The Third Circuit Applies Judicial Estoppel

Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266 (3d Cir. 2012).  “Judicial estoppel is a ‘judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent with one that [he or she] has previously asserted in the same or in a previous proceeding.'”  In this Family Medical Leave Act case, a district judge granted summary judgment against plaintiff based on judicial estoppel.  The court found that plaintiff was not permitted to contend that he was capable of returning to work at the end of his FMLA leave because he continued to receive disability benefits from his insurer for months after that date.  On appeal, the Third Circuit affirmed.  Judge Garth wrote the opinion.

The decision contains an excellent summary of the doctrine of judicial estoppel, which the Third Circuit last addressed not long ago.  Judge Garth rightly concluded that the doctrine applied here.

This opinion contains two other points worth noting.  First, Judge Garth observed that the district court’s order being appealed from stated that the claim at issue was “DISMISSED.”  Judge Garth stated that “[w]hen summary judgment is granted to the prevailing party, it is inappropriate and erroneous to dismiss the very complaint that gave rise to the summary judgment order.”  That did not affect the merits.  But it is a reminder that orders granting summary judgment should state just that, not that the underlying complaint or any part of it is “dismissed.”

Second, Judge Garth focused on the fact that although plaintiff’s notice of appeal focused only on the one claim as to which summary judgment was granted, the others having previously been resolved, plaintiff briefed other claims that had been contained in his amended complaint.  Defendant, in responding, also briefed those issues, without objection.  Judge Garth stated that the court might have chosen to limit its consideration to the issue raised in the notice of appeal, but that the court would not do so here.  That is a reminder to appellants’ counsel:  in order to be certain that an appellate court considers all your arguments, be sure that your notice of appeal is as complete as possible.