FILED
NOT FOR PUBLICATION MAR 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GEORGE G. BENETATOS, No. 08-17648
Plaintiff - Appellant, D.C. No. 4:06-cv-06819-SBA
and
*
CHOULOS, CHOULOS & WYLE, LLC, MEMORANDUM
Plaintiff,
v.
HELLENIC REPUBLIC,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted March 12, 2010
San Francisco, California
Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.
Benetatos appeals from the district court’s judgment on the pleadings, which
deemed his claims against the Hellenic Republic barred by the doctrine of judicial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
estoppel. We review the district court’s application of judicial estoppel to the facts
of this case for abuse of discretion, Hamilton v. State Farm Fire & Cas. Co., 270
F.3d 778, 782 (9th Cir. 2001), and we affirm.
Benetatos, an attorney, filed a Chapter 13 bankruptcy petition on April 22,
2004. He filed the required schedules of assets and debts on May 27, 2004, but
disclosed no claim against the Hellenic Republic. Benetatos filed a First Amended
Chapter 13 Plan and schedules on July 12, 2004. Again, no claim against the
Republic was disclosed. “In the bankruptcy context, a party is judicially estopped
from asserting a cause of action not raised in a reorganization plan or otherwise
mentioned in the debtor’s schedules or disclosure statements.” Id. at 783; see also
Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 (9th Cir. 1992).
Bentatos raises two contentions.
Benetatos first argues that the district court failed to weigh “countervailing
equitable considerations.” When reviewing for abuse of discretion, as here, we
will reverse only if we hold a “definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached upon a weighing
of the relevant factors.” Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir. 1996).
The district court did not abuse its discretion in its assessment of the factors
concerning judicial estoppel, because Benetatos’s position in this action is clearly
inconsistent with his earlier position, and he achieved success in the prior
proceeding by obtaining plan confirmation and a bankruptcy discharge. See New
Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (setting forth commonly
considered factors in judicial estoppel determinations); Hamilton, 270 F.3d at 784
(in bankruptcy context, failure to disclose an asset is a prior inconsistent position);
An-Tze Cheng v. K & S Diversified Invs., Inc. (In re An-Tze Cheng), 308 B.R. 448,
453-54 (B.A.P. 9th Cir. 2004) (plan confirmation and discharge may qualify as
acceptance of the accuracy of schedules for judicial estoppel purposes).
As to his second contention, regarding those fees and costs allegedly
incurred post-petition, Benetatos argues that he was under no duty to disclose these
receivables. But, the claim for post-petition fees was, and remains, property of the
Chapter 13 estate. 11 U.S.C. §§ 541, 1306. In Hamilton, we invoked judicial
estoppel to bar a debtor from proceeding on a cause of action where the debtor
“fail[ed] to amend his schedules or disclosure statements to identify the cause of
action as a contingent asset.” 270 F.3d at 784. Benetatos’s contention is at odds
with his duty of disclosure.
AFFIRMED.