United States District Court, D. Hawaii
MICHAEL A. FREITAS, RICHARD K. BURGO, MICHAEL A. ANCHETA, Plaintiffs,
MCCABE, HAMILTON & RENNY CO., LTD. Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AS TO ALL CLAIMS BROUGHT BY PLAINTIFF MICHAEL A.
C. KAY, SR. UNITED STATES DISTRICT JUDGE
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
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
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. 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.
Court held a hearing on Defendant MHR's Motion on May 21,
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.
Freitas filed a chapter 13 bankruptcy petition on September
1, 2014. 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.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
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.
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
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. 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.
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
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).
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)).
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.
Doctrine of ...