FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAIDA DZAKULA, No. 11-16404
Plaintiff-Appellant,
D.C. No.
v. 5:10-cv-05462-PSG
JOHN M. MCHUGH, Secretary of
the Army, ORDER AND
Defendant-Appellee. AMENDED
OPINION
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding
Submitted November 22, 2013*
San Francisco, California
Filed December 11, 2013
Amended January 15, 2014
Before: Michael Daly Hawkins, Susan P. Graber,
and Morgan Christen, Circuit Judges.
Opinion by Judge Graber
*
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
2 DZAKULA V. MCHUGH
SUMMARY**
Judicial Estoppel
The panel affirmed the district court’s dismissal, based on
judicial estoppel, of plaintiff’s employment discrimination
action.
Plaintiff had filed for Chapter 7 bankruptcy protection,
and failed to list this employment discrimination action on
her bankruptcy schedules. The panel held that the district
court applied the correct legal rule, properly weighed the
factors set forth in New Hampshire v. Maine, 532 U.S. 742
(2001), and did not otherwise err in concluding that plaintiff’s
omission on her bankruptcy schedule was neither inadvertent
nor mistaken, and that therefore judicial estoppel barred this
action.
COUNSEL
Jeanine G. Strong, Carmel, California, for Plaintiff-Appellant.
Stuart F. Delery, Assistant Attorney General, Melinda Haag,
United States Attorney, and Mark B. Stern and Melissa N.
Patterson, Attorneys, Appellate Staff, Civil Division,
Department of Justice, Washington, D.C., for Defendant-
Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DZAKULA V. MCHUGH 3
ORDER
The opinion filed on December 11, 2013, and published
at 737 F.3d 633, is amended by the opinion filed concurrently
with this order, as follows:
At slip opinion page 3, 737 F.3d at 634, in the first
paragraph, insert the following after “potential asset.”:
After Plaintiff added this action to the
schedules, the bankruptcy court discharged
her debts and closed the case.1
___________________________
1
Plaintiff argued before the district court that,
by operation of 11 U.S.C. § 554(c), this claim
was abandoned to her when the bankruptcy
court closed the case, and Defendants have
not disputed that interpretation.
The time for filing petitions for panel rehearing and for
rehearing en banc shall remain the same from the December
11, 2013, original filed date of the opinion.
OPINION
GRABER, Circuit Judge:
Plaintiff Maida Dzakula appeals the district court’s
dismissal of this action, which alleges that certain adverse
employment actions by her employer, Defendant John M.
McHugh, Secretary of the Army, resulted from
4 DZAKULA V. MCHUGH
discrimination. Plaintiff had filed for Chapter 7 bankruptcy
protection, but she failed to list this action as an asset on her
bankruptcy schedules. Only when Defendant moved to
dismiss this action on the ground of judicial estoppel did
Plaintiff amend her bankruptcy schedules to add this potential
asset. After Plaintiff added this action to the schedules, the
bankruptcy court discharged her debts and closed the case.1
The district court held that no evidence suggested that
Plaintiff’s original omission had been inadvertent or mistaken
and that, weighing the factors set forth in New Hampshire v.
Maine, 532 U.S. 742, 750–51 (2001), judicial estoppel bars
this action. Plaintiff timely appeals, and we affirm.
While this appeal was pending, we decided Ah Quin v.
County of Kauai Department of Transportation, 733 F.3d 267
(9th Cir. 2013). In that case, the plaintiff-debtor, like
Plaintiff here, failed to list her separate action as an asset in
her bankruptcy schedules, and the defendant moved to
dismiss the action as barred by judicial estoppel. Id. at
269–70. When considering whether the omission was
“inadvertent or mistaken,” the district court in Ah Quin
applied a “narrow interpretation” of those terms and held that,
because the plaintiff-debtor knew about the claim and had a
motive to conceal it, the omission was not “inadvertent or
mistaken” as a matter of law. Id. at 271–72; see id. at 272
(explaining that the district court appeared to conclude that it
was “bound to apply” the narrow interpretation). We
reversed. We held that “the ordinary understanding of
‘mistake’ and ‘inadvertence’”—not the narrow interpretation
applied by the district court—applies. Id. at 277.
1
Plaintiff argued before the district court that, by operation of 11 U.S.C.
§ 554(c), this claim was abandoned to her when the bankruptcy court
closed the case, and Defendants have not disputed that interpretation.
DZAKULA V. MCHUGH 5
We further held that the district court’s application of the
wrong legal rule was not harmless. See id. at 277–79. The
evidence in that case supported “a conclusion either of
mistake and inadvertence, or of deceit.” Id. at 277. Many
circumstances, such as the timing of Plaintiff’s amendment to
the bankruptcy schedules, suggested that perhaps the
omission had been deceitful. Id. at 278. But some
circumstances supported the conclusion that the omission had
been inadvertent. Id. at 277–78. Of particular note, the
plaintiff-debtor had “filed an affidavit in which she swore
that, when she reviewed the bankruptcy schedules, she did
not think that she had to disclose her pending lawsuit because
the bankruptcy schedules were ‘vague.’” Id. at 277.
“[V]iewing the evidence in the light most favorable to
Plaintiff, and thus crediting her affidavit, her bankruptcy
filing was inadvertent.” Id. at 278 (citation omitted).
Accordingly, we remanded for further factual development.
Id. at 279.
After we decided Ah Quin, we ordered supplemental
briefing on the effect of Ah Quin on this case. We now
conclude that Ah Quin is distinguishable. Unlike in Ah Quin,
the district court here did not apply the wrong legal rule.
Instead, the court correctly assessed whether Plaintiff’s
omission was inadvertent or mistaken under the ordinary
understanding of those terms.
As in Ah Quin, Plaintiff here filed false (materially
incomplete) bankruptcy schedules and did not amend those
schedules until Defendant filed a motion to dismiss this
action, suggesting that her omission had not been inadvertent.
But unlike in Ah Quin, Plaintiff presented no evidence, by
affidavit or otherwise, explaining her initial failure to include
6 DZAKULA V. MCHUGH
the action on her bankruptcy schedules. The district court
found:
While Dzakula amended her schedules to
reflect the pending action, she has not
provided any explanation whatsoever as to
why the pending action was not included on
her schedules in the first place. She is silent
on whether omission of the pending action
from the schedules was inadvertent or
intentional. For example, in a declaration,
Dzakula could have stated whether or not she
had knowledge of enough facts to know that
she had a potential cause of action against the
Army or whether she was, or was not, able to
engage counsel who thought enough of her
case to represent her and pursue such claims.
Even after the district court entered its order, Plaintiff did not
seek reconsideration. Nor did she ever attempt to supplement
the record with a declaration or any other evidence. And on
appeal, Plaintiff does not challenge the accuracy of the
district court’s assessment.
Instead, Plaintiff appears to argue that Ah Quin mandates
an evidentiary hearing any time a plaintiff-debtor omits a
claim on his or her bankruptcy schedules and later amends
those schedules. We disagree. As noted above, Ah Quin
remanded for further factual development because, viewing
the evidence in the light most favorable to the plaintiff-
debtor, a reasonable fact-finder could conclude that the
omission was inadvertent. On the present record, however,
particularly in light of the timing of Plaintiff’s amendment
and her choice not to file a declaration explaining her initial
DZAKULA V. MCHUGH 7
error, no reasonable fact-finder could conclude that the
omission was inadvertent or mistaken. Because the district
court applied the correct legal rule and did not otherwise err
in assessing inadvertence or mistake, Ah Quin does not help
Plaintiff.
Plaintiff also argues that the district court abused its
discretion in assessing the three main New Hampshire factors.
See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778,
782 (9th Cir. 2001) (“We review the district court’s
application of the doctrine of judicial estoppel to the facts of
this case for an abuse of discretion.”); see also New
Hampshire, 532 U.S. at 750–51 (describing the three main
factors). We disagree. As to the first factor, the district court
held that, by failing to list the claim while at the same time
pursuing the claim, Plaintiff “clearly asserted inconsistent
positions.” Hamilton, 270 F.3d at 784. Concerning the
second factor, the district court concluded that, on the facts of
this case, the bankruptcy court was misled by Plaintiff’s
omission. Cf. id. (“[A] discharge of debt by a bankruptcy
court, under these circumstances, is sufficient acceptance to
provide a basis for judicial estoppel, even if the discharge is
later vacated.”). Finally, on the third factor, the district court
held that Plaintiff derived an unfair advantage in bankruptcy
court by failing to list the claim. See id. at 785 (“Hamilton’s
failure to list his claims against State Farm as assets on his
bankruptcy schedules deceived the bankruptcy court and
Hamilton’s creditors, who relied on the schedules to
determine what action, if any, they would take in the
matter.”). Although the district court might have been within
its discretion to reach the opposite conclusion, we find no
abuse of discretion in the district court’s analysis.
8 DZAKULA V. MCHUGH
Finally, Plaintiff raises new arguments on appeal, which
we do not address. See O’Guinn v. Lovelock Corr. Ctr.,
502 F.3d 1056, 1063 n.3 (9th Cir. 2007) (holding that
arguments not raised before the district court generally are
waived).
AFFIRMED.