Yanez v. US
| Decision Date | 14 December 1990 |
| Docket Number | No. C-88-20349 (SW).,C-88-20349 (SW). |
| Citation | 753 F. Supp. 309 |
| Court | U.S. District Court — Northern District of California |
| Parties | Isabel YANEZ, Plaintiff, v. UNITED STATES, Defendant. UNITED STATES, Third-Party Plaintiff, v. BROCO, INC., J.S. Brower & Assoc., and J.S. Brower, Third-Party Defendants. |
Law offices of Stanley Bell, Joseph Appel and Michael Appel, San Francisco, Cal., for plaintiff Isabel Yanez.
William McGivern, U.S. Atty., William Murphy, Asst. U.S. Atty., San Jose, Cal., for defendant and third-party plaintiff U.S.
Law offices of James Duryea, James Duryea and Amy Ann Kopple, San Francisco, Cal., for third-party defendants Broco, Inc., J.S. Brower & Associates, and J.S. Brower individually.
ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANT UNITED STATES; DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION; GRANTING THIRD-PARTY DEFENDANTS' MOTION TO DISMISS
This matter came to be heard on defendant United States' Motion for Summary Judgment on the Issue of Judicial Estoppel, Plaintiff's Motion for Reconsideration of Order Granting Partial Summary Judgment to Defendant United States, and Third-Party Defendants' Motion to Dismiss. Good cause having been shown, defendant United States' motion is GRANTED; plaintiff's motion is DENIED; and third-party defendants' motion is GRANTED.
BACKGROUND:
Plaintiff Isabel Yanez ("Yanez") filed this action on June 7, 1988, against defendant United States (the "government") pursuant to 28 U.S.C. § 1346(b), the Federal Tort Claims Act ("FTCA"), alleging that she was injured by an explosion that occurred while she was working at Caelus Devices, Inc. ("CDI"), on June 11, 1986. CDI was engaged in the production of military equipment, explosive components, pursuant to a contract with defendant United States. Yanez alleges in this suit that government liability arose both from the contractual relationship between the government and CDI and from the government's negligent failure to enforce safety precautions mandated by the contract.
Fifteen months before filing this suit, Yanez and CDI had sued defendants J.S. Brower & Assoc., J.S. Brower, and Broco, Inc. ("Broco and Brower") in state court, claiming that a defect in the lead azide was the cause of the accident which injured Yanez. See exhibits attached to Decl. of William Murphy (including copy of Complaint). Yanez settled the state court action against Broco and Brower, receiving approximately $375,000.00. The state court judge who presided over the settlement made a good faith settlement determination, pursuant to California Code of Civil Procedure § 877.6.1
After Yanez brought this FTCA action solely against the government, the government impleaded Broco and Brower as third-party defendants. Broco and Brower asked this court to dismiss because their earlier settlement was made in good faith under California Code of Civil Procedure § 877.6, but this court denied that motion and refused to dismiss the third-party complaint against Broco and Brower.
Although the state suit was brought against Broco and Brower for the defect in lead azide, plaintiff now completely denies that the defective lead azide caused the accident. Plaintiff denied the following request for admission by the government: "Plaintiff is of the opinion that defective dextrinated lead azide supplied by Broco, Incorporated to Caelus Devices, Inc. on June 9, 1986 caused her accident of June 11, 1986." In addition, plaintiff's expert witnesses now claim that the negligence of the government was the sole cause of the accident. See Decl. of Bunker ("It is of my opinion that had safe and proper procedures been established and/or enforced by defendant herein United States, it is more probable that plaintiff Isabel Yanez would not have been injured"); see also Decl. of Roth ("Had the Government sic enforced the safety requirements utilized by the munitions industry as of the date of the accident that proper and effective grounding devices be utilized when lead azide was being handled, the subject accident would have, in all likelihood, been eliminated").
DISCUSSION:
The government argues that Yanez should be barred by judicial estoppel from bringing forward a new theory of liability in this action because Yanez had argued in the state court action that the cause of the accident was a defect in the dextrinated lead azide.
The general rule of judicial estoppel in the Ninth Circuit is the following:
A plaintiff who has obtained relief from an adversary by asserting and offering proof to support one position may not be later heard in the same court to contradict himself in an effort to establish against the same adversary a second claim inconsistent with his earlier contention. Such use of inconsistent positions would most flagrantly exemplify that "playing fast and loose with the courts" which has been emphasized as an evil the courts should not tolerate. State of Arizona v. Shamrock Foods Co., 729 F.2d 1208, 1215 (9th Cir.1984), cert. denied, 469 U.S. 1197, 105 S.Ct. 980, 83 L.Ed.2d 982 (1985), quoting Scarano v. Central R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir.1953) (emphasis added).
Judicial estoppel differs from collateral estoppel and equitable estoppel. The main purpose behind the theory of judicial estoppel is to maintain the integrity of the court: a party should not be allowed to argue inconsistent theories before the courts because the entire judicial process will become corrupted. See Comment, "Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel," 80 Nw.U.L.Rev. 1245 (1986) (hereinafter "Comment").
Yanez argues that judicial estoppel should not apply here because (1) the two claims are not conflicting claims and (2) the claims are not in the same court against the same party. While the plain language of Shamrock Foods seems to indicate that judicial estoppel does not apply to the case at bar, the government argues persuasively that the above cited language in Shamrock Foods is dicta. The Ninth Circuit has only considered the issue of judicial estoppel in three cases, and not one of them addresses the question of whether the claims must be in the same court against the same party. See Garcia v. Andrus, 692 F.2d 89 (9th Cir.1982); Stevens Technical Services, Inc. v. SS Brooklyn, 885 F.2d 584 (9th Cir.1989); Shamrock Foods, 729 F.2d at 1215. In each case, the question of estoppel was based on a finding of lack of consistency.
Therefore, examination of the other circuit courts' decisions is instructive, although the other circuits also show substantive differences in the following: whether privity of parties is required, whether there is a requirement that the claims be in the same court, and whether the claim has reached a final disposition or been "adopted" by the first court.
The Ninth Circuit in Shamrock Foods refused to apply judicial estoppel because it found that the two claims that were allegedly inconsistent were not truly inconsistent. 729 F.2d at 1215. In Shamrock Foods, the class action plaintiffs argued that defendants had conspired to rig prices on a wholesale level and then, after all but two defendants settled, changed its position to argue that the conspiracy occurred on the retail level. Id. The court held that these positions were not truly inconsistent. Id.
In Garcia v. Andrus, the Ninth Circuit found that a state court proceeding for partition was not inconsistent with a federal proceeding for proportional grazing rights. 692 F.2d at 94.
In the case at bar, the claims might be consistent because the accident could have been caused by two sources. However, there is no mention of the governmental theory of liability in the state claim, and there is no mention of the state court theory of liability in this FTCA suit. Even if the claims are not absolutely conflicting, the manner in which Yanez has stated the claims is conflicting.
Yanez also argues that even if the two claims are inconsistent, she is allowed to argue two inconsistent theories under the Federal Rules of Civil Procedure: she can argue that the accident was caused both by the defective product and the negligence of the government in monitoring the electrostatic discharge. Rule 8(e)(2), F.R.C.P., states:
A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleadings is not made insufficient by the insufficiency of one or more of the statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal equitable, or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11.
Some courts hold that judicial estoppel exists despite Rule 8(e)(2). Allen v. Zurich, 667 F.2d 1162, 1167 (4th Cir.1982); City of Kingsport v. Steel and Roof Structure Inc., 500 F.2d 617, 619-20 (6th Cir.1974). However, at least one court has held that Rule 8(e)(2) bars the application of judicial estoppel. See Parkinson v. California Co., 233 F.2d 432, 438 (10th Cir.1956). The First Circuit has ruled in Keebler Co. v. Rovira Biscuits Corp., 624 F.2d 366, 374 n. 7 (1st Cir.1980), that because Rule 8(e)(2) allows alternate pleading, judicial estoppel does not apply to bar a party's claim when there was a conflicting patent application statement. However, in Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208 (1st Cir.1987), the First Circuit later stated clearly that judicial estoppel did exist.
Therefore, this court interprets Rule 8(e)(2) to mean that parties can plead alternate theories or claims in the same action, but not in separate actions. Thus, although Yanez was allowed to plead alternate theories in this FTCA action, she cannot plead one theory in the state...
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Yanez v. U.S.
...in her May 29, 1990 opposition regarding the legal issue of judicial estoppel. On December 14, 1990, in Yanez v. United States, 753 F.Supp. 309 (N.D.Cal.1990) ("Yanez I "), the court granted the United States' motion, treating it as one for summary judgment, entering final judgment against ......