The opinion of the court was delivered by: Reagan, District Judge
A. Introduction and Procedural History
In November 2003, while walking to her seat at a concert in the auditorium of Southern Illinois University, Cathryn Jaeger tripped and fell. In June 2005, Jaeger filed suit in the Circuit Court of Madison County, Illinois against Clear Wing Productions, Inc. Jaeger alleged that Clear Wing had operated the lighting and sound equipment for the concert. She further alleged that Clear Wing's negligence (for example, in failing to warn patrons about the dangerous positioning of extension cords and electrical wires on the auditorium floor) had proximately caused her to sustain "severe and disabling injuries" to her back, hips, and arms.
Clear Wing timely removed the case to this United States District Court. On threshold review, after soliciting briefs from counsel, the undersigned Judge determined that subject matter jurisdiction lay under the federal diversity statute, 28 U.S.C. § 1332.
By late August 2005, a Scheduling and Discovery Order had been entered, and the case was given a firm trial date. Jaeger amended her complaint in March 2006 to add a second Defendant -- Event Resources Presents, Inc.*fn1
The amended complaint alleged that Clear Wing (Count I) and Event Resources (Count II) maintained and operated the lighting/sound equipment at the concert, and their negligent acts and omissions resulted in Jaeger's injuries. The Scheduling Order was amended (see Doc. 23), and additional pleadings were filed, including a cross-claim and dismissal motion by Event Resources (see Docs. 27, 28).
In October 2006, the undersigned District Judge denied Event Resources' dismissal motion, filed under Federal Rule of Civil Procedure 12(b)(6). Event Resources had urged dismissal on dual grounds: (1) Jaeger, as a debtor in a Chapter 13 bankruptcy proceeding, lacks standing to pursue this personal injury/negligence action (i.e. as property of the bankruptcy estate, this lawsuit falls within the exclusive province of the bankruptcy trustee); and (2) the failure to timely disclose the existence of this action in the bankruptcy proceeding judicially estops Jaeger from pursuing this action.
But Event Resources had relied on materials outside the pleadings in seeking dismissal, and the Court (unable to consider such material) denied the motion on October 12, 2006 (see Doc. 37).
Four days later, Event Resources moved for summary judgment. That motion has been fulled briefed (see Docs. 38, 41, 43). For the reasons stated below, the Court DENIES the motion for summary judgment.
Summary judgment is appropriate when the record before the Court reveals that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
In assessing such a motion, the Court views the facts in the light most favorable to the non-moving party. However, if the non-moving party fails to establish the existence of an element essential to his case, on which he will bear the burden of proof at trial, Rule 56(c) mandates entry of summary judgment against him, "because a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Cady v. Sheahan, 467 F.3d 1057, 1060-61 (7th Cir. 2006).
In the instant case, at the heart of the parties' dispute lies Cathryn Jaeger's May 2003 voluntary Chapter 13 petition, filed in U.S. Bankruptcy Court for the Southern District of Illinois. Clearly, Jaeger failed to disclose this lawsuit in her initial bankruptcy filings. Section 4 of the Statement of Financial Affairs (Doc. 38, Exh. A, pp. 18-19) directs the debtor to: "List all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case." In response to this question, Jaeger marked "NONE."
But that response, signed by Jaeger under penalty of perjury, is dated May 16, 2003. According to the first amended complaint (Doc. 15), Jaeger was not injured until November 13, 2003. So she could not have disclosed, on the May 2003 voluntary petition, a claim for an injury that had not yet occurred.*fn2
The inquiry does not stop there, though. Jaeger concedes (Doc. 41, p. 4) that she did not disclose the existence of this claim when she modified her Chapter 13 Plan three times after the injury -- on November 20, 2003, November 21, 2003 and December 4, 2003.*fn3
Event Resources maintains that Jaeger had a continuing duty to disclose the existence of potential causes of action, and her failure to disclose this claim in November and December 2003 means that she lacks standing to pursue this claim now or is judicially estopped from pursuing this claim now. Jaeger counters that (a) no such duty exists as to post-petition personal injury causes of action, and (b) her failure "to ...