The opinion of the court was delivered by: Judge George M. Marovich
MEMORANDUM OPINION AND ORDER
Plaintiff Cornelious Williams ("Williams") filed a complaint against defendant Airborne Express Inc. ("Airborne Express") alleging that it terminated his employment on the basis of his race in violation of Title VII of the Civil Rights Act of 1964. Airborne Express now moves for summary judgment based on the principle of judicial estoppel. For the reasons set out below, the Court denies the motion.
Unless otherwise noted, the following facts are undisputed.*fn1
Williams once worked as a part-time driver for Airborne Express, which delivers freight. On January 14, 2003, Airborne Express terminated Williams's employment. On April 13, 2005, Williams filed his complaint in this case.
Four months after Williams filed this case, he filed a Voluntary Petition for Bankruptcy under Chapter 13 of the United States Bankruptcy Code. As part of the petition, Williams was asked to list and value "contingent and unliquidated claims of every nature," and Williams answered "none." Williams was also asked to list "all suits and proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case." Williams listed a foreclosure claim but failed to list this case. Williams attested, under penalty of perjury, that the statements made in his bankruptcy petition were true and correct.
According to the undisputed evidence put forth by the plaintiff, he did not know that he had to list this lawsuit on his bankruptcy filing. Williams met with his bankruptcy attorney once and signed the petition before his attorney filled it out.*fn2
The Court takes judicial notice of the fact that on October 20, 2006, the trustee filed a motion to dismiss Williams' bankruptcy case. In the motion to dismiss, the trustee argued that Williams "failed" to "commence making timely plan payments" and "caused an unreasonable delay that is prejudicial to creditors." The bankruptcy judge granted the motion and dismissed Williams' bankruptcy case on October 28, 2005 without ever confirming the Chapter 13 Plan.
It is also undisputed that Airborne Express learned during discovery that Williams had failed to disclose this suit in connection with his bankruptcy filing. Airborne Express now asks the Court to apply judicial estoppel and grant summary judgment in its favor.
II. Summary Judgment Standard
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When making such a determination, the Court must construe the evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is appropriate, however, when the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Defendant argues that Williams should be judicially estopped from pursuing his employment discrimination claim against it because Williams failed to list the claim in his bankruptcy petition. Judicial estoppel is "intended to protect the courts from the litigatory shenanigans that would result if parties could, without limitation or consequences, swap litigation positions like hats in successive cases based on simple expediency or self-benefit." Jarrard v. CDI Telecommunications, Inc., 408 F.3d 905, 915 (7th Cir. 2005).
The Seventh Circuit recently reviewed the decision of a district court who applied judicial estoppel against a plaintiff who failed to list his claim on a bankruptcy petition. The Seventh Circuit stated that before a court considers the judicial estoppel issue, it should consider the threshold issue of whether the individual or the trustee is the real party in interest. Biesek v. Soo Line RR Co., __ F.3d __, __, 2006 WL ...