Submitted November 22, 2013 [*] San Francisco, California
Amended January 15, 2014
Appeal from the United States District Court for the Northern District of California Paul S. Grewal, Magistrate Judge, Presiding D.C. No. 5:10-cv-05462-PSG
Jeanine G. Strong, Carmel, California, for Plaintiff-Appellant.
Stuart F. Delery, Assistant Attorney General, Melinda Haag, United States Attorney, and Mark B. Stern and Melissa N. Patterson, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for Defendant-Appellee.
Before: Michael Daly Hawkins, Susan P. Graber, and Morgan Christen, Circuit Judges.
The panel affirmed the district court's dismissal, based on judicial estoppel, of plaintiff's employment discrimination action.
Plaintiff had filed for Chapter 7 bankruptcy protection, and failed to list this employment discrimination action on her bankruptcy schedules. The panel held that the district court applied the correct legal rule, properly weighed the factors set forth in New Hampshire v. Maine, 532 U.S. 742 (2001), and did not otherwise err in concluding that plaintiff's omission on her bankruptcy schedule was neither inadvertent nor mistaken, and that therefore judicial estoppel barred this action.
The opinion filed on December 11, 2013, and published at 737 F.3d 633, is amended by the opinion filed concurrently with this order, as follows:
At slip opinion page 3, 737 F.3d at 634, in the first paragraph, insert the following after "potential asset.":
After Plaintiff added this action to the schedules, the bankruptcy court discharged her debts and closed the case.1
1 Plaintiff argued before the district court that, by operation of 11 U.S.C. § 554(c), this claim was abandoned to her when the bankruptcy court closed the case, and ...