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Robin Aikens v. Soul Circus

June 24, 2011


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiff Robin Aikens ("Ms. Aikens") alleges that on September 28, 2007, while she was attending a circus owned and operated by Defendant Soul Circus, Inc. ("Soul Circus"), the chair upon which she was seated broke. According to Ms. Aikens, she fell forward, scraping her legs on a metal bar, striking her forehead and shoulder on the ground, and twisting her neck and lower back. Almost two years later, on September 17, 2009, Ms. Aikens filed a personal injury claim against Soul Circus in Cook County. In her complaint, she alleged that Soul Circus's negligent acts had caused her permanent injury.

About a month later, Soul Circus removed the case to federal court. See 28 U.S.C. § 1332. Thereafter, Soul Circus discovered that Ms. Aiken had filed a Chapter 13 bankruptcy petition in the Northern District of Illinois (Case No. 07-16963) on September 18, 2007-just ten days prior to the date of her alleged injury. Ms. Aikens' personal injury claim was never disclosed to the bankruptcy court, and the bankruptcy was dismissed on April 1, 2010 due to Ms. Aikens' failure to make the required payments under her reorganization plan.

Soul Circus now moves for judgment on the pleadings under Fed. R. Civ. P. 12(c), alleging that Ms. Aikens lacks standing to pursue her personal injury claim; in the alternative, Soul Circus claims that Ms. Aikens is judicially estopped from pursuing that claim due to her failure to amend her bankruptcy schedule. Because Ms. Aikens has standing, but resolution of the remaining issues is not appropriate at this stage in the proceedings, the court denies the motion.


A.Standard of Review

In evaluating a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), the court employs the "same standard that applies when reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). Thus, the court must view the facts alleged in the complaint "in the light most favorable to the nonmoving party and will grant the motion 'only if it appears beyond doubt that the plaintiff cannot prove any facts that would support [her] claim for relief.'" Id. (quoting N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 499, 452 (7th Cir. 1998)). The court should not ignore those facts set forth in the complaint that "undermine the plaintiff's claim," nor should the court "give weight to unsupported conclusions of law." Id. Although the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), the factual allegations set forth therein "must be enough to raise a right to relief above the speculative level." Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (quotation marks omitted)).


1. Standing

Soul Circus argues that under 11 U.S.C. § 541(a)(7), a bankruptcy estate includes any property interest acquired after the commencement of the case. Soul Circus then cites an Eleventh Circuit case involving a Chapter 7 bankruptcy for two propositions: first, that Ms. Aiken had an obligation to amend her bankruptcy schedule to reflect her legal claims; and second, that failure to list an asset of the estate in a schedule leaves that asset in the estate, even after the case is closed. (See Mot. for Judgment at 3 (citing Parker v. Wendy's Int'l, Inc. 365 F.3d 1268 (11th Cir. 2004).) Notably, Soul Circus cites nothing in its opening brief in support of its argument that Ms. Aikens lacks standing to pursue her personal injury claim. In its reply brief, Soul Circus's position finally comes to light. There, it argues that a Chapter 13 debtor has standing to bring suit only for the benefit of the bankruptcy estate. Since Ms. Aikens' bankruptcy proceedings were dismissed, Soul Circus argues she no longer has standing to assert claims on her own.*fn1

It is axiomatic in this circuit that "perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived." Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) (internal quotation marks omitted); see United States v. Giovannetti, 919 F.2d 1223, 1230 (7th Cir. 1990) ("A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is a good point despite a lack of supporting authority or in the face of contrary authority, forfeits the point."). The same is generally true of arguments raised for the first time on reply. Luellen v. City of East Chi., 350 F.3d 604, 612 n.4 (7th Cir. 2003). Fortunately for Soul Circus, it is also "well settled that standing is not subject to waiver or forfeiture." Freedom from Religion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008); see FW/PBS, Inc. v. City of Dall., 493 U.S. 215, 230-31 (1990) ("The federal courts are under an independent obligation to examine their own jurisdiction."). Consequently, the court will forge ahead, albeit with little help from the parties.

As the Seventh Circuit discussed in detail in Cable v. Ivy Tech State College, 200 F.3d 467, 472-74 (7th Cir. 1999), there are a number of key differences between a Chapter 7 bankruptcy and a Chapter 13 bankruptcy. For instance, under Chapter 7 the trustee has sole authority to dispose of estate property; this includes managing any litigation relating to the estate. See id. at 472. By contrast, with limited exceptions a Chapter 13 debtor retains possession of the property of the estate, see 11 U.S.C. § 1306, and retains authority to "commence and prosecute any action or proceeding in [sic] behalf of the estate before any tribunal." Fed. R. Bankr. P. 6009; see Cable, 200 F.3d at 472.

The "property" of a Chapter 13 estate includes the property specified in 11 U.S.C. § 541, as well as any property "that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted . . . ." 11 U.S.C. § 1306(a)(1). Therefore, while Ms. Aikens had no personal injury claim on the day she filed bankruptcy-the claim likely accrued ten days later, on the day she alleges that she was injured, see Golla v. General Motors Corp., 167 Ill. 2d 353, 360 (1995)-the claim became the property of the estate by operation of § 1306, at least while her bankruptcy case was still pending.*fn2

The Bankruptcy Code also states that "[e]xcept as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor. . . . free and clear of any claim or interest of any creditor provided for by the plan." 11 U.S.C. § 1327(b)--(c). Courts have struggled to reconcile this "vesting" of estate property in the debtor under § 1327 with § 1306, which states that any property acquired post-petition belongs to the estate. See, e.g.,Russell G. Donaldson, Annotation, Continued existence of Bankruptcy Code Chapter 13 estate after confirmation of the Chapter 13 plan, 126 A.L.R. Fed. 665 (1995). Here, however, the confirmation order expressly provided that the property of the estate "continue[d] to be property of the estate following confirmation." (See Order Confirming Chapter 13 Plan, Case No. 07 B 16963, ECF No. 14.) Therefore, Ms. Aikens' personal injury claim became part of the Chapter 13 estate, and she had a duty to disclose the existence of that property to the bankruptcy court. ...

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