BANKRUPTCY NO.: 1-94-01547, ADVERSARY NO.: 1-00-00249United States Bankruptcy Court, M.D. Pennsylvania.
July 1, 2003
Nature of Proceeding: Plaintiff’s Motion to Reopen Record (Doc. 46).
OPINION[1]
JOHN THOMAS, Bankruptcy Judge
Plaintiff, General Motors Corporation (“GMC” or “Plaintiff”), filed a Motion to Reopen the Record of the hearing held on October 3 and 4, 2001.[2] This request stems from a desire to refute Defendant’s, Krystal Cadillac-Oldsmobile-GMC Truck, assertion in a post-hearing brief that Plaintiff should be judicially estopped from asserting two irreconcilable and inconsistent positions on the issue of whether a contract between the parties was entered into by mistake. The Court denies Plaintiff’s request for the following reasons.
Background
A hearing was held on October 3-4, 2001 concerning Trustee’s motion to sell the GMC franchise, Trustee’s motion to compromise a claim, GMC’s motion to lift stay to terminate the franchise, GMC’s motion for declaratory judgment, Debtor’s motion to sell the GMC franchise and Debtor’s motion to enjoin the Trustee. By the Trustee’s request, the testimony and evidence from the hearing held on November 30, 2000 was incorporated into the record, without objection.
In response to Plaintiff’s post-hearing brief filed July 30, 2002, Defendant filed a motion objecting to the inclusion of several exhibits incorporated therein which were not admitted into the record. Defendant’s objection was sustained without prejudice and Plaintiff filed the instant motion requesting the record to be reopened to admit these exhibits. Defendant has not filed a response to Plaintiff’s motion.
Discussion
The heart of Plaintiff’s motion concerns a November 2000 franchise agreement that both the Plaintiff and Defendant entered into post-petition. Defendant argues in its post-hearing brief that Plaintiff has taken two irreconcilable and inconsistent positions concerning whether this agreement was entered into by mistake and that it should be judicially estopped from asserting this argument. In the interest of fairness and substantial justice, Plaintiff maintains that additional information should be admitted into the record to refute Defendant’s allegation.[3]
Although there is not an express statutory provision pertaining to the reopening of a record before a decision has been rendered, this Court finds guidance from the Third Circuit in Rochez Bros. v.Rhoades. The Court stated:
Generally, whether a trial court will reopen a case to take more testimony is discretionary with that court. In deciding whether to reopen a case, the [bankruptcy court] should be concerned with several factors: What burden, if any, will be placed on the parties and their witnesses; what undue prejudice may result by not taking new testimony; and what consideration should be given to judicial economy.
527 F.2d 891, 894 n. 6 (3d Cir. 1975) (citations omitted);accord Zenith Radio Corp. v. Hazeltine Research,Inc., 401 U.S. 321, 331 (1971).
Despite Plaintiff’s insistence, this Court finds it unnecessary to reopen the record solely on the basis of refuting a judicial estoppel allegation. Pursuant to the Third Circuit’s decision in Bulger, three requirements must be met before judicial estoppel may be applied:
First, the party to be estopped must have taken two positions that are irreconcilably inconsistent. (citation omitted). Second, judicial estoppel is unwarranted unless the party changed his or her position “in bad faith — i.e., with intent to play fast and loose with the court.” Id. Finally, a [court] may not employ judicial estoppel unless it is “tailored to address the harm identified” and no lesser sanction would adequately remedy the damage done by the litigant’s misconduct. (citation omitted).
Montrose Med. Group Participating Sav. Plan v. Bulger, 243 F.3d 773, 779-80 (3d Cir. 2001).
Based on Bulger, Defendant has not shown that the first element has been satisfied.
During the November 30, 2000 hearing, the Trustee personally testified on his own behalf with respect to his pending motion to sell the franchise to GMC. During questioning by Plaintiff’s counsel, Mr. Mollica, the Trustee provided his opinion on why the parties entered into the November 2000 franchise agreement. When answering a questions posed by Judge Woodside, the Trustee responded that “as Mr. Mollica [(Plaintiff’s counsel)] explained to me, [Plaintiff] felt the better part of discretion here that they ought to go ahead and issue another agreement(November 2000 franchise agreement). . . .” See Nov. 30, 2000 Transcript at 50-51 (Doc. 462). In response, Mr. Mollica replied that he could not “speak to the specifics of how that happened. . . .”See id. at 51.
When the parties reconvened on October 3-4, 2001 for additional proceedings, Mr. Mollica presented testimony from Plaintiff’s employee, Norman A. Jay, along with relevant exhibits to support his testimony that Defendant was not suppose to receive the November 2000 franchise agreement. See October 4, 2001 Transcript at 488-90 (Doc. 494).
This Court fails to see how Plaintiff has occupied conflicting positions during this case concerning how the November 2000 franchise agreement arose. Mr. Mollica informed the Court during the November 30, 2000 hearing that he did not know how Defendant came into possession of the November 2000 agreement. This statement is in no way related to the Trustee’s testimony as to why he believed Defendant received the agreement. Neither Mr. Mollica’s statement nor the evidence presented on his client’s behalf during the October 3-4, 2001 hearing conflict in such a manner to warrant a judicial estoppel sanction.
Because the Court finds that judicial estoppel is not applicable to the issue at hand and Plaintiff’s Motion to Reopen is only premised on a desire to refute Defendant’s judicial estoppel allegation, the Court hereby denies Plaintiff’s Motion to Reopen the Record.
An Order will follow.
ORDER
For those reasons indicated in the Opinion filed this date, IT ISHEREBY ORDERED that Plaintiff’s, General Motors Corporation, Motion to Reopen Record is denied.