United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
DISMISS COMPLAINT (#33).
Page Kelley United States Magistrate Judge.
Solomon Nwachukwu brings this employment discrimination
lawsuit against defendant Vinfen Corporation, alleging he was
fired because of his race, color, and national origin.
See #26 ¶¶ 5, 14, 16. During the pendency
of this case, plaintiff has filed for bankruptcy twice, and
did not initially disclose this lawsuit in either filing. As
a result, defendant filed a motion to dismiss this case on
the grounds of judicial estoppel and lack of standing.
(#33.) After defendant moved to dismiss,
plaintiff amended his bankruptcy schedule to include this
lawsuit as a potential asset. The bankruptcy court accepted
the belated disclosure. Judicial estoppel does not apply to
the present facts, and defendant's motion to dismiss on
the grounds of judicial estoppel is denied. Questions
regarding plaintiff's standing remain, therefore
defendant's motion on these grounds is denied without
prejudice and the bankruptcy trustee is given time to appear.
worked as a Nurse Coordinator for defendant from March 2010
to March 2011. (#26 ¶¶ 5, 14.) After his
termination, plaintiff filed an MCAD complaint. Id.
¶ 4. Plaintiff filed his first complaint in this
employment discrimination action pro se in Massachusetts
state court on May 10, 2016, and defendant removed it to this
court on September 6, 2016. (#1.) Now represented by counsel,
plaintiff amended his complaint in this case on January 16,
2017. (#26.) Plaintiff alleges in Counts I-III of his amended
complaint that the termination of his employment violated
Title VII of the Civil Rights Act of 1964 because plaintiff
was fired due to his race, color and national origin (#26
¶ 16), there was a hostile work environment,
id. ¶ 20, and plaintiff did not receive
compensation and other related reimbursements for his work,
id. ¶ 24.
submitted a petition for bankruptcy, pro se, on May 8, 2017,
which was dismissed by the bankruptcy court. Order of
Dismissal (#42), In Re Solomon C. Nwachukwu, No.
17-11700-FJB (Bankr. D. Mass. June 21, 2017.). Plaintiff filed a
second voluntary bankruptcy petition in August 2017,
represented by counsel, in a case that is still pending.
Chapter 13 Petition (#1), In Re Solomon Nwachukwu,
No. 17-12868-FJB (Bankr. D. Mass. Aug. 1,
2017). It is undisputed that plaintiff did not
initially disclose the employment discrimination matter, as
required, in either bankruptcy filing.
moved to dismiss this case, based on arguments arising out of
plaintiff's bankruptcy filings, on September 21, 2017.
(##33, 34.) After receiving the motion to dismiss, plaintiff
amended his bankruptcy schedule A/B and his statement of
financial affairs with the bankruptcy court on October 20,
2017. See ##29, 31 In Re Solomon Nwachukwu,
No. 17-12868-FJB. No objection by the trustee to
plaintiff's having filed an amended Schedule A/B is
reflected on the bankruptcy court docket. A meeting of
creditors was held on October 24, 2017. Id. #61 at
1. On October 25, 2017, the bankruptcy trustee objected to
confirmation of plaintiff's Chapter 13 bankruptcy plan,
stating in pertinent part:
On October 20, 2017, the Debtor filed an Amended Schedule B.
On line #34, the Debtor lists a possible employment
discrimination and termination claim against a former
employer for an unknown amount. There is no provision in the
Plan that states any nonexempt proceeds will be paid to the
unsecured creditors. The Plan does not satisfy the best
interest of creditors test set forth in 11 U.S.C. sec
Id. #32 at 1. The trustee repeated the objection in
her March 6, 2018 Objection to Confirmation of Debtor's
Amended Chapter 13 Plan, stating again that plaintiff's
proposed bankruptcy plan did not include a provision for
“any non-exempt proceeds” from the
“employment discrimination and termination claim”
to “be paid to the unsecured creditors” and
adding that “[t]he Liquidation Analysis fails to list
the potential employment discrimination claim and fails to
state that non-exempt proceeds will be turned over to the
Trustee for payment to creditors.” Id. #61 at
1, 2. The trustee moved to dismiss the case on the same date.
does not bring this motion to dismiss under any particular
rule. See ##33, 34. The equitable doctrine of
judicial estoppel is generally considered an affirmative
defense. See Payless Wholesale Distributors, Inc. v.
Alberto Culver (P.R.) Inc., 989 F.2d 570, 571 (1st Cir.
1993); see also Sutliffe v. Epping Sch. Dist., 627
F.Supp.2d 41, 44 (D.N.H. 2008), aff'd, 584 F.3d
314 (1st Cir. 2009) (“Although res judicata, collateral
and judicial estoppel, and the statute of limitations are
affirmative defenses, they may be adjudicated on a motion to
dismiss under Rule 12(b)(6).”) (footnote and citations
omitted). Affirmative defenses may form the bases for motions
to dismiss. Greene v. Rhode Island, 398 F.3d 45,
48-49 (1st Cir. 2005); see also Payless
Wholesale, 989 F.2d at 571 (“The court should
have recognized the defense of judicial estoppel and
dismissed the complaint at the outset.”). The 12(b)(6)
standard for failure to state a claim upon which relief can
be granted applies to motions to dismiss on the basis of
affirmative defenses. Sutliffe, 627 F.Supp.2d at 44:
Consistent with Rule 12(b)(6) standards, however, dismissal
can occur only when facts that “conclusively establish
the affirmative defense” are “definitively
ascertainable from the allegations of the complaint, the
documents (if any) incorporated therein, matters of public
record, or other matters of which the court may take judicial
notice, ” including the records of prior judicial
In re Colonial Mtg. Bankers Corp, 324 F.3d 12, 16
(1st Cir. 2003)); see also Greene, 398
F.3d 45 at 48-49 (describing same standard). The court must,
therefore, determine whether facts establishing judicial
estoppel may be gleaned from the complaint and records of the
motion to dismiss based on lack of standing may be evaluated
under 12(b)(1) if it relates to constitutional Article III
standing, or 12(b)(6) if it relates to prudential/statutory
standing. See Katz v. Pershing, LLC, 806 F.Supp.2d