Summary judgment based on a theory of judicial estoppel.
FINDINGS and CONCLUSIONS
Defendants have moved for summary judgment on opt-in plaintiff James A. Fields' FLSA claim based on a theory that he is judicially estopped from asserting such claim in this court because he failed to bring that claim to the attention of the bankruptcy court when he filed for personal bankruptcy protection under Chapter 13 on or about August 31, 2011. It is undisputed that he did not include his potential claim against his employer under the FLSA in his sworn schedule of assets. When asked about such omission during his deposition in this case, Mr. Fields testified that while he questioned defendants' pay practices at that time, he had no knowledge in 2011 that he had a potential legal claim against his employer under the FLSA until he received the class notice this court approved in the Spring of -. Mr. Fields' Chapter 13 Petition was converted into a Chapter 7 and he received a discharge on September 26, 2012. Nearly eight months later, Mr. Fields opted-into this action.
II. Summary Judgment
The court has considered the arguments of the parties alongside the evidentiary material provided by the parties. Rule 56(a), Federal Rules of Civil Procedure, provides:
A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
Fed.R.Civ.P. 56(a). The rule goes on to provide procedures for plaintiff to use in responding to a Motion for Summary Judgment:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a ...