United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT
AND RECOMMENDATION ON RECONSIDERATION, DENYING
DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS,
REJECTING AS MOOT THE PREVIOUS REPORT AND RECOMMENDATION AND
H. LIPMAN UNITED STATES DISTRICT JUDGE.
December 8, 2015, Plaintiff Stephanie Gamble filed her
pro se Complaint against Defendants Sitel Operating
Corporation (“Sitel”) and Meredith Ashley Farmer,
alleging discrimination in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq., and disability discrimination
in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12112. (Compl., ECF No.
1.) Plaintiff amended her Complaint on May 19, 2016, adding
claims for breach of contract and negligence. (Am. Compl.,
ECF No. 14.) On August 22, 2016, the Court adopted the Chief
Magistrate Judge's Report and Recommendation (ECF No.
17), and dismissed Plaintiff's claims against Sitel for
breach of contract, negligence, Title VII gender
discrimination and ADA disability discrimination, and
dismissed all claims against Ms. Farmer. (ECF No. 19.)
Plaintiff's ADA claims against Sitel for failure to
accommodate and for retaliation remain. (Id.)
November 13, 2016, Sitel filed a Motion for Judgment on the
Pleadings under Federal Rule of Civil Procedure 12(c),
seeking to dismiss Plaintiff's remaining claims for lack
of jurisdiction, failure to join an indispensable party and
judicial estoppel. (ECF No. 45.) On January 11, 2017, the
Chief Magistrate Judge issued a Report and Recommendation
(“R&R”), recommending that the Court dismiss
this matter for lack of jurisdiction because Plaintiff had no
standing to bring the case based on her Chapter 13 bankruptcy
proceeding pending in the United States Bankruptcy Court for
the Western District of Tennessee. (ECF No. 56.) Then, on
March 7, 2017, after Plaintiff presented evidence that the
Bankruptcy Court had allowed the trustee to abandon
Plaintiff's employment discrimination claim against
Sitel, the Court referred the R&R on the Motion for
Judgment on the Pleadings back to the Chief Magistrate Judge
for reconsideration of that issue and the remaining issues.
(See ECF No. 60.)
on March 16, 2017, the Chief Magistrate Judge issued a Report
and Recommendation on Reconsideration of the Defendant's
Motion for Judgment on the Pleadings (“R&R on
Reconsideration”), recommending that the Court deny
Sitel's Motion for Judgment on the Pleadings based on its
findings that the trustee was no longer a necessary party. In
addition, the R&R on Reconsideration concluded that
Plaintiff has standing and that the circumstances do not
warrant judicial estoppel. (ECF No. 61.) On March 29, 2017,
Sitel filed objections to the R&R, contending that the
recommendation of the denial of its Motion to Dismiss under
the theory of judicial estoppel should be without prejudice
and seeking clarification from the Court as to whether this
Court is the proper forum for Plaintiff's claims. (ECF
No. 63.) Plaintiff did not respond to Sitel's objections.
reasons herein, the Court ADOPTS IN PART AND MODIFIES IN PART
the R&R on Reconsideration, and the previous R&R is
REJECTED AS MOOT. Further, the Court LIFTS the stay
previously entered in this matter.
magistrate judge may submit to a judge of the court proposed
findings of fact and recommendations for the disposition of a
motion to dismiss. 28 U.S.C. § 636(b)(1)(B). “A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28
U.S.C. 262(b)(1)(C); Thomas v. Arn, 474 U.S. 140,
149 (1985). After reviewing the evidence, the court may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. 28 U.S.C.
§ 636(b)(1)(C). The district court need not review
findings that are not objected to under a de novo or
any other standard. Thomas, 474 U.S. at 150.
reviewing a motion for judgment on the pleadings, courts
“must construe the complaint in a light most favorable
to the plaintiff, accept all factual allegations as true and
determine whether the complaint states a plausible claim for
relief.” Albrecht v. Treon, 617 F.3d 890, 893
(6th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S.
662 (2009) (internal citations and quotations omitted)). A
motion for judgment on the pleadings should be granted if,
taking “all well-pleaded material allegations of the
pleadings of the opposing party . . . as true, ” the
“moving party is nevertheless clearly entitled to
judgment.” Warrior Sports, Inc. v. Nat'l
Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th
Cir. 2010) (quoting JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 581 (6th Cir. 2007).
reconsideration of the R&R, the Chief Magistrate Judge
found that, because the Bankruptcy Court allowed the trustee
to abandon Plaintiff's employment discrimination claim
against Sitel, Plaintiff need not join the trustee as a
party, and, additionally, Plaintiff has standing to pursue
her claims against Sitel here. (See ECF No. 61 at
3-4.) Further, the Chief Magistrate Judge rejected
Sitel's judicial estoppel theory, concluding that, based
on Plaintiff's averments, she was not aware that she
needed to include her claims against Sitel in her bankruptcy
estate. (Id. at 4-7.) Sitel does not object to the
Chief Magistrate Judge's conclusion that the Court should
deny its Motion. However, Sitel argues that the Court's
denial of its motion under a judicial estoppel theory should
be without prejudice.
Sitel does not object to the findings by the Chief Magistrate
Judge that Plaintiff has standing and has not failed to join
a necessary party, the Court need only review the issue of
whether Sitel's arguments under the theory of judicial
estoppel should be dismissed with or without prejudice. There
is no specific finding as to this issue in the R&R, and
Plaintiff did not respond to Sitel's objections. Sitel
contends that the Chief Magistrate Judge relied on unsworn
assertions by Plaintiff in finding that Plaintiff was not
aware that this matter should have been part of her
bankruptcy case. (Def.'s Objections, ECF No. 63 at 1-2.)
Consequently, Sitel argues that it should be given “the
opportunity to explore the veracity of these statements in
discovery” such that it may be permitted to raise the
theory of judicial estoppel again in its dispositive motion.
Court agrees with Sitel. See In re Martin, 2011 WL
6032835 (N.D. Ohio Dec. 5, 2011) (denying motion to dismiss
without prejudice to assert judicial estoppel defense again
in a different procedural context). In the course of
discovery, should Sitel discover evidence disputing
Plaintiff's claim that she was unaware that the claim
should have been part of the bankruptcy case, Sitel may
re-raise the issue in a dispositive motion.
Chief Magistrate Judge also recommended that the Court lift
the stay that was issued in this case. Sitel did not object
to this recommendation. The stay was entered because of the
pending jurisdictional ...