Mahabir v. Crocker

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23-P-848 Appeals Court

JUDITH MAHABIR vs. JAMES CROCKER & others.1

No. 23-P-848.

Barnstable. February 5, 2024. – May 29, 2024.

Present: Wolohojian, Englander, & Brennan, JJ.2

Bankruptcy. Practice, Civil, Judgment on the pleadings, Motion
to amend. Judicial Estoppel.

Civil action commenced in the Superior Court Department on
October 17, 2019.

The case was heard by Thomas J. Perrino, J., on a motion
for summary judgment, and a motion for judgment on the pleadings
or, in the alternative, for reconsideration was considered by
him.

Richard K. Latimer for the plaintiff.
Keerthi Sugumaran for the defendants.

1 Luke Jackson, Richard Deegan, James DeRosa, Joel Quinn,
and town of Barnstable.

2 Justice Wolohojian participated in the deliberation on
this case and authored this opinion while an Associate Justice
of this court, prior to her appointment as an Associate Justice
of the Supreme Judicial Court.
2

WOLOHOJIAN, J. On November 6, 2017, the plaintiff was

terminated by the town of Barnstable (town) from her employment

as a janitor. Not long thereafter, on December 29, 2017, she

and her husband filed a joint petition in the United States

Bankruptcy Court for the District of Massachusetts (bankruptcy

court) pursuant to Chapter 13 of the United States Bankruptcy

Code, seeking relief in the form of a payment plan for their

home mortgage to forestall foreclosure. Neither the plaintiff

nor her husband, who were both represented by counsel in the

bankruptcy court (bankruptcy counsel), identified or disclosed

that she had any claims or potential claims arising from her

employment or termination among their assets.

On October 17, 2019, the plaintiff, represented by her

present counsel (plaintiff's counsel), filed this suit (Superior

Court case) against the defendants alleging, among other things,

sexual harassment, a sexually hostile work environment, and

retaliatory discharge.3 The Superior Court case proceeded for

approximately three years until December 2022, when the

defendants' counsel discovered that the plaintiff had never

3 The complaint asserted: (1) sexual harassment against
Crocker, Jackson, Deegan, DeRosa, and Quinn, in violation of
G. L. c. 214, § 1C; (2) civil conspiracy, against the same
defendants; (3) tortious interference with economic relations
against Quinn; (4) a sexually hostile work environment against
the town, in violation of G. L. c. 151B, § 4 (16A); and (5)
retaliatory discharge against the town, in violation of G. L.
c. 151B, § 4 (4).
3

disclosed to the bankruptcy court this suit or the claims

asserted in it. The defendants' counsel notified the

plaintiff's counsel of the omission at the end of December 2022.

Subsequently, on February 2, 2023, the defendants served on the

plaintiff's counsel a motion for judgment on the pleadings,

arguing that the failure to disclose the claims in the

bankruptcy court judicially estopped the plaintiff from pursuing

them in the Superior Court case.

On February 15, 2023 -- after the motion for judgment on

the pleadings had been served, but before it was filed -- the

plaintiff and her husband filed in the bankruptcy case a motion

for leave to amend their bankruptcy filings in order to disclose

the pendency of the Superior Court case, the nature of the

claims, the court in which the claims were pending, and the

docket number. That motion was allowed the same day by the

bankruptcy court judge. Also on that day, the plaintiff and her

husband filed an application to have the plaintiff's counsel be

appointed to pursue on behalf of the bankruptcy estate the

claims asserted in the Superior Court case. In addition, the

plaintiff served on the defendants' counsel her opposition to

the motion for judgment on the pleadings, which was supported by

an affidavit from the plaintiff's counsel in which he averred:

- he had not been aware of the bankruptcy action prior to
being notified of it by the defendants' counsel at the
end of December 2022;
4

- similarly, bankruptcy counsel had not been aware of the
Superior Court case until notified by the plaintiff's
counsel;

- the motion to amend the schedule of assets had been
allowed by a judge of the bankruptcy court; and

- the motion to employ the plaintiff's counsel to pursue
the Superior Court case on behalf of the bankruptcy
estate was pending in the bankruptcy court.

Despite these developments, on February 27, 2023, the

defendants pressed ahead and filed with the Superior Court their

motion for judgment on the pleadings, together with supporting

materials and the plaintiff's opposition, including the

affidavit we have just summarized.4

On March 8, 2023, the bankruptcy court judge allowed the

plaintiff's application to appoint the plaintiff's counsel to

pursue the Superior Court claims on behalf of the bankruptcy

estate, finding that no objections to the application had been

filed and that good cause had been shown. This development does

4 At the same time as their motion for judgment on the
pleadings, the defendants filed, in the alternative, a motion
for reconsideration in part of the denial of a motion for
summary judgment they had filed earlier in the litigation.
Because the judge allowed the motion for judgment on the
pleadings, he denied the motion for partial reconsideration as
moot. The defendants and the plaintiff both ask that, should we
reverse the ruling on the motion for judgment on the pleadings,
as we do, we reach the merits of the motion for partial
reconsideration. It is not for us, however, to rule on the
merits of the motion in the first instance. On remand, the
judge may consider the motion on the merits.
5

not appear to have been relayed by either side to the Superior

Court.5

On May 10, 2023, without hearing,6 a Superior Court judge

allowed the motion for judgment on the pleadings on the ground

that the plaintiff was judicially estopped from pursuing her

claims because they had not been timely disclosed in the

bankruptcy case. The Superior Court judge believed that the

plaintiff had benefited by the delayed disclosure because the

bankruptcy court had confirmed the plaintiff's and her husband's

payment plans during the period of nondisclosure. The judge did

not take into account that the bankruptcy court judge later

accepted the amended schedule disclosing the claims. Nor did

the judge take into account that the bankruptcy court judge had

appointed the plaintiff's counsel to pursue the claims for the

benefit of the bankruptcy estate.7 Instead, the judge relied

5 As the proponents of the motion, the defendants had an
obligation to bring this relevant information to the judge's
attention. At the same time, the plaintiff's counsel had an
obligation to bring forward the same information because it was
helpful to his client. We do not attempt to weigh which side
fell further short of its obligations. It is enough to say that
neither side served the case well by failing to bring all
pertinent information to the attention of the Superior Court
judge.

6 The judge's memorandum of decision and order states that
no hearing was conducted because neither party requested one and
the judge did not think one was necessary.

7 A motion for judgment on the pleadings is ordinarily
confined to the well-pleaded factual averments contained in the
6

solely on the fact that the information had not been timely

disclosed. The judge's ruling on the motion for judgment on the

pleadings is now before us.

"[T]wo fundamental elements are widely recognized as

comprising the core of a claim of judicial estoppel. First, the

position being asserted in the litigation must be directly

inconsistent, meaning mutually exclusive of, the position

asserted in a prior proceeding. . . . Second, the party must

have succeeded in convincing the court to accept its prior

position." Holland v. Kantrovitz & Kantrovitz LLP, 92 Mass.

App. Ct. 66, 74 (2017), quoting Otis v. Arabella Mut. Ins. Co.,

443 Mass. 634, 640-641 (2005). "Notwithstanding that general

articulation of the doctrine, there may arise certain instances

where the party's prior position was asserted in good faith, and

where the circumstances provide a legitimate reason -- other

than sheer tactical gain -- for the subsequent change in that

pleadings, see Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974),
and we take those facts in the light most favorable to the
plaintiff. See Jarosz v. Palmer, 436 Mass. 526, 529-530 (2002);
Bonafini v. G6 Hospitality Prop., LLC, 101 Mass. App. Ct. 612,
613 n.4 (2022). In ruling on a motion for judgment on the
pleadings, a judge may also take judicial notice of court
records in a related case. See Jarosz, supra at 530. Here, the
judge looked outside the pleadings and took judicial notice of
some of the bankruptcy court filings. However, once the judge
chose to do so, he should have taken steps (such as inquiring of
the parties at a hearing, or checking the bankruptcy court
docket) to ensure that the matters of which the judge wished to
take judicial notice were accurate and up to date.
7

party's position." Otis, supra at 642. The purpose of the

doctrine is "to safeguard the integrity of the courts by

preventing parties from improperly manipulating the machinery of

the judicial system" (citation omitted). Id. "[T]he doctrine

is not susceptible of an exhaustive formula for determining

[its] applicability, and the Supreme Judicial Court has

decline[d] to construct a categorical list of requirements or to

delineate each and every possible exception" (quotations and

citations omitted). Spinosa v. Tufts, 98 Mass. App. Ct. 1, 6

(2020).

In order to understand the application of the doctrine in

this case, we begin by briefly summarizing the relevant aspects

of a Chapter 13 bankruptcy proceeding.

An "individual with regular income," 11 U.S.C. § 109(e),

with exceptions not relevant here, i.e., one "whose income is

sufficiently stable and regular to enable such individual to

make payments under a plan," 11 U.S.C. § 101(30), may seek

protection under Chapter 13 of the Bankruptcy Code. A debtor

seeking protection under Chapter 13 must submit, among other

things, a schedule of assets and liabilities. See 11 U.S.C.

§ 521(a)(1)(B)(i); Fed. R. Bankr. P. 1007(b)(1)(A). The debtor

must also file a plan showing how creditors will be repaid over

time from future income. See 11 U.S.C. §§ 1321, 1322. If a

judge of the bankruptcy court is persuaded that the plan
8

satisfies the requirements of the Bankruptcy Code and meets

other conditions, the judge then will confirm the plan. See 11

U.S.C. § 1325. "The provisions of a confirmed plan bind the

debtor and each creditor," 11 U.S.C. § 1327(a), which means,

among other things, that the debtor must make payments to the

bankruptcy trustee in the amounts and frequency required by the

plan. "At any time after confirmation of the plan but before

the completion of payments," the plan may be modified to

increase or reduce the payments, or to extend or shorten the

repayment period. 11 U.S.C. § 1329(a). After the debtor has

completed all required payments, and the debtor has certified

that all amounts due have been paid, the "[bankruptcy] court

shall grant the debtor a discharge of all debts provided for by

the plan." 11 U.S.C. § 1328(a).

As noted above, the plaintiff and her husband filed a

petition for relief under Chapter 13. In addition to filing the

petition and a proposed payment plan, they also filed a schedule

of assets and liabilities in which they responded "no" when

asked to identify

"[c]laims against third parties, whether or not you have
filed a lawsuit or made a demand for payment

Examples: Accidents, employment disputes, insurance
claims, or rights to sue."

Official Bankruptcy Form 106A/B, Schedule A/B: Property. The

bankruptcy court confirmed a payment plan on October 12, 2018,
9

and later, after several proposed amended plans were filed,

confirmed another plan on January 20, 2021. The Superior Court

claims were not disclosed to the bankruptcy court as of either

of the confirmation dates.

Both sides in this case agree that the plaintiff and her

husband should have disclosed the claims once the Superior Court

case was filed in October 2019. See Holland, 92 Mass. App. Ct.

at 70-71. See also Guay v. Burack, 677 F.3d 10, 19 (1st Cir.

2012). That said, the plaintiff and her husband disclosed the

Superior Court claims while (1) the bankruptcy proceeding

remained open, (2) the plaintiff and her husband continued to

make the required payments under the plans, and (3) no discharge

had yet entered. Moreover, the bankruptcy court accepted the

plaintiff's and her husband's amended schedule disclosing

(albeit belatedly) the Superior Court claims, and allowed their

request to have the plaintiff's counsel pursue the claims for

the benefit of the bankruptcy estate.

The question here is not solely whether the Superior Court

claims should have been disclosed in the bankruptcy (they should

have been), or whether they were timely disclosed (they were

not). Rather, the question is whether the judge abused his

discretion in concluding that the plaintiff should be judicially

estopped from pursuing her Superior Court claims in order to

safeguard the integrity of the bankruptcy proceeding. See Otis,
10

443 Mass. at 642. Given that the bankruptcy proceeding remained

open, the plaintiff and her husband continued to make payments

under the approved plans, the debts had not been discharged, the

bankruptcy court judge had allowed the plaintiff's and her

husband's belated amended disclosure of assets, and the

bankruptcy court judge had appointed the plaintiff's counsel to

pursue the Superior Court claims for the benefit of the

bankruptcy estate, we conclude that he did. See Spinosa, 98

Mass. App. Ct. at 6 (judicial estoppel not applied where

unnecessary to safeguard integrity of courts). It fell outside

the range of reasonable alternatives for the judge not to

consider the bankruptcy court judge's own treatment of the

belated disclosure when determining whether the integrity of the

bankruptcy proceeding had been compromised by the belated

disclosure. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

In reaching that conclusion, we are persuaded by the United

States Court of Appeals for the Eleventh Circuit's en banc

opinion in Slater v. United States Steel Corp., 871 F.3d 1174

(11th Cir. 2017). Like that court,

"We see no good reason why, when determining whether a
debtor intended to manipulate the judicial system, a
[trial] court should not consider the bankruptcy court's
treatment of the nondisclosure. We reject the idea that
encouraging a [trial] court to blind itself to subsequent
proceedings in the bankruptcy court, particularly the
bankruptcy court's decision about whether to allow the
11

debtor to amend [her] disclosures or reopen [her]
bankruptcy case, better protects the bankruptcy system."

Id. at 1187. Once a debtor has amended the debtor's bankruptcy

court filings to reflect the existence of the claim,

"the application of judicial estoppel poses a potential
risk of harm to innocent creditors. When a civil claim is
dismissed on the basis of judicial estoppel, the asset
becomes worthless -- losing any potential to increase the
value of the bankruptcy estate -- which in turn harms
creditors. It is easy to see why in Chapter 7 proceedings:
the trustee is responsible for liquidating the assets in
the estate and then distributing the proceeds to creditors.
When the civil claim is dismissed, there can be no proceeds
from a recovery or settlement for distribution to
creditors.

"Although not as apparent for Chapter 13 proceedings, a
risk remains that the dismissal will harm creditors. The
amount of proceeds that creditors receive in a Chapter 13
bankruptcy is dictated by the confirmed plan, and a
debtor's payments under the plan are generally based upon
the debtor's expected future earnings. But a plan can be
confirmed only if the payments to the creditors are either
equal to or exceed what the creditors would have received
in a Chapter 7 bankruptcy, meaning that the value of a
civil claim is taken into account in formulating and
reviewing the plan. If the debtor, trustee, creditors, and
bankruptcy court know that a civil claim is likely to be
dismissed based on judicial estoppel, they are likely to
treat the claim as worthless, depriving the bankruptcy
estate of what (absent judicial estoppel) might have been a
valuable asset. Because the application of judicial
estoppel may harm innocent creditors, equitable principles
dictate that courts proceed with care and consider all the
relevant circumstances." (Citations and footnote omitted.)

Id. at 1188. See In re Parker, U.S. Ct. App., No. 18-30378 (5th

Cir. Jan. 8, 2020) (no judicial estoppel where bankruptcy court

allowed previously undisclosed claim to be pursued by debtor for

benefit of creditors).
12

The Superior Court judge found persuasive an unpublished

decision from the Seventh Circuit, Williams vs. Hainje, U.S. Ct.

App., No. 09-3772 (7th Cir. May 14, 2010). However, that case

involved materially different circumstances, most notably that

the bankruptcy proceeding was dismissed without an amended

schedule of assets ever having been filed or accepted by the

bankruptcy judge, let alone with the judge having allowed the

debtor to pursue the claim on behalf of the bankruptcy estate.

The cases to which the defendants point are similarly factually

dissimilar.8 See In re Residential Capital, LLC, 519 B.R. 606,

610-612 (S.D.N.Y. 2014) (bankruptcy dismissed without filing or

acceptance of correct disclosure or allowance of pursuit of

claim). See also Jethroe v. Omnova Solutions, Inc., 412 F.3d

598, 599-600 (5th Cir. 2005) (same); Hamilton v. State Farm Fire

& Cas. Co., 270 F.3d 778, 784-785 (9th Cir. 2001) (same); Kunica

v. St. Jean Fin., Inc., 233 B.R. 46, 57-59 (S.D.N.Y. 1999)

(same).

Finally, we note that the defendants have not identified

any harm flowing from the delayed disclosure of the Superior

Court claims -- either to themselves, the creditors in the

bankruptcy, to the bankruptcy trustee, to the bankruptcy court,

8 The defendants' reliance on Casanova vs. PRE Solutions,
Inc., U.S. Ct. App., No. 06-12417 (11th Cir. Mar. 28, 2007), is
particularly infirm because that case was decided under a legal
standard that was overruled by Slater, 871 F.3d at 1189.
13

or to the Superior Court. Moreover, as we have already stated,

the bankruptcy court judge has appointed the plaintiff's counsel

to pursue the Superior Court claims for the benefit of the

bankruptcy estate. In these circumstances, although we do not

endorse the belated disclosure of the claims in the bankruptcy

action, especially considering that the plaintiff was

represented by counsel in both actions, the judge abused his

discretion in judicially estopping the plaintiff from pursuing

her Superior Court claims.

The judgment on the pleadings is reversed, and the case is

remanded for further proceedings consistent with this opinion.

So ordered.