Anthony Cessario v. Hartford Roman Catholic Diocesan Corporation et al. (2012)

MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (# 123 and # 127)

PROCEDURAL HISTORY

The plaintiff, Anthony Cessario, commenced this action on July 2 and 6, 2010, when process was served on the defendants, the Hartford Roman Catholic Diocesan Corp. (diocese), St. Augustine Church (church) and Daniel McSheffery.   In the thirteen-count complaint, the plaintiff alleges the following relevant facts.   The diocese supervises and/or controls the church, which is a Roman Catholic church located in Hartford, Connecticut.   The diocese assigned McSheffery to serve as a priest and pastor of the church.   During that time, McSheffery resided in the rectory, which is owned by the diocese and supervised by the church.   Both the diocese and the church authorized and encouraged McSheffery to meet with minors to provide them with spiritual instruction, guidance and counsel, and were aware that he was doing so at the rectory.

The plaintiff further alleges the following.   When he was a minor, he sought spiritual advice at the church and spiritual guidance, direction and instruction from McSheffery.   During this time, McSheffery sexually molested the plaintiff, physically assaulted and injured him.   In addition, McSheffery forced the plaintiff to engage in underage drinking and illegal drug use.   As a result of this conduct, the plaintiff suffered numerous injuries, including physical, emotional injuries and monetary losses.   The plaintiff alleges causes of action against the defendants for reckless and negligent battery, reckless and negligent infliction of emotional distress, breach of fiduciary duty, negligence and negligent hiring, retention and supervision.

On June 17, 2011, the Diocesan Corp. and the church (the defendants) filed a motion to dismiss the plaintiff's action on the grounds that the court lacks subject matter jurisdiction over it because the plaintiff did not have standing to bring the action due to his conduct in his bankruptcy proceeding;  and due to that conduct, he is judicially estopped from bringing this action.   The defendants filed a memorandum and numerous documents from the plaintiff's bankruptcy proceeding in support of their motion.   The plaintiff filed objection to the motion on September 27, 2011, to which he attached an order from the Bankruptcy Court.   The defendants filed a reply on October 6, 2011.   On October 7, 2011, the plaintiff filed a motion to substitute the bankruptcy trustee as the plaintiff in the action.   The defendants filed an objection to that motion on October 21, 2011, to which they attached additional documents from the bankruptcy proceeding.

DISCUSSION

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss ․ [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ․ It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Association Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010).

The defendants argue that the plaintiff lacks standing because, in 1996, after his cause of action against them accrued, he filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Connecticut, he did not list the cause of action as an asset from which his creditors could obtain satisfaction of his debts to them, and his debts were discharged in 1997.   Furthermore, the defendants contend that the plaintiff is judicially estopped from maintaining his cause of action due to his failure to list it as an asset in the bankruptcy proceeding.   In the complaint, the plaintiff does not allege the dates on which the defendants allegedly engaged in the conduct that gives rise to his action.   Nevertheless, he does not dispute that the action accrued prior to the time he filed for bankruptcy, or that he did not list this action as a contingent asset therein.   Rather, he maintains that he has standing to bring the action because the Bankruptcy Court explicitly authorized him to do so in an order that it entered on July 13, 2010, which was two days before he filed this action, on July 15, 2010.   In reply, the defendants take issue with the plaintiff's assertion that the order of the Bankruptcy Court can confer subject matter jurisdiction over this court as well as his characterization of the language of the order.   Further, they maintain that the plaintiff commenced this action on July 2, 2010, the date the process was served on them, which was prior to the date of the Bankruptcy Court's order.   Finally, they contend that a jurisdictional defect that is present at the time an action is commenced cannot be cured by an amendment.

The Connecticut Supreme Court discussed the effect of a bankruptcy proceeding on a plaintiff's standing to bring a cause of action in Association Resources, Inc. v. Wall, supra, 298 Conn. 145.   The court explained that “[c]ommencement of a bankruptcy proceeding creates an estate that comprises ‘all legal or equitable interests of the debtor in property as of the commencement of the case.’  11 U.S.C. § 541(a)(1).   The debtor must file a formal statement with the Bankruptcy Court including a schedule of his or her assets and liabilities.   See 11 U.S.C. § 521(A)(1)(B)(I).   The assets, which become the property of the bankruptcy estate, include all causes of action belonging to the debtor that accrued prior to the filing of the bankruptcy petition ․ A cause of action becomes part of the bankruptcy estate even if the debtor fails to schedule the claim in his petition ․ Property that is scheduled pursuant to 11 U.S.C. § 521(1), but not administered by the plan, is abandoned to the debtor by operation of law at the close of the bankruptcy case.   See 11 U.S.C. § 554(c).  By contrast, property that is not formally scheduled is not abandoned and therefore remains part of the estate.   See 11 U.S.C. § 554(d) ․ Courts have held that because ․ unscheduled claim[s] remains the property of the bankruptcy estate, the debtor lacks standing to pursue the claims after emerging from bankruptcy, and the claims must be dismissed.”  (Citations omitted;  internal quotation marks omitted.)   Association Resources, Inc. v. Wall, supra, 298 Conn. 164–65.¹

Because such claims remain part of the estate, they are “under the exclusive control of the bankruptcy trustee.”  (Internal quotation marks omitted.)   Rosado v. GMAC Mortgage Corp., Superior Court, judicial district of New Haven, Docket No. CV 04 4002609 (March 30, 2007, Holden, J.).   Accordingly, they, like other “[a]ctions brought on behalf of a bankruptcy estate must be brought in the name of the trustee as the real party in interest.”  (Internal quotation marks omitted.)  Id.

In the present case, the plaintiff does not dispute the defendants' assertion that his claims against them accrued in the 1970s.   According to the exhibits submitted by the defendants, the plaintiff filed a voluntary petition for bankruptcy under Chapter 7 of the Federal Bankruptcy Code on October 15, 1996, and he did not include his then contingent claims against the defendants on the formal schedule in which he listed his assets.  (Exhibit to Defendants' Motion, pp. 3–7.)   On January 17, 1997, the bankruptcy trustee filed a report in which she stated, in relevant part, that “there is no property available for distribution from the estate over and above that exempted by law or that has been abandoned pursuant to the provisions of 11 U.S.C. Sec. 554 and/or Sec. 725 ․ I hereby certify that the estate of the above-named debtor has been fully administered.”  (Exhibit to Defendants' Motion, p. 2.) On February 24, 1997, the Bankruptcy Court entered an order entitled “Discharge of Debtor,” in which it stated, in relevant part:

IT IS ORDERED THAT:

1.  The above-named debtor is released from all dischargeable debts ․

3.  All creditors whose debts are discharged by this order ․ are enjoined from institution or continuing any action or employing any process or engaging in any act to collect such debts as personal liabilities of the above-named creditor.

(Exhibit to Defendants' Motion, p. 1.)

According to the authority referred to above, when the plaintiff filed his bankruptcy petition in 1996, a bankruptcy estate was created, and his contingent claims against the defendants became the property of the estate, despite the fact that he did not list the claims as assets in the formal schedule.   Because the claims were unscheduled, they were not abandoned back to the plaintiff when the bankruptcy case was closed by being discharged in 1997.   Thus, the trustee, and not the plaintiff, is the real party in interest to the present action, and only the trustee has standing to bring it.

The plaintiff's contention that Bankruptcy Court conferred standing on him to bring the action pursuant to an order that it entered on July 13, 2011, is clearly erroneous.   Without deciding whether an order by a bankruptcy court could confer standing on the plaintiff in these circumstances, the clear language that the court used in the order, as well as the date thereof, are contrary to the plaintiff's characterization of its effect.   Specifically, in the order, the court states that it is approving the application of “Bonnie C. Mangan, Chapter 7 Trustee,” to “retain the law firm of Straton Faxon and participating counsel McNamara & Goodman, LLP as her counsel to prosecute a cause of action relating to priestly abuse, negligence and other claims against [the defendants herein] and to pursue such cause of action in the name of the Debtor, individually, and or the Chapter 7 Trustee ․ (Plaintiff's Objection, Exhibit A.).   Furthermore, this order is dated July 13, 2011, which is seven to ten days after the plaintiff commenced the present action, which occurred on July 2 and 6, 2011.  “[U]nder the law of our state, an action is commenced not when the writ is returned but when it is served upon the defendant.”  (Internal quotation marks omitted.)  Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004).

Pursuant to the above authority, the plaintiff did not have standing to bring the present action as of the date that process was served on the defendants.   Thus, the court is required to grant the defendants' motion to dismiss unless it determines that it can consider and should grant the plaintiff's motion to substitute, which he filed pursuant to General Statutes § 52–109 and Practice Book § 9–20.

General Statutes § 52–109 provides:  “When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.”  Practice Book § 9–20 contains identical language.   In his motion to substitute, the plaintiff asks that he be permitted to substitute the bankruptcy trustee as the plaintiff in the action, if the court determines that he is not the proper party to bring the action.   The defendants object to the motion on the ground that the plaintiff cannot rely on § 52–109 because he continues to insist that he has standing to bring the action, and he cannot show that he mistakenly brought the action in his own name.

The issue implicates the intersection of § 52–109 and what is known as the jurisdiction first rule.   The issue as cogently addressed by a judge of the Superior Court as follows.  “[T]he court must ․ determine whether or not defendants' motion to dismiss precludes the court [from] deciding plaintiff's motion to add parties plaintiff.   The black letter law is that jurisdictional issues must be decided first.   As the Supreme Court said in Federal Deposit Insurance Corp. v. Peabody, N.E., Inc., 239 Conn 93, 99, [680 A.2d 132] (1996), ‘It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court.’  ․ Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one step further in the cause;  as any movement is necessarily the exercise of jurisdiction.' ․

“The rule to decide jurisdictional issues first has a strong conceptual basis and surface appeal.   It appears to make sense that a court must determine its jurisdiction over a matter before it can decide other motions in the case.   If, however, a motion is made to substitute or add a party plaintiff in order to cure the potential jurisdiction defect, the rule starts to lose common sense ․

“Trial court judges are in the front line trenches of the dilemma created by a motion to dismiss followed by a motion to add or substitute a party plaintiff, pursuant to Section 52–109, to cure the jurisdictional defect.   In recent years, fourteen [judges of the] Superior Court have decided not to let the motion to dismiss preclude them from deciding the motion to substitute or add a party plaintiff.

“The leading and best reasoned case is DiLieto v. County Obstetrics & Gynecology Group, P.C., [Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 97 0150435 (January 31, 2000, Sheldon, J.) 26 Conn. L. Rptr. 345].   In that case the defendant moved to dismiss because, prior to filing the suit, plaintiffs had filed a joint petition for bankruptcy.   Defendant claimed the trustee in bankruptcy was the proper party plaintiff.   The plaintiff moved to substitute the trustee as party plaintiff, pursuant to Section 52–109.   The trial court granted the motion.   It reasoned that Section 52–109 is a remedial statute and should be liberally construed, quoting Federal Deposit Insurance Corp. v. Retirement Management Group, Inc., 31 Conn.App., 80, 84 [623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378] (1993), ‘Our rules of practice, however, permit the substitution of parties as the interests of justice require.’   The court further reasoned that an action commenced ‘in the name of the wrong person’ would inexorably establish that the original plaintiff had no standing to prosecute the action.   Since a court, on its own motion, can dismiss an action for lack of jurisdiction, it follows that a court can never decide a motion to substitute plaintiffs because it would first be required to dismiss for lack of subject matter jurisdiction.   That would render Section 52–109 a nullity.

“As Judge Sheldon said, ‘The legislature's provision of this statutory remedy [Section 52–109] would be completely undermined by any rule requiring the immediate dismissal for lack of subject matter jurisdiction of an action commenced in the name of the wrong person as plaintiff.   The statute, as an exercise of the legislature's constitutional authority to determine this court's jurisdiction ․ must be seen as an extension of that jurisdiction for the limited purpose of deciding a proper motion to substitute.’   Thus Judge Sheldon concluded that the court can decide the motion to substitute if the action can be saved from dismissal by so doing.”   Scelza v. Onore, Superior Court, judicial district of Hartford, Docket No. CV 02 0821526 (April 17, 2007, Satter, J.) (43 Conn. L. Rptr. 724, 725–26).

In numerous other decisions, judges of the Superior Court “have ruled on motions to substitute a party plaintiff while a motion to dismiss for lack of subject matter jurisdiction was pending ․ Underlying all of these cases is the trial court's refusal to allow the rule to decide jurisdiction first [to] trump practicality and common sense.   The granting of a motion to dismiss, without first deciding a motion to substitute or add plaintiffs in order to cure the jurisdictional defect, would result in the plaintiff having to start the- action again, serve the defendant, pay the marshal's fee, file the writ in court, and pay the court filing fee.   What a waste.   All this can be avoided by the court granting the motion to substitute party plaintiff and thereby immediately curing the alleged jurisdictional defect.”  (Citations omitted.)   Id., 726.²

Based on this authority, the court may consider the plaintiff's motion to substitute before it decides whether to grant the defendants' motion to dismiss, despite the fact that the defendants' motion was already pending when the plaintiff filed his motion.  “Turning to § 52–109, it provides two criteria for granting a motion to substitute or add a party plaintiff when the action has been commenced in the name of the wrong person as plaintiff:  namely [the court] must be satisfied that the action was commenced through mistake and that deciding the motion is necessary for determination of the real matter in dispute.”  Scelza v. Onore, supra, 43 Conn. L. Rptr. 726.

Turning first to the second element, the issue is whether the substitution of the bankruptcy trustee is “necessary for the determination of the real matter in dispute.”  General Statutes § 52–109.  “The ‘real party in interest’ with respect to a claim is the true legal owner of the claim—one who has a sufficient legal interest in the claim to have standing to pursue it.   See generally Richards v. Planning & Zoning Commission, 170 Conn. 318, 327, 365 A.2d 1130 (1976) ․ Substitution of the ‘real party in interest’ to pursue a claim is obviously ‘necessary for the determination of the real issue in dispute’ whenever the original party lacks standing to pursue it.  Poly–Pak Corp. of America v. Barrett, 1 Conn.App. 99, 102, 468 A.2d 1260 (1983).   In such circumstances, without the requested substitution, the court would have no subject-matter jurisdiction over the case, and any judgment it might render would be null and void.”  DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 26 Conn. L. Rptr. 349–50.

For the reasons stated above, in this case, as the trial court found in Dilieto v. County Obstetrics & Gynecology Group, P.C., “the one true owner of the plaintiff's claims against these defendants is the plaintiff's bankruptcy estate ․ Plainly, if the ‘real matter at issue’ in this case is to be determined, the Court must first have subject-matter jurisdiction.   That, in turn, depends upon the presence and participation of the bankruptcy trustee, who alone has standing to prosecute the claims.”  Id., 350.   Indeed, the defendants acknowledge as much in their motion to dismiss.

In discussing § 52–109 and the analogous provision in Practice Book § 9–20, the Supreme Court has observed that “these rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law ․ General Statutes § 52–109 and [what is now] Practice Book § [9–20] allow a substituted plaintiff to enter a case [w]hen any action has been commenced in the name of the wrong person as plaintiff ․ Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest.   In the context of analogous rule of federal civil procedure, it has been observed that [when] the change is made on the plaintiff's side to supply an indispensable party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading.   F. James & G. Hazard, Civil Procedure (2d Ed.1977) § 5.7, pp. 167–68.”  (Internal quotation marks omitted.)  DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 150–51, 998 A.2d 730 (2010).   Therefore, substitution of the bankruptcy trustee as the plaintiff in this action satisfies the second element of § 52–109.

Returning to the first element, according to the Supreme Court, the term “through mistake,” as used in § 52–109 “properly has been interpreted to mean an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence that she is the proper person to commence the [action.]].” (Internal quotation marks omitted.)  DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. 151.   The defendants maintain that the plaintiff cannot meet this element because his attorney filed several documents in the Bankruptcy Court before he brought this action that indicate that his attorney was aware that the trustee was the proper party to bring the action.   Nevertheless, the defendants did not submit evidence that the plaintiff's own negligence caused him to commence the action in his own name rather than that of the bankruptcy trustee.   Rather, it appears that his attorney was unfamiliar with the laws that apply to the action due to the status of the plaintiff's bankruptcy proceeding.³  To that extent, this case is similar to Scelza v. Onore, supra, in which the plaintiff mistakenly brought his action in his own name instead of the name of the successor entity to a partnership.   In considering whether the plaintiff should be allowed to substitute the entity as a plaintiff under § 52–109, the court concluded that “[t]he mistake ․ was plaintiff's attorney not properly interpreting the complicated and changing law of partnerships.   It is the type of mistake ․ which should be allowed to be corrected by adding additional parties plaintiffs.”  Scelza v. Onore, supra, 43 Conn. L. Rptr. 726.

On the other hand, “to prevail on a motion to substitute under § 52–109, a plaintiff must prove that the mistake which led him to misplead in the name of the wrong person did not result from his own failure to exercise reasonable diligence to know the truth.”  (Internal quotation marks omitted.)   Dragonette v. Maryca Enterprises, LLC, Superior Court, Docket No CV 09 5009735 (September 15, 2010, Bellis, J.) (50 Conn. L. Rptr. 624, 626).   As the court noted in Dragonette, in addressing whether to grant a bankruptcy trustee's motion to substitute himself as the plaintiff in the action, “[i]n DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 26 Conn. L. Rptr. 345, the court ․ addressed, inter alia, whether the plaintiff ․ had commenced the lawsuit in her own name rather than in the name of her bankruptcy trustee as a mistake.   The plaintiff had offered testimony that she had ‘honestly and reasonable believed that her bankruptcy was over’ after she and her husband received a discharge of their scheduled debts ․ [T]he court concluded that ‘[u]pon receiving the letter and Discharge of Debtor ․ the [plaintiffs] believed that their bankruptcy was over.   They had filed for bankruptcy to obtain a discharge of the scheduled debts, and by this letter they received formal notification that these debts had been discharged.   In their minds, as in the mind of the average layman with no legal training or personal experience, direct or vicarious with bankruptcy matters, their bankruptcy was over.’

“A similar issue was presented to the court in Nygren v. Steier, Superior Court, judicial district of Waterbury, Docket No. CV 00 0156707 (January 10, 2001, Doherty, J.) (28 Conn. L. Rptr. 699) ․ The court [employed] the two-prong test of § 52–109, considering first whether the plaintiff had commenced the suit in his own name [instead of in the name of his bankruptcy trustee] by mistake.   The court found that the plaintiff's testimony indicated that ‘the reason [the plaintiff] commenced this lawsuit in his name, without informing or naming the bankruptcy trustee, was that he believed he did not have a viable legal cause of action against the defendants.’   The court found that the plaintiff had relied on the advice of his bankruptcy attorney in not placing the cause of action on his bankruptcy schedules because the attorney ‘advised him ․ [that] it was not a viable cause of action.’   The court concluded that the plaintiff had commenced the action in his own name by mistake because ‘[t]here is no legal requirement that an individual must seek a second legal opinion in order for his mistake to be “an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence.’  “ Dragonette v. Maryca Enterprises, LLC, supra, 50 Conn. L. Rptr. 627.

Here, as in Dragonette, “[t]he evidentiary record ․ on the issue of mistake is comparatively lacking to that presented to the court in DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 26 Conn. L. Rptr. 345, and Nygren v. Steier, supra, 28 Conn. L. Rptr. 701 ․ Without an evidentiary showing that the plaintiff commenced the present action in the wrong name by mistake, it is impossible for this court to conclude that the plaintiff honestly and reasonably believed that she was the proper plaintiff.   Rather, it is just as probable as [the defendant] argues that the ‘plaintiff omitted the instant claim from [her] bankruptcy schedules and, after [her] Chapter 7 discharge, sought to resurrect it for her own personal benefit.’   Nevertheless, the court is cognizant that our rules of practice and remedial statutes such a § 52–109 must be construed liberally as the interests of justice require so as to avoid the harsh and inefficient result that attached to the mispleading of parties at common law.'  [Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., supra, 31 Conn.App. 81].”  Dragonette v. Maryca Enterprises, LLC, supra, 50 Conn. L. Rptr. 627.   Therefore, it is submitted that, in this case, as in Dragonette, an evidentiary hearing is required as to the limited issue of whether the plaintiff commenced this action in his own name by mistake.   See Equity One, Inc. v. Shivers, 125 Conn.App. 201, 206, 9 A.3d 379 (2010) (“[b]ecause jurisdiction in this case hinges on a factual determination regarding the plaintiff's status as holder of the note [and thus its standing] when it instituted this action, we conclude that the [trial] court improperly failed to determine the pertinent facts necessary to ascertain whether jurisdiction existed.   Accordingly, we remand the case for an evidentiary hearing to ascertain the plaintiff's status at the time it commenced the action so that the trial court can properly determine whether it has subject matter jurisdiction”), cert. granted, 300 Conn. 936, 17 A.3d 474 (2011).

If the plaintiff satisfies this element at the evidentiary hearing, the court will grant his motion to substitute the bankruptcy trustee as the plaintiff in this action.   Because this would resolve the jurisdictional issue of standing that the defendants raise in their motion to dismiss, the court denies their motion on that ground.   If the plaintiff does not do so, the court will grant the defendants' motion to dismiss on this ground.

The defendants also contend that the court should grant their motion to dismiss pursuant the theory of judicial estoppel.   Although they provide a citation to a relevant case, they do not refer to anything in the record that supports their contention that the court should grant their motion on this ground.   The plaintiff does not address this issue.

“[J]udicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding ․ The courts invoke judicial estoppel as a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings ․

“Typically, judicial estoppel will apply if:  1) a party's later position is clearly inconsistent with its earlier position;  2) the party's former position has been adopted in some way by the court in the earlier proceeding;  and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel ․ We further limit judicial estoppel to situations where the risk of inconsistent results with its impact of judicial integrity is certain ․ Thus, courts generally will not apply the doctrine if the first statement or omission was the result of a good faith mistake ․ or an unintentional error ․

“A party who fails to schedule a cause of action as an asset in a bankruptcy proceeding may create an inconsistency subject to the doctrine of judicial estoppel that would preclude it from bringing that cause of action subsequent to the bankruptcy ․ This is because the integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets.   The courts will not permit a debtor to obtain relief from the [B]ankruptcy [C]ourt by representing that no claims exist and then subsequently to assert those claims for his own benefit in a separate proceeding.   The interests of both the creditors, who plan their actions in the bankruptcy proceeding on the basis of information supplied in the disclosure statements, and the [B]ankruptcy [C]ourt, which must decide whether to approve the plan of reorganization on the same basis, are impaired when the disclosure provided by the debtor is incomplete ․

“Because the rule is intended to prevent improper use of judicial machinery ․ judicial estoppel is an equitable doctrine invoked by a court at its discretion.”  (Citations omitted;  internal quotation marks omitted.)   Association Resources, Inc. v. Wall, supra, 298 Conn. 169–71.

Assuming without deciding that the plaintiff's conduct meets the first two elements of judicial estoppel,⁴ the defendants have not provided evidence that it meets the third element, i.e., that the plaintiff would “derive an unfair advantage against [them].”  Id., 170.   Moreover, the time line suggests otherwise.   Specifically, in their memorandum in support of their motion to dismiss, which they filed less than a year after the plaintiff commenced this action, the defendants state that they “recently discovered that the plaintiff filed for Chapter 7 bankruptcy in 1996 and his debts were discharged in 1997.”   At that time, they also discovered that the plaintiff had not listed his claims against them as an asset in the bankruptcy proceeding.   Accordingly, the circumstances are not such that the defendants were relying on the plaintiff's conduct in the bankruptcy proceeding in conducting their affairs over a significant amount of time.   Here, as in Association Resources, Inc., there is no evidence that the defendants “were prejudiced by [the plaintiff's] nondisclosure.”  Id., 172.

In addition, the defendants have not provided any evidence that the plaintiff's failure to list this action as an asset in the bankruptcy proceeding was an act of bad faith, rather than an unintentional omission.   As the court stated in Association Resources, in such circumstances, “the trial court did not abuse its discretion in declining to utilize the doctrine of judicial estoppel to preclude the [plaintiff's] counterclaim, as courts generally will not apply the doctrine if the first statement or omission was the result of a good faith mistake ․ or an unintentional error.”  (Internal quotation marks omitted.)  Id., 171.

For the foregoing reasons, the court declines to grant the defendants' motion to strike on this ground.

CONCLUSION

Accordingly, the court will conduct an evidentiary hearing on the limited issue of whether the plaintiff commenced this action in his own name by mistake, as that term is used in General Statutes § 52–109.

Woods, J.

FOOTNOTES

FN1. In Association Resources, Inc. v. Wall, supra, 298 Conn. 145, the court recognized that even unscheduled claims may be revested in the debtor if the debtor's bankruptcy action is not discharged, but instead is dismissed pursuant to 11 U.S.C. § 1307 without any administration.   In such circumstances, the issue of the plaintiff standing to bring the claims is governed by “[§ ]349(b)(3) of title 11 of the United States Code [which] provides in relevant part:  ‘Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title ․ (3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.’  ․ The basic purpose of [11 U.S.C. § 349(b) ] is to undo the bankruptcy case, as far as practicable, and to restore all property rights to the position in which they were found at the commencement of the case.”  (Emphasis in original;  internal quotation marks omitted.)  Association Resources, Inc. v. Wall, supra, 298 Conn. 165–66.Accordingly, the court explained, “under 11 U.S.C. § 349(b)(3), the failure to disclose a cause of action in bankruptcy proceedings does not preclude the assertion of that claim in proceedings instituted after the dismissal of the bankruptcy proceeding ․ 11 U.S.C. § 349(b)(3) operates to restor[e] [the debtor's] standing to assert his alleged counterclaims, defenses and offsets in this action, notwithstanding his failure (which we obviously do not condone) to disclose such matters in the bankruptcy case ․” (Citation omitted;  internal quotation marks omitted.)  Association Resources, Inc. v. Wall, supra, 298 Conn. 166–67.It is apparent that 11 U.S.C. § 349(b)(3) does not apply to the present case in that, as discussed herein, the evidence indicates that the plaintiff's bankruptcy proceeding was not dismissed, but rather was discharged after being administered..  FN1. In Association Resources, Inc. v. Wall, supra, 298 Conn. 145, the court recognized that even unscheduled claims may be revested in the debtor if the debtor's bankruptcy action is not discharged, but instead is dismissed pursuant to 11 U.S.C. § 1307 without any administration.   In such circumstances, the issue of the plaintiff standing to bring the claims is governed by “[§ ]349(b)(3) of title 11 of the United States Code [which] provides in relevant part:  ‘Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title ․ (3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.’  ․ The basic purpose of [11 U.S.C. § 349(b) ] is to undo the bankruptcy case, as far as practicable, and to restore all property rights to the position in which they were found at the commencement of the case.”  (Emphasis in original;  internal quotation marks omitted.)  Association Resources, Inc. v. Wall, supra, 298 Conn. 165–66.Accordingly, the court explained, “under 11 U.S.C. § 349(b)(3), the failure to disclose a cause of action in bankruptcy proceedings does not preclude the assertion of that claim in proceedings instituted after the dismissal of the bankruptcy proceeding ․ 11 U.S.C. § 349(b)(3) operates to restor[e] [the debtor's] standing to assert his alleged counterclaims, defenses and offsets in this action, notwithstanding his failure (which we obviously do not condone) to disclose such matters in the bankruptcy case ․” (Citation omitted;  internal quotation marks omitted.)  Association Resources, Inc. v. Wall, supra, 298 Conn. 166–67.It is apparent that 11 U.S.C. § 349(b)(3) does not apply to the present case in that, as discussed herein, the evidence indicates that the plaintiff's bankruptcy proceeding was not dismissed, but rather was discharged after being administered.

FN2. This view is also indirectly supported by several decisions of the Connecticut appellate courts.   See DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 146–47, 151, 998 A.2d 730 (2010) (court recounted procedural history of case, including trial court's decisions to grant motion for substitution and deny defendants' motion to dismiss, without commenting that such decisions were inappropriate;  and, in discussing substitution, court made following reference to federal decision:  “see also Health Research Group v. Kennedy, 82 F.R.D. 21, [30] (D.D.C.1979) (substitution of real party in interest as plaintiff permitted to cure lack of standing of original plaintiff)” (internal quotation marks omitted));  Fairfax Properties, Inc. v. Lyons, 72 Conn.App. 426, 437 n.12, 806 A.2d 535 (2001) (although jurisdiction first rule not at issue, in a footnote, court noted “[t]here is decisional authority ․ that allows an amendment to a complaint to add an alternative basis for subject matter jurisdiction after jurisdiction has been questioned”)..  FN2. This view is also indirectly supported by several decisions of the Connecticut appellate courts.   See DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 146–47, 151, 998 A.2d 730 (2010) (court recounted procedural history of case, including trial court's decisions to grant motion for substitution and deny defendants' motion to dismiss, without commenting that such decisions were inappropriate;  and, in discussing substitution, court made following reference to federal decision:  “see also Health Research Group v. Kennedy, 82 F.R.D. 21, [30] (D.D.C.1979) (substitution of real party in interest as plaintiff permitted to cure lack of standing of original plaintiff)” (internal quotation marks omitted));  Fairfax Properties, Inc. v. Lyons, 72 Conn.App. 426, 437 n.12, 806 A.2d 535 (2001) (although jurisdiction first rule not at issue, in a footnote, court noted “[t]here is decisional authority ․ that allows an amendment to a complaint to add an alternative basis for subject matter jurisdiction after jurisdiction has been questioned”).

FN3. See footnote 4..  FN3. See footnote 4.

FN4. As to these elements, it is noted that the defendants submitted documents that indicate that in 2010, the plaintiff filed a motion to reopen his bankruptcy proceeding to permit him to amend his schedule of assets by adding his claim against the defendants.   If this motion were granted, and the plaintiff amended his schedule of assets as indicated, the plaintiff's conduct would no longer meet the first element of judicial estoppel..  FN4. As to these elements, it is noted that the defendants submitted documents that indicate that in 2010, the plaintiff filed a motion to reopen his bankruptcy proceeding to permit him to amend his schedule of assets by adding his claim against the defendants.   If this motion were granted, and the plaintiff amended his schedule of assets as indicated, the plaintiff's conduct would no longer meet the first element of judicial estoppel.

Woods, Glenn A., J.