The opinion of the court was delivered by: Judge Holschuh
MEMORANDUM OPINION & ORDER
Plaintiff Phillip Salyer filed suit against Defendant Honda of America Manufacturing, Inc. ("HAM"), alleging that HAM terminated his employment in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Plaintiff also asserted supplemental state law claims arising out of his termination. This matter is before the Court on HAM's motion for summary judgment on grounds of judicial estoppel. (Record at 26). HAM argues that because Salyer failed to disclose the existence of this suit in his Chapter 13 bankruptcy proceedings, the doctrine of judicial estoppel bars his claims. For the reasons set forth below, the Court grants HAM's motion.
I. Factual Background and Procedural History
Phillip Salyer worked as a Production Associate at HAM's Marysville facility from 1997 until April 21, 2004, when he was terminated for excessive absences. (Compl. at ¶¶ 6, 10-11). This lawsuit arises out of his termination. The facts relevant to the pending motion are undisputed.
Over the past few years, Salyer and his wife, Holly, have jointly filed two Chapter 13 bankruptcy petitions in the United States Bankruptcy Court for the Southern District of Ohio. The first was filed on August 8, 2003. Jeffery M. Kellner was appointed as trustee. (Kellner Aff. ¶¶ 1-2; Ex. A to Def.'s Mot. Summ. J.). A repayment plan was confirmed on November 19, 2003. Salyer was terminated the following April. On August 31, 2004, the Bankruptcy Court agreed to modify the payment plan based on Salyer's loss of employment. (Exs. 2 and 3 to Fusonie Aff.; Ex. 2 to Def.'s Mot. Summ. J.).
On October 13, 2004, Salyer filed this lawsuit against HAM, asserting claims of FMLA violations, retaliation for filing a workers' compensation claim, employer intentional tort, and wrongful discharge in violation of Ohio's public policy. Salyer did not tell Gary Reeve, the attorney who filed suit on his behalf, about his pending bankruptcy proceedings. Likewise, he did not tell John Cannizzaro, his bankruptcy attorney, or Kellner, the bankruptcy trustee, about his suit against HAM and made no effort to supplement his schedule of assets and liabilities or his Statement of Financial Affairs. According to Salyer, he did not disclose the lawsuit because his bankruptcy case was in the process of being dismissed. (Salyer Aff. ¶ 2; Ex. to Pl.'s Mem. in Opp'n).
On December 10, 2004, HAM filed a motion for summary judgment on the FMLA claim and motion for judgment on the pleadings as to the state law claims. On January 3, 2005, Kellner moved to dismiss the first bankruptcy case based on Salyer's failure to make the required payments; the motion was granted on February 9, 2005. (Ex. 1 to Kellner Aff.).
On February 2, 2005, Salyer and HAM agreed to stay all discovery pending resolution of HAM's motion for summary judgment and motion for judgment on the pleadings. Reeve explained to Salyer that the case was "'on hold' for an indefinite period of time" and that there was a possibility that the court would dismiss his case as a result of HAM's motion. (Reeve Aff. ¶ 3; Ex. to Pl.'s Mem. in Opp'n).
On April 25, 2005, while HAM's motion was still pending, Salyer and his wife filed their second Chapter 13 bankruptcy petition. Kellner was again appointed as trustee. (Kellner Aff. ¶¶ 1,4). In the petition, Salyer represented, under penalty of perjury, that he had no "contingent and unliquidated claims." (Ex. 5 to Fusonie Aff.). The accompanying "Statement of Financial Affairs" asked him to "list all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case." (Ex. 6 to Fusonie Aff.) (emphasis in original). Salyer, again under penalty of perjury, disclosed a collection proceeding and a foreclosure proceeding, but did not list his pending lawsuit against HAM. (Id.). According to Salyer, he did not include it because he understood "that the case was inactive and possibly . . . would not continue at all." (Salyer Aff. ¶ 5).
On May 31, 2005, Trustee Kellner conducted an oral examination of Salyer, under oath, regarding the information contained in the bankruptcy petition documents. (Kellner Aff. ¶ 4; Ex. 3 to Kellner Aff.). Salyer testified that the documents were accurate. (Kellner Aff. ¶ 6). Trustee Kellner specifically asked Salyer if he had spoken to any attorney other than his bankruptcy attorney in the preceding twelve months. Salyer testified that he met with another attorney in Cannizzaro's firm about a workers' compensation issue. (Id.). Salyer, however, said nothing about his pending lawsuit against HAM. (Id. at ¶ 7). According to Salyer, he did not mention his communications with Gary Reeve because he "interpreted the question to be directed at active legal claims that were being pursued on my behalf" and the suit against HAM was inactive at that point. (Salyer Aff. ¶ 6). The Bankruptcy Court approved Salyer's repayment plan on August 19, 2005. (Kellner Aff. ¶ 8; Ex. 5 to Kellner Aff.).
On September 23, 2005, this Court issued an order granting in part and denying in part HAM's motion for summary judgment and motion for judgment on the pleadings. Still, Salyer made no effort to disclose the existence of the lawsuit to Cannizzaro or to the bankruptcy court. On December 19, 2005, when attorney Reeve met with Salyer to discuss responses to a discovery question concerning other court cases in which he was involved, Salyer finally disclosed to Reeve that he and his wife were parties in a bankruptcy proceeding. Reeve then contacted Cannizzaro about being appointed to represent Salyer in the instant action. (Reeve Aff. ¶¶ 4-5; Salyer Aff. ¶ 8). Cannizzaro submitted an application to Trustee Kellner but Kellner sent it back, explaining that it needed to be submitted directly to the bankruptcy court instead. (Kellner Aff. ¶ 9). On December 27, 2005, the bankruptcy court entered an agreed order placing the Salyers on payment probation. On February 13, 2006, the bankruptcy court dismissed Salyer's second bankruptcy case.
On April 19, 2006, HAM moved for summary judgment on grounds of judicial estoppel. HAM argues that because Salyer failed to disclose his claims against HAM in his bankruptcy ...