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Freitas v. McCabe, Hamilton & Renny, Co., Ltd.

United States District Court, D. Hawaii

May 23, 2019




         For the reasons discussed below, Defendant McCabe, Hamilton & Renny Co., Ltd.'s Motion for Summary Judgment as to the claims brought by Plaintiff Michael A. Freitas is hereby DENIED.


         On July 24, 2017, Plaintiffs Michael A. Freitas (“Plaintiff Freitas”), Richard K. Burgo, and Michael A. Ancheta (collectively, “Plaintiffs”) filed a Complaint against Defendant McCabe, Hamilton & Renny Co., Ltd. (“Defendant MHR”). ECF No. 1. The Complaint alleges that Defendant MHR, Plaintiffs' former employer, did not select Plaintiffs for promotion and ultimately terminated them because of their ages in violation of the Age Discrimination in Employment Act of 1967, and in retaliation for opposing the alleged discrimination. Complaint ¶¶ 45-53.

         On February 26, 2019, Defendant MHR filed a Motion for Summary Judgment (“Motion”) together with a Memorandum in Support of Motion (“Memorandum”) and Concise Statement of Facts (“Def. CSF”) in support of its Motion.[1] ECF Nos. 43, 43-1, and 44. The Motion addresses only Plaintiff Freitas's claims. See Motion. On April 30, 2019, Plaintiff Freitas filed a Memorandum in Opposition to Defendant MHR's Motion (“Opposition”) together with a Concise Statement of Facts in Opposition (“Pl. CSF”). ECF Nos. 62 and 63. Defendant MHR filed its Reply on May 7, 2019. ECF No. 67.

         The Court held a hearing on Defendant MHR's Motion on May 21, 2019.


         Defendant MHR argues that Plaintiff Freitas is judicially estopped from pursuing his claims because he failed to disclose those claims in an earlier chapter 13 bankruptcy proceeding. Memorandum at 1. Accordingly, the Court addresses only those facts relevant to the instant Motion.

         Plaintiff Freitas filed a chapter 13 bankruptcy petition on September 1, 2014.[2] Def. CSF ¶ 1; Declaration of Christopher Yeh (“Yeh Decl.”) ¶ 2, ECF No. 44-1; Exh. 1, ECF No. 44-2. On December 15, 2014, the bankruptcy court issued an Order Confirming Chapter 13 Plan. Def. CSF ¶ 3; Yeh Decl. ¶ 3; Exh. 2, ECF No. 44-3. Defendant MHR terminated Plaintiff Freitas from employment on July 12, 2016. Def. CSF ¶ 4; Compl. ¶ 8. On September 7, 2016, Plaintiff Freitas filed charges with the Hawai`i Civil Rights Commission and the Equal Employment Opportunity Commission alleging that Defendant MHR discriminated against him.[3]Reply at 5; Exh. 7, Deposition of Michael A. Freitas (“Freitas Depo.”) at 110:5-23, ECF No. 67-2. Plaintiff Freitas was not represented by counsel at the time he filed these charges. Freitas Depo. at 111:17-25, 112:1-2.

         On June 13, 2017, Plaintiff Freitas filed a Motion to Modify Confirmed Plan in the bankruptcy court seeking a reduction in monthly plan payments because he had obtained a home loan modification. Def. CSF ¶ 5; Yeh Decl. ¶ 5; Exh. 3, ECF No. 44-4. This motion itself did not require Plaintiff Freitas to file amended bankruptcy schedules. See 11 U.S.C. § 1329(a). On July 24, 2017, Plaintiffs filed the Complaint in this action. See Complaint. On August 11, 2017, the bankruptcy court issued an Order Granting Motion to Modify Confirmed Plan, which included a reduction of total plan funding. Def. CSF ¶ 6; Yeh Decl. ¶ 5; Exh. 4, ECF No. 44-5.

         Plaintiff Freitas failed to make payments on his chapter 13 plan, so the bankruptcy court issued an Order Dismissing Chapter 13 Case on January 29, 2019. Def. CSF ¶ 8; Yeh Decl. ¶ 4; Exh. 5, ECF No. 44-6. At no point after Plaintiff Freitas was terminated in July 2016 did he amend his bankruptcy schedules to reflect his claims against Defendant MHR. Def. CSF ¶ 8; Yeh Decl. ¶ 4; Exh. 6, ECF No. 44-7. Plaintiff Freitas's CSF does not oppose any of the aforesaid facts as set out in Defendant MHR's CSF, so those facts are deemed admitted. See L.R. 56.1(g) (“material facts set forth in the moving party's concise statement will be deemed admitted unless controverted by a separate concise statement of the opposing party”).

         Defendant MHR filed the instant Motion on February 26, 2019. See Motion. Thereafter, Plaintiff Freitas was informed by his attorney, Charles H. Brower, that he was required to disclose his claims against Defendant MHR to the bankruptcy court. Pl. CSF ¶ 1, Declaration of Michael A. Freitas (“Freitas Decl.”) ¶ 12. ECF No. 63-1. Accordingly, Plaintiff Freitas filed a second chapter 13 petition on March 20, 2019, this time listing his lawsuit against Defendant MHR as an asset on his Schedule A/B form.[4] Pl. CSF ¶ 1; Freitas Decl. ¶ 13; see also Notice of Filing of Bankruptcy Petition by Plaintiff Michael A. Freitas (“Bankruptcy Notice”), ECF No. 61, Exh. B at 5, ECF No. 61-2. The bankruptcy court confirmed Plaintiff Freitas's second chapter 13 plan on May 16, 2019. In re Michael A. Freitas, No. 19-00341, Dkt. No. 23. Plaintiff Freitas asserts he was unaware of his duty to amend his initial chapter 13 plan to disclose his claims against Defendant MHR during the pendency of that bankruptcy. Pl. Decl. ¶ 10.


         Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal., 192 F.3d 1252, 1258 (9th Cir. 1999).

         “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has carried its burden under Rule 56[(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere allegations or denials of his pleading” in opposing summary judgment).

         “An issue is ‘genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material' only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at 248). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor” (internal citation and quotation omitted)).


         Defendant MHR argues that Plaintiff Freitas is judicially estopped from pursuing his discrimination and retaliation claims because he failed to disclose those claims to the bankruptcy court.

         I. Doctrine of ...

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