United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE
matter is before the Court on self-represented plaintiff
Terrence Lee's third motion for default judgment pursuant
to Fed.R.Civ.P. 55(b)(2). Doc. 15. For the following reasons,
this motion will be denied.
24, 2019, plaintiff filed this lawsuit against defendant
Walgreens Company (“Walgreens”), using the
Court's pre-printed Employment Discrimination Form. Doc.
1. Plaintiff alleges he was discriminated against on the
basis of race in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 2000e, et
seq. Plaintiff seeks “2 years worth of salary for
severance pay.” Id. at 7.
filed a motion to proceed in forma pauperis, which
the Court granted. Docs. 2, 4. In plaintiff's motion, he
reported “Chapter 13 bankruptcy - $115.00
monthly” as a “debt or financial
obligation.” Doc. 2 at 2.
September 4, 2019, this Court issued an Order stating
defendant Walgreens had been served with summons and
complaint, but failed to timely file an answer or responsive
pleading in this case. Doc. 8. Plaintiff was directed to file
an appropriate motion for entry of default by the Clerk of
Court under Federal Rule of Civil Procedure 55(a). Plaintiff
filed a motion for entry of clerk's default on September
13, 2019 followed by a second, duplicative motion on
September 16, 2019. Docs. 9, 10. On September 19, 2019,
plaintiff's first motion for entry of clerk's default
was granted, and the second motion was denied as moot. Doc.
11. On September 20, 2019, plaintiff filed a motion for
default judgment pursuant to Fed.R.Civ.P. 55(b)(2). Doc. 12.
Court denied plaintiff's motion for default judgment
without prejudice. Doc. 13. The Order stated:
[The Court] will not consider any such motion until it is
satisfied that plaintiff has disclosed the claims in this
lawsuit in his bankruptcy case. See Jones v. Bob Evans
Farms, Inc., 811 F.3d 1030, 1033 (8th Cir. 2016) (party
who filed for bankruptcy may be judicially estopped from
pursuing a claim for monetary damages if he failed to amend
his bankruptcy schedules to include the claims in a pending
lawsuit). This is because a debtor's failure to list an
employment discrimination or other claim in the bankruptcy is
“tantamount to a representation that no such claim
existed.” Stallings v. Hussmann, 447 F.3d
1041, 1047 (8th Cir. 2016).
Therefore, plaintiff will be directed to file documentation
in this matter showing: (1) that he disclosed the claims in
this action to the bankruptcy court before he filed the
instant lawsuit; or (2) that his bankruptcy filings were
amended after this case was filed or are in the process of
being amended to include the claims in this action.
If plaintiff is unable to furnish the required documentation,
this Court may preclude plaintiff from proceeding with this
case and dismiss his claims without prejudice pursuant to the
doctrine of judicial estoppel.
October 3, 2019, plaintiff filed a Response to the Court
Order including “documentation that his bankruptcy
filings were amended after this case was
filed[.]” Doc. 14 at 1 (emphasis added). Plaintiff
attached his Official Form 106A/B Amended Schedule of
Property, signed and dated October 2, 2019, which amended
paragraph 33 of his Chapter 13 bankruptcy schedules to
disclose a pre-petition claim for the instant lawsuit, which
plaintiff's bankruptcy attorney stated was
“inadvertently omitted.” Id. at 9.
estoppel is an equitable doctrine that “prevents a
party from asserting a claim in a legal proceeding that is
inconsistent with a claim taken by that party in a previous
proceeding[.]” New Hampshire v. Maine, 532
U.S. 742, 749 (2001). “A party who has filed for
[Chapter 13] bankruptcy may be judicially estopped from
pursuing a claim not disclosed in his or her bankruptcy
filings.” Jones v. Bob Evans Farms, Inc., 811
F.3d 1030, 1033 (8th Cir. 2016) (citing Stallings,
447 F.3d at 1047). This is because “a Chapter 13 estate
includes not only the property the debtor had at the time of
filing, but also wages and property acquired after filing but
before discharge[, ]” and failure to ...