Commercial Litigation and Arbitration

On-the-Record Statement by Party Declaring in Court That He/She Will Not Bring Civil Action Does Not Judicially Estop Party from Doing So Later

Furey v. Wolfe, 2011 U.S. Dist. LEXIS 148360 (E.D. Pa. Dec. 27, 2011):

This suit arises from the plaintiff's arrest on April 5, 2008. The plaintiff alleges that Police Officer Travis Wolfe, Police Commissioner Charles Ramsey, and the City of Philadelphia Police Department engaged in violations of his constitution rights, assault, and battery. The defendants filed this motion for summary judgment seeking to enforce the plaintiff's statements on November 24, 2008 that in exchange for participation in an Accelerated Rehabilitative Disposition ("ARD") Program, he would not bring any civil suit against Wolfe or the City. ***

C. Judicial Estoppel

The defendants also argue that this Court should decide an issue of first impression, that the plaintiff and his counsel should be estopped from pursuing a civil lawsuit after telling a court that he would not do so.

"Under the doctrine of judicial estoppel, a court can defend the integrity of the judicial process by barring a party from taking contradictory positions during the course of litigation." G-I Holdings, Inc. v. Reliance Insur. Co., 586 F.3d 247, 261 (3d Cir. 2009). Although "there is no rigid test for judicial estoppel, three factors inform a federal court's decision whether to apply it: there must be (1) irreconcilably inconsistent positions; (2) adopted in bad faith; and (3) a showing that estoppel addresses the harm and no lesser sanction is sufficient." Id. at 262 (internal quotations and alterations omitted). [Note: The bad faith requirement is perhaps unique to the Third Circuit and is not generally applied.]

The plaintiff's, and his counsel's, statements on-the-record on November 24, 2008 that he would not file a civil suit is seemingly irreconcilable with the filing of this civil suit. The other two factors are not met.

On the queston of bad faith, the plaintiff contends that it was his belief on November 24, 2008 that the terms provided by the D.A. were only suggestions and not a final agreement. Given this assertion, and the fact that different conditions were in fact agreed to on June 10, 2009, the Court cannot conclude that the plaintiff's November 24, 2008 statements were made "in bad faith, i.e., with the intent to play fast and loose with the court." Montrose Med. Grp. Participating Savings Plan v. Bulger, 243 F.3d 773, 781 (3d Cir. 2001).

In addition, judicial estoppel is an "extraordinary remedy that should be employed only when a party's inconsistent behavior would otherwise result in a miscarriage of justice." Id. at 785. It should only be imposed when no more narrowly tailored sanction is available. Here, the defendants will have the opportunity to use the plaintiff's November 24, 2008 statements before the jury, should the case go to trial.

The defendants rely on Chaffee v. Kraft Gen. Foods, Inc., 886 F. Supp. 1164 (D.N.J. 1995) to support their argument for judicial estoppel. In that case, a district court refused to allow a plaintiff to pursue wage reimbursement from an employer when he had previously represented to a sentencing court that his sentence should be reduced because he "lost" those wages. In that case, however, the court held that the plaintiff was not entitled to those wages under the unambiguous terms of his employment contract. Id. at 1170-71. No such independent reason for granting summary judgment in favor of the defendant exists here.

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