UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANDREW SIMMERS,

Plaintiff,

v. No. 21-cv-1023 (DLF)

NATIONAL RAILROAD PASSENGER CORP.,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Andrew Simmers brings this case under the Federal Employers’ Liability Act

(FELA),

et seq., to recover for injuries sustained while working for defendant

National Railroad Passenger Corporation (Amtrak). Before the Court is Amtrak’s Motion for

Summary Judgment, Dkt. 6. For the following reasons, the Court will grant that motion.

I. BACKGROUND

Simmers began working at Amtrak as a “maintenance gang thumper.” Pl.’s Counter

Statement of Material Facts ¶ 4, Dkt. 7.1 He alleges that he injured his shoulders in the course of

his employment on May 29, 2019 when he “picked up two rail jacks from a work truck.” Def.’s

Statement of Material Facts ¶ 7, Dkt. 6. On June 13, 2019, Simmers’ counsel “sent a letter of

representation to Amtrak” concerning the alleged injury.

.

1 The Court cites to the parties’ Statements of Material Facts if a fact is undisputed. If a fact is disputed, the Court will indicate as such. On September 5, 2019, Simmers filed a petition for Chapter 7 bankruptcy. See

.2

Simmers’ bankruptcy petition did not disclose his personal injury claim against Amtrak. See

Pl.’s Counter Statement ¶¶ 20, 22. Simmers received an Order of Discharge from the

Bankruptcy Court on January 28, 2020. See Def.’s Statement ¶ 19.

On June 12, 2020, almost six months after receiving the above Order, Simmers filed a

FELA claim against Amtrak with respect to his above injury. See

; Pl.’s Counter

Statement ¶ 21. This Court dismissed that claim without prejudice because the bankruptcy

trustee had not abandoned the underlying personal injury claim, which meant that Simmers

lacked standing to bring it. See Simmers v. Nat’l R.R. Passenger Corp. (Simmers I), No. CV 20-

1548 (JEB),

, at *3 (D.D.C. Dec. 2, 2020). The Court also noted another

obstacle to Simmers’ claim for relief: Even if the trustee later abandoned the claim, Simmers

would need to overcome the “basic default rule” that “[i]f a plaintiff-debtor omits a pending (or

soon-to-be-filed) lawsuit from the bankruptcy schedules and obtains a discharge (or plan

confirmation), judicial estoppel bars the [plaintiff’s] action.”

(collecting cases).

On December 2, 2020, the trustee abandoned Simmers’ FELA claim. See Pl.’s Opp’n to

Def.’s Mot. for Summ. J. Ex. C (Notice of Abandonment) at 1, Dkt. 7-5; Pl.’s Counter Statement

¶ 29. In doing so, the trustee took the position that the claim was exempt from disclosure under

Maryland law. See Notice of Abandonment at 1; Pl.’s Counter Statement ¶ 30. Several months

later, on April 13, 2021, Simmers filed the instant action, which raises the same FELA claim as

his 2020 action. See Compl., Dkt. 1.

2 Although Simmers marks this paragraph as denied in part, see Pl.’s Response to Defendant’s Statement, ¶ 13, Dkt. 7, he admits that he filed a petition for Chapter 7 bankruptcy.

2 On May 13, 2021, Amtrak moved for summary judgment. See Def.’s Mot. for Summ. J.,

Dkt. 6. The motion argues that Simmers’ failure to disclose his personal injury claim in his

bankruptcy proceeding estops him from raising it here. See

at 15–21. The motion is now ripe

for review.

II. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate

if the moving party “shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.

Liberty Lobby, Inc.,

, 247–48 (1986). A dispute is “genuine” if “the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson,

; see also Holcomb v. Powell,

(D.C. Cir. 2006). A fact is “material” if it

“might affect the outcome of the suit under the governing law.” Anderson,

;

Holcomb,

. In reviewing the record, “the court must draw all reasonable

inferences in favor of the nonmoving party, and it may not make credibility determinations or

weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,

(2000).

However, “a plaintiff opposing summary judgment” must “substantiate [his allegations]

with evidence” that “a reasonable jury could credit in support of each essential element of [his]

claims.” Grimes v. D.C.,

(D.C. Cir. 2015). The moving party is entitled to

summary judgment if the nonmoving party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett,

(1986).

3 III. ANALYSIS

The doctrine of judicial estoppel “prevents a party from prevailing in one phase of a case

on an argument and then relying on a contradictory argument to prevail in another phase.” New

Hampshire v. Maine,

(2001) (citation omitted). In deciding whether to apply

judicial estoppel, courts generally consider (1) whether “a party’s later position [is] clearly

inconsistent with its earlier position;” (2) whether “the party succeeded in persuading a court to

accept that party’s earlier position;” and (3) whether “the party seeking to assert an inconsistent

position [will] derive an unfair advantage or impose an unfair detriment on the opposing party if

not estopped.” Moses v. Howard Univ. Hosp.,

(D.C. Cir. 2010). The D.C.

Circuit has also held that courts may only invoke judicial estoppel against a party “who has

engaged in misconduct in a separate judicial proceeding” if there is “a discernible connection

between the two proceedings.”

(citation omitted). Similarly, the Circuit has suggested

that “it may be appropriate to resist application of judicial estoppel when a party’s prior position

was based on inadvertence or mistake.” Marshall v. Honeywell Tech. Sys. Inc.,

(D.C. Cir. 2016) (quoting Maine,

). Upon consideration of the above factors,

this Court will hold that Simmers is estopped from raising his FELA claim

Beginning with the first factor in Moses, Simmers’ position in this litigation is “clearly

inconsistent” with his representations before the bankruptcy court. Moses,

. In

Moses, the D.C. Circuit found inconsistency because a plaintiff had failed to disclose a

retaliation claim in his bankruptcy proceedings, despite actively pursuing that claim when those

proceedings began. See

. Like the plaintiff in Moses, Simmers raises a personal injury

claim in this court that he knew about but failed to disclose in a prior bankruptcy proceeding.

Moreover, before he filed for bankruptcy, Simmers sent a letter of representation to Amtrak,

4 which demonstrated his active pursuit of a personal injury claim. See Def.’s Statement ¶ 9.

Simmers’ inconsistency accordingly satisfies Moses’ first factor.

Turning to that case’s second factor, Simmers “succeeded in persuading” the bankruptcy

court to accept his earlier position. Moses,

. In Moses, the D.C. Circuit found

that factor to be satisfied when the bankruptcy court discharged the plaintiff’s petition without

addressing his undisclosed discrimination claim.

. That disposition, after all, left “little

doubt that Moses succeeded in hiding the inconsistency.”

Similarly here, the bankruptcy

court discharged Simmers’ petition without considering his potential cause of action. Def.’s

Statement ¶ 19; Pl.’s Counter Statement ¶ 22. That is enough to satisfy Moses’ second factor.

On its third factor, allowing Simmers to proceed on his FELA claim would give him an

“unfair advantage” over both his creditors and Amtrak. Moses,

. The Moses

court found an unfair advantage because the plaintiff in that case had positioned himself to keep

any damages in his retaliation suit solely for himself. See

. The plaintiff thereby “set

up a situation in which he could [both] gain an advantage over his creditors” and prevent the

trustee from settling his claim before litigation.

Here, Simmers seeks to distinguish Moses

on the ground that his bankruptcy trustee understood Maryland law to treat his FELA claim as an

exempted asset. See Pl.’s Opp’n at 11, Dkt. 7; see also Notice of Abandonment at 1. But

although Maryland law generally exempts judgments in personal injury cases, see Md. Cts. &

Jud. Proc. § 11–504(b)(2), that exemption covers only “damages for pain and suffering and loss

of future earnings,” and not “damages for lost wages, prepetition medical expenses, injuries to

property, and punitive damages,” Calafiore v. Werner Enters., Inc.,

(D.

Md. 2006); see also In re Hurst,

(Bankr. D. Md. 1999); Niedermayer v.

Adelman,

(D. Md. 1988). Under FELA, plaintiffs in Simmers’ position can

5 recover damages in both the exempted and nonexempted categories. See BNSF Ry. Co. v. Loos,

(2019) (noting that FELA allows recovery of lost wages); see also

. Accordingly, Simmers’ failure to disclose his FELA claim set up the possibility of him

keeping both the exempt and nonexempt portions of a favorable judgment, to the detriment of his

creditors. See Moses,

. It also prevented the trustee from settling the case, at

least with respect to the nonexempt remedies, which may have benefited Amtrak. See

The

third Moses factor thus weighs in favor of judicial estoppel. See

This case also satisfies the remaining requirements for judicial estoppel. First, there is a

“a discernible connection” between Simmers’ bankruptcy proceeding and the current FELA

claim.

There is no “high bar” for that connection, Robinson v. Dist. of Columbia,

(D.D.C. 2014), and it is satisfied here because Simmers raises the same claim

in this action that he failed to disclose in his bankruptcy action, see Moses,

. In

addition, Simmers cannot avoid judicial estoppel based on mistake or inadvertence. See Pl.’s

Opp’n at 1–2, 10, 13–14. Although Simmers’ filings reference a sworn statement, see, e.g., id. at

2 (referencing “Exhibit A Sworn Statement of Andrew Simmers”), he has not submitted any such

statement on the record. And at the summary judgment stage, debtor-plaintiffs may not prevail

on an inadvertence theory where they have “failed to introduce even their own sworn

declarations . . . that their failures to disclose were inadvertent.” Davis v. Dist. of Columbia,

(D.C. Cir. 2019). Moreover, even if Simmers had filed the statement described

in his briefing, his inadvertence argument would still fall short. His core argument on this issue

is that his bankruptcy attorney advised him that he did not need to disclose his claim. See Pl.’s

Counter Statement ¶¶ 8–20. But “reliance on an attorney’s advice—bad or not—does not relieve

the client of the consequences of her own acts for the purposes of judicial estoppel.” Robinson,

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n.4 (internal quotation marks omitted) (collecting cases). Accordingly,

Simmers’ claim does not fall within the inadvertence exception from judicial estoppel.

Finally, Simmers may not avoid judicial estoppel on the ground that he re-opened his

bankruptcy proceeding and filed an amended schedule that included his FELA claim. See Pl.’s

Opp’n at 13. Moses rejected that same argument on the ground that allowing a debtor-plaintiff to

“back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission

has been challenged by an adversary, suggests that a debtor should consider disclosing potential

assets only if he is caught concealing them.”

(citation omitted). The D.C.

Circuit took the same position in Marshall, which noted that Simmers’ position would “lessen

the needed incentive for the debtor to provide complete and truthful information at the outset.”

n.10. Those cases squarely control here. For the above reasons, the Court holds

that Simmers is estopped from raising his FELA claim in this proceeding.

CONCLUSION

Accordingly, it is

ORDERED that the defendant’s Motion for Summary Judgment, Dkt. 6, is GRANTED.

The Clerk of Court is directed to close this case.

SO ORDERED.

________________________ DABNEY L. FRIEDRICH United States District Judge

February 25, 2022

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