United States District Court, D. Utah, Central Division
B. Pead Magistrate Judge
parties consented to the court's jurisdiction under 28
U.S.C. 636(c). (ECF No. 12.) Plaintiff asserts four causes of
action in this diversity matter: fraud, breach of contract,
breach of the covenant of good faith and fair dealing, and
unjust enrichment. (ECF No. 2.) Plaintiff claims that he and
Mr. Griffee made an agreement in 2005 and 2006 that forms the
basis of his present claims. As part of that agreement,
Plaintiff purchased two pieces of real estate and Mr. Griffee
agreed to collect rents from tenants and apply those rent
payments to mortgages secured by the properties and to
home-owner association dues. (Id.) Plaintiff claims
Mr. Griffee performed for a time under the unwritten
agreement, but in 2011, Plaintiff alleges M r. G r i ff ee
began to misappropriate rent payments without satisfying the
mortgages and dues. (See id.) The matter is
presently before the court on Defendants' motion to
dismiss. (ECF No. 6.)
complaint must contain “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court
accepts factual allegations “as true and construe[s]
those allegations, and any reasonable inferences that might
be drawn from them” in a plaintiff's favor.
Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.
2002). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Nonetheless, conclusory
allegations without supporting factual allegations are
insufficient to state a claim for relief. See Id.
(“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
argue Plaintiff's claims should be dismissed because the
claims belong not to Plaintiff, but to his bankruptcy estate.
Further, Defendants suggest the claims should be dismissed on
the grounds of judicial estoppel because Plaintiff failed to
disclose the present causes of action during his bankruptcy
argues that he and his bankruptcy counsel notified the
bankruptcy trustee of the facts Plaintiff then knew about
potential claims against Defendant. (ECF No. 14.) Plaintiff
does not claim he listed any claims against Defendants in his
bankruptcy petition. Plaintiff claims instead that he
informed the trustee of the potential claims and thus the
trustee has abandoned those claims by not asserting them
during the pendency of the bankruptcy action. (Id.)
Defendants' motion to dismiss cannot be granted at this
stage of the proceedings.
argument that Plaintiff no longer owns the claim raises
questions that cannot be answered from the face of the
pleadings. While a debtor's property becomes part of the
bankruptcy estate when bankruptcy is filed, the property does
not remain there for eternity. The trustee is ordinarily
considered to have abandoned property not administered during
the pendency of the bankruptcy. See In re Krachun,
No. AP 15-2016, 2015 WL 4910241, at *4 (Bankr. D. Utah Aug.
14, 2015) (setting forth process by which trustee may be
found to have technically abandoned property not administered
during bankruptcy proceedings). On the limited record here,
the court cannot determine who owns the claims. Defendants
believe this gap in the record mandates dismissal of the
Complaint. The court disagrees. Defendants do not show that
Plaintiff failed to properly plead his claims. At best,
Defendants establish Plaintiff omitted sufficient facts to
support Defendants' affirmative defense. Yet Plaintiff
need not plead all facts relevant to an affirmative defense
to survive a motion to dismiss. See, e.g.,
Turner & Boisseau, Inc. v. Nationwide Mut. Ins.
Co., 944 F.Supp. 842, 847 (D. Kan. 1996) (denying motion
to dismiss asserting statute-of-limitations defense where
complaint did not set forth accrual date of claim). The court
is unsurprised the Complaint omits facts about
Plaintiff's bankruptcy proceeding because those facts
relate to Defendants' affirmative defense, not
the court will not grant dismissal based on Defendants'
estoppel argument at this early stage. Defendants rely on
Eastman v. Union Pacific to support their estoppel
argument. 493 F.3d 1151 (10th Cir. 2007). In
Eastman, the Tenth Circuit affirmed a district
court's application of judicial estoppel to a
post-bankruptcy claim where plaintiff/debtor concealed a
cause of action during his bankruptcy proceeding and later
sought to pursue that claim in the district court. See
Id. at 1153-54, 1160. Yet, in doing so, the
Eastman court considered the debtor's testimony
from the § 341 meeting of creditors. See at
1153-54. Here, Plaintiff suggests his testimony in his own
§ 341 meeting of creditors will show he disclosed Mr.
Griffee's identity and what Plaintiff then knew about his
claims, unlike the Eastman plaintiff. (ECF No. 14.)
Defendants ask the court to ignore any questions Plaintiff
raises about the bankruptcy proceeding because those
questions cannot be answered from the facts alleged in the
four corners of the Complaint. As mentioned above, the court
does not find Plaintiff's Complaint deficient simply
because it omits facts relevant to Defendants'
affirmative defense. Defendants' estoppel argument raises
questions that cannot be answered without considering further
evidence. See Eastman at 1159 (stating that
“debtors, who have failed to disclose legal claims to
the bankruptcy court without credible evidence of why
they did so, have been judicially estopped from pursuing
such claims subsequent to discharge”) (emphasis added).
Thus, dismissal is not presently warranted.
“it may be appropriate to resist application
of judicial estoppel when a party's prior position was
based on inadvertence or mistake.” Eastman at
1157 (emphasis original). The Eastman court cited
with approval a Sixth Circuit case in which the court upheld
a finding of mistake or inadvertence where a debtor omitted a
cause of action from his bankruptcy schedule but the debtor
later disclosed the claim in correspondence with the trustee.
Here, Plaintiff claims to have done something similar.
Plaintiff claims his former attorney notified the trustee of
potential claims against Defendant. Ultimately, the court
makes no comment or ...