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Cotita v. Wireless

United States District Court, W.D. Kentucky

September 18, 2014


Decided Date: September 18, 2014

Page 715

For Keller Cotita, Plaintiff: John S. Friend, Robert W. Bishop, LEAD ATTORNEYS, Bishop Friend, PSC, Louisville, KY.

For Verizon Wireless, Defendant: Bonnie L. Martin, Stacey A. Huse, LEAD ATTORNEYS, Ogletree, Deakins, Nash, Smoak & Stewart, PC - Indianapolis, Indianapolis, IN.

Page 716


John G. Heyburn II, Senior United States District Judge.

This matter is before the Court on Defendant Verizon Wireless's motion to dismiss Plaintiff Keller Cotita's employment-related suit on the grounds tat Cotita is judicially estopped from asserting claims that he did not disclose during a prior bankruptcy proceeding. The Sixth Circuit has a clear standard for applying judicial estoppel, but the circumstances here present a close call. After careful consideration, the Court concludes that judicial estoppel applies and Plaintiff's claims should be dismissed.


The facts are straightforward. In March 2009 Cotita filed a Chapter 13 bankruptcy in the United States Bankruptcy Court for the Western District of Louisiana. He submitted a plan and began making payments thereunder in April 2009. The plan obligated Cotita to pay $75/month over the course of 60 months (ending April 2014), or pay a 100% dividend to all general unsecured creditors who filed claims, whichever occurred earlier. The plan was confirmed in July 2009. It is unclear when Cotita completed payments, but he completed them in less than 60 months, at least by January 3, 2014,[1] and the final decree for his discharge was entered on April 7, 2014.

Meanwhile, Cotita moved to Kentucky. In November 2010, he became employed with Verizon in Clarksville, Indiana. Then, in October 2012, he reported perceived commissions fraud by certain co-workers to Verizon's ethics board. After a " shocking" end-of-year performance review in February 2013, Cotita called Verizon's

Page 717

hotline to report perceived retaliation for reporting the fraud. He was fired three weeks later. Afterwards, a Verizon employee allegedly made a slanderous comment about why Cotita was no longer with Verizon.[2]

Cotita detailed these events in a letter to Verizon's counsel in September 2013. He demanded a settlement including, among other things, one year's salary, continuation of certain benefits, and reimbursement of legal fees. Rebuffed, Cotita filed suit on December 5, 2013 in Jefferson Circuit Court in Louisville, Kentucky, alleging promissory estoppel, defamation, and sex discrimination.

On November 15, 2013, Cotita, through counsel, filed an " In Compliance Motion for 1328(a) Discharge" in his bankruptcy case. On December 16, 2013--eleven days after Cotita filed suit against Verizon--the bankruptcy court granted a discharge in an order titled " Discharge of Debtor After Completion of Chapter 13 Plan." On January 6, 2014, Eugene Hastings, Cotita's Chapter 13 trustee, filed a " Notice of Plan Completion" and the case was closed. The case was reopened on February 6, 2014 to enter an order approving Trustee's " Notice of Intention to Pay Claim(s) and Disallow Claim(s)," which Hastings had filed in October 2013.

Verizon removed the case to federal court and filed this pending motion to dismiss. Verizon claims that because Cotita never amended his bankruptcy schedules to include his claims and the contingent assets associated with them before receiving a discharge, he is judicially estopped from asserting the claims and damages at issue in this action.


Whether to apply judicial estoppel is a mixed question of fact and law for the Court to consider. As the Supreme Court has observed, " the circumstances under which judicial estoppel may be appropriately invoked are probably not reducible to any general formulation of principle." New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (internal citation omitted).

" When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein." Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). Here, Verizon's motion merely references publicly available documents on the bankruptcy docket. In contrast, Cotita has supplemented his response with an affidavit from Eugene ...

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