Opinion
No. 4:04-CV-314-A.
August 23, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendants, EFW, Inc., and Jim McAllister, to dismiss. The court, having considered the motion, the response of plaintiffs, Mollie A. Griffin ("Griffin") and Carey D. Ebert, trustee of the bankruptcy estate of Mollie A. Griffin, ("Ebert"), the reply, the record, and applicable authorities, finds that the motion should be granted.
The claims before the court in this action were first brought before the court in Civil Action No. 4:03-CV-1337-A (the "prior action"). The prior action was commenced on October 3, 2003, when Griffin filed her original petition in the 48th Judicial District Court of Tarrant County, Texas, and was brought before this court by notice of removal filed November 10, 2003. In that action, Griffin asserted claims against defendants under the Family Medical Leave Act, 29 U.S.C. §§ 2601-54 ("FMLA"). Defendants there filed a motion to dismiss for lack of subject matter jurisdiction, asserting that Griffin lacked standing to pursue the claims asserted because they were not disclosed in her bankruptcy proceeding. (On August 8, 2002, Griffin had filed a voluntary petition under Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division, Cause No. 02-45941-BJH (the "bankruptcy case").) Griffin never disclosed in her bankruptcy schedules or amended schedules that she had any claims against defendants. On December 16, 2002, Griffin received her discharge in bankruptcy on the basis of her estate having no assets.
In the prior action, the court granted a stay and gave Griffin an opportunity to seek leave of the bankruptcy court to proceed with the claims or to substitute the bankruptcy trustee or other person who would proceed with the claims. On February 12, 2004, Griffin filed documents in the prior action, including a ratification by Ebert stating that she agreed to be bound by the judgment entered in that case "subject, however, to entry of appropriate orders by the bankruptcy court." See 3/4/04 Mem. Op. Order in No. 4:03-CV-1337-A at 3. Thereafter, Griffin filed a further notice advising the court that her motion to reopen the bankruptcy case had been dismissed, because her bankruptcy attorney did not attend the hearing he himself had set.
As the court noted in the prior action: Griffin admitted that she knew of her FMLA claim prior to the time she filed her petition in bankruptcy; that the claim should have been listed on the bankruptcy schedules; that Griffin informed her bankruptcy attorney of the claim; and, that her bankruptcy attorney made the decision not to list the claim, although it should have been listed. Id. at 4-5. The court further found that there was no honest and understandable mistake, but rather a conscious concealment. Id. at 6. In sum, the court determined that Griffin lacked standing to pursue the claim and that she would be judicially estopped in any event, because of her failure to disclose the claim in her bankruptcy case. Id. Inasmuch as Ebert had made no effort to participate in prosecution of the prior action, the court concluded that defendants' motion to dismiss should be granted and granted the motion. Id. at 6-7.
Defendants now urge that plaintiffs are barred from proceeding with this action in light of the rulings in the prior action. The court agrees. The issue actually litigated in the prior action was whether Griffin should be allowed to proceed with the FMLA claim. Because that issue was actually tried, it cannot be relitigated here. See Harley v. Minnesota Mining Mfg. Co., 284 F.3d 901, 909 (8th Cir. 2002); Perry v. Sheahan, 222 F.3d 309, 317-18 (7th Cir. 2000). Plaintiffs have not alleged any change in circumstances that would cause the court to revisit the issue here, much less to change its ruling.
The court notes that, even if Griffin would not be foreclosed by judicial estoppel from pursuing her equitable claim for reinstatement, see Barger v. City of Cartersville, 348 F.3d 1289, 1297 (11th Cir. 2003), that claim is barred by res judicata. If the claim truly belonged to her, and not her bankruptcy estate, Griffin should have urged that issue in the prior action. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).
Finally, the court notes that Ebert is named in the original complaint in this action only as a nominal party. There is no allegation in the complaint that Ebert has standing, i.e., that she has any claim or the right to assert any claim against defendants. It appears that Ebert was joined in order to allow Griffin to prosecute the action. However, for the reasons previously discussed, Griffin cannot pursue the claims in this action. Accordingly, the court is dismissing the action as to Ebert as well.
That Griffin is prosecuting the claims for her own benefit and not the benefit of her creditors is plain from the language of the complaint as well as the objection of the United States trustee to Griffin's motion to reopen her bankruptcy case. Defs.' App. at 79-80.
The court ORDERS that defendants' motion to dismiss be, and is hereby, granted, and that plaintiffs' claims in this action be, and are hereby, dismissed with prejudice.