Velimir Pavlov v. Ingles Markets, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 6, 2007
No. 06-16011 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-01647-CV-JOF-1
VELIMIR PAVLOV,
DUMITRA PAVLOV,
Plaintiffs-Appellants,
versus
INGLES MARKETS, INC.,
GWINNETT COUNTY,
Defendants-Appellees,
GREG TOLBERT, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 6, 2007)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Velimir and Dumitra Pavlov (collectively “the Pavlovs”), proceeding pro se,
appeal the district court’s April 11, 2006, grant of summary judgment to defendant
Ingles Markets, Inc. (“Ingles”) on various state-law claims, and the district court’s
subsequent denial of a motion to reconsider.1 The district court granted Ingles
summary judgment, finding that Velimir Pavlov was judicially estopped from
pursuing these claims because he had failed to disclose the instant litigation as an
asset in his Chapter 13 bankruptcy.2
“We review the district court's application of judicial estoppel for abuse of
discretion.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1284 (11th Cir.
2002) (internal citation omitted). We review the denial of a motion to reconsider
for an abuse of discretion. Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla.
Dept. of Health and Rehab. Serv., 225 F.3d 1208, 1216 (11th Cir. 2000).
After careful consideration of the briefs of the parties, and thorough review
1
The district court had previously granted summary judgment to defendants Gwinnett
County, police officer C.E. Morris, and police chief W.H. Dean (collectively, “the Gwinnett County
defendants”), and had dismissed defendant Greg Tolbert from the case. While the Pavlovs’
identified this March 22, 2005, order in their notice of appeal, they do not argue these issues on
appeal and have, therefore, abandoned them. See Allison v. McGhan Medical Corp., 184 F.3d 1300,
1317 n. 17 (11th Cir. 1999).
2
As a debtor in a Chapter 13 bankruptcy, Velimir Pavlov retains standing to pursue legal
claims. See Crosby v. Monroe County, 394 F.3d 1328, 1331 n.2 (11th Cir. 2004).
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of the record, we find no reversible error. The district court correctly determined
that judicial estoppel could be applied against the Pavlovs’ claims, despite any
interest of the bankruptcy Trustee in the causes of action as the property of Velimir
Pavlov’s bankruptcy estate. See Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282,
1284 (11th Cir. 2002); De Leon v. Comcar Indus., Inc., 321 F.3d 1289 (11th Cir.
2003). Although we held in Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268 (11th
Cir. 2004), that the district court had abused its discretion in applying judicial
estoppel because the plaintiff’s cause of action was the property of her Chapter 7
bankruptcy estate, we find that case distinguishable. In Parker, judicial estoppel
could not be applied against the bankruptcy Trustee who had made no inconsistent
statements and who had intervened as a party-plaintiff in the underlying lawsuit;
however, in this case there has been no appearance of any Trustee, through
intervention or otherwise. The record in this case leads us to conclude that there
was no abuse of discretion in the application of judicial estoppel or in the denial of
Pavlovs’ motion to reconsider.
AFFIRMED.
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