Trial Practice and Procedure - John O'shea Sullivan and Ashby L. Kent

• Publication year: 2005

Trial Practice and Procedureby John O'Shea Sullivan^* and Ashby L. Kent^**

I. Introduction

The 2004 survey period yielded several noteworthy decisions relating to federal trial practice and procedure, many of which concerned issues of first impression in the Eleventh Circuit Court of Appeals. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of evidence, civil procedure, statutory interpretation, jurisdiction, as well as other issues of interest to the trial practitioner.

II. Judicial Estoppel/Standing

In Parker v. Wendy's International, Inc.,¹ plaintiff/debtor Vickie Parker ("Parker") filed an employment discrimination action against Wendy's International, Inc. ("Wendy's") before filing a petition for relief under Chapter 7 of the Bankruptcy Code.² The Chapter 7 Bankruptcy Trustee, Thomas E. Reynolds (the "Trustee"), intervened in Parker's employment discrimination action. The schedules in the bankruptcy case did not list Parker's claim against Wendy's as an asset, and the bankruptcy court granted Parker a "no asset" discharge. The Trustee later learned Parker had failed to disclose her discrimination claims to the bankruptcy court, and he moved to reopen the bankruptcy case to allow for further administration of the bankruptcy assets. The bankruptcy court granted the motion, and the Trustee moved to intervene in the discrimination case or, alternatively, for substitution as the real party in interest. The district court granted the motion to intervene.³

Wendy's then moved to dismiss Parker's discrimination claims, arguing that the claims were barred by judicial estoppel because Parker failed to disclose the claims in the bankruptcy proceeding.⁴ Relying on the Eleventh Circuit's reasoning in Burnes v. Pemco Aeroplex, Inc.,⁵ Wendy's argued that Parker was judicially estopped from bringing her discrimination claims, because if she had scheduled the claims as assets she would not have been entitled to the "no asset" discharge of her debts.⁶ In Burnes the court determined that a debtor was judicially estopped from bringing employment discrimination claims because the debtor had failed to disclose the claims in a concurrent bankruptcy proceeding.⁷ Addressing what was then an issue of first impression in the Eleventh Circuit, the court set forth a two-prong test for determining appropriate application of judicial estoppel: "[f]irst, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system."⁸ Finding Parker's case to be "factually and procedurally indistinguishable" from Burnes, the district court held that Parker was judicially estopped from bringing her discrimination claims and dismissed her complaint with prejudice.⁹

The Trustee then moved for reconsideration, arguing that Parker's case was distinguishable from Burnes and that imposing judicial estoppel would not only result in an injustice to Parker's innocent creditors, who would be denied the possibility of any recovery, but would also grant a windfall to Wendy's by allowing it to escape liability at the creditors' expense. The district court denied the motion, finding that the distinctions between Parker's case and Burnes were not determinative. The court concluded that judicial estoppel was appropriately applied to Parker, who remained a party to the discrimination action, because she was asserting claims that were inconsistent with her positions in the bankruptcy proceeding.¹⁰

On appeal the Trustee conceded that Parker took inconsistent positions in the bankruptcy court and district court, but he argued that Parker's inconsistent statements should not be attributed to him because he did not know of the discrimination claims during the bankruptcy proceedings, and therefore, did not take inconsistent positions in the two courts. Further, he claimed that even if judicial estoppel would otherwise bar Parker, it should not bar him, as Trustee, from pursuing these claims on behalf of Parker's creditors.¹¹

Deciding that the Trustee could pursue Parker's discrimination claims, the Eleventh Circuit—in a surprising twist—held that "[t]he correct analysis here compels the conclusion that judicial estoppel should not be applied at all," and that the question was more appropriately resolved under a standing analysis.¹² Citing Section 541 of the Bankruptcy Code,¹³ the court held that a pre-petition cause of action is property of the Chapter 7 bankruptcy estate, and therefore, the Trustee is the proper party in interest and is the only party with standing to prosecute causes of action belonging to the estate.¹⁴ Without expressly overruling Burnes, the court questioned whether the court in Burnes had correctly applied judicial estoppel.¹⁵ Because the Trustee became the real party in interest and the claims became an asset of the bankruptcy estate when Parker filed her petition for the discrimination suit, the court reversed the district court's judgment because the district court improperly invoked judicial estoppel and the Trustee had standing.¹⁶

III. Civil Procedure/Evidence

A. The Foundation for Lay Opinion Testimony about the Genuineness of Handwriting Evidence Under Federal Rules of Evidence 901(b)(2) and 701

In Hall v. United Insurance Co.,¹⁷ the Eleventh Circuit addressed the "interplay" between Federal Rule of Evidence 901(b)(2) ("Rule 901(b)-(2)"),¹⁸ which allows nonexpert opinion testimony about the genuineness of handwriting evidence based on sufficient familiarity, and Federal Rule of Evidence 701 ("Rule 701"),¹⁹ which allows lay opinion testimony that is rationally based on personal perceptions and restricts admissible lay testimony.²⁰ Plaintiff Odessa Dee Hall ("Hall") filed an affidavit stating that a signature on a document purporting to cancel an insurance policy issued by defendant, United Insurance Company of America ("United"), was not authentic. Hall made a claim for benefits under the policy in her capacity as personal representative of the beneficiary's estate. However, United produced a "Waiver of Premium" form, which the policyholder ("signatory") purportedly signed, that terminated the policy.²¹ Hall claimed, inter alia, that the signature on the document purporting to cancel the policy was not the signatory's, and she submitted an affidavit stating that:

Over the course of time that I knew [the signatory], [more than thirty years,] I became familiar with his handwriting. I saw him write, received correspondence from him and helped him review documents which he executed in my presence. I have examined the purported signatures of [the signatory appearing on the purported cancellation] . . . and they do not appear to be his handwriting.²²

The district court struck the affidavit under Rule 901(b)(2) because it provided insufficient foundation detailing how Hall had become familiar with the handwriting. Specifically, because Hall could not demonstrate sufficient familiarity with the signatory's handwriting, the district court held that Hall's opinion testimony was not rationally based on her own perceptions and did not satisfy Rule 701.²³

The Eleventh Circuit affirmed the decision, noting that "[w]e have not previously had occasion to detail the necessary foundation a lay person must establish under Rules 901(b)(2) and 701 in order to testify concerning handwriting."²⁴ Looking to sister circuits for guidance on how a witness can demonstrate familiarity with disputed handwriting, the Eleventh Circuit concluded:

While witnessing the disputed signature is not required, we conclude that the lay witness must provide more detailed information regarding any "correspondence," "documents," or the like, relied upon to establish familiarity. Such instruments must be identified with particularity. Moreover, the lay witness must provide detailed information regarding his or her relationship with the signatory—whether it be familial, professional, or otherwise personal.²⁵

Hall's affidavit did not provide "detailed information" about the instruments Hall relied upon to become familiar with the signatory's handwriting or about Hall's relationship with the signatory. Hall's affidavit merely stated that she became familiar with the signatory's handwriting over time because she had seen him write, she had received correspondence from him, and she had seen him execute documents in her presence. Because Hall's affidavit did not provide details about how she was familiar with the signatory's handwriting or her relationship with the signatory, her lay opinion was inadmissible.²⁶

B. The Applicability of Federal Rule of Civil Procedure 6(a) to the Notice Requirements of the Clean Water Act

In American Canoe Ass'n v. City of Attalla,²⁷ the Eleventh Circuit affirmed the district court's dismissal of plaintiffs' private citizen suit under the Federal Water Pollution Control Act ("Clean Water Act" or "CWA").²⁸ The sole issue on appeal was whether Federal Rule of Civil Procedure 6(a)'s²⁹ rules on computation of time applied to CWA 505(b)(l)'s notice requirements.³⁰ Section 505(b)(1) provides a sixty-day period after notice of a claimed violation of the CWA during which private citizens must refrain from suit and during which the Government has an exclusive right to initiate suit.³¹ The district court, concluding that Rule 6(a) governs the computation of the sixty-day notice period under Sec. 505(b)(1), found that plaintiffs' suit, filed on the sixty-first day, was prematurely filed because the sixtieth day, a Sunday, did not count.³²

Arguing against application of Rule 6(a), plaintiffs first asserted that Rule 6(a) applied only when a paper must be filed or some other act taken within a prescribed time. Because plaintiffs were not required to do anything within the sixty-day period, they argued that Rule 6(a) should not apply and that there was no...