United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
December 19, 2006
FOR THE FIFTH CIRCUIT
_______________________ Charles R. Fulbruge III
Clerk
No. 04-11213
_______________________
KIM W. LUBKE,
Plaintiff-Appellee,
versus
CITY OF ARLINGTON, ET AL.,
Defendants,
CITY OF ARLINGTON,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas, Fort Worth Division
No. 4:02-CV-188-Y
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ORDER ON PETITION FOR REHEARING
Before JONES, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for rehearing is DENIED;
and the mandate for our opinion filed June 30, 2006 is hereby
issued.
Therefore, as we stated in that opinion, the case is
remanded to the district court to recalculate damages. We note that
after entry of final judgment by the district court, after the
issuance of our opinion on appeal, and after the submission of a
petition for panel rehearing, it was brought to this Court’s
attention that Lubke filed for bankruptcy on June 10, 2005. In his
bankruptcy filing, Lubke did not disclose his judgment against the
City of Arlington. Subsequently, a motion to revoke discharge was
filed, and an agreed judgment revoking discharge has been entered
in the bankruptcy court.
Citing Lubke’s bankruptcy filing and nondisclosure of the
judgment, the City has asked this Court to judicially estop Lubke
from asserting his FMLA case on appeal. Because of the timing of
Lubke’s bankruptcy filing, judicial estoppel was not addressed
below. And the record here is not sufficiently developed for this
Court to decide the issue.
It is also ORDERED, therefore, that on remand, the
district court shall determine in the first instance, with an
evidentiary hearing if necessary, whether judicial estoppel
applies. See In re Coastal Plains, 179 F.3d 197, 210 (5th Cir.
1999).
Following the district court's determinations regarding
damages and judicial estoppel, any appeal of those determinations
should be returned to this panel; and we retain jurisdiction during
the pendency of the remand. See Wheeler v. City of Columbus,
686 F.2d 1144, 1154 (5th Cir. 1982).
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