United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United States District Judge.
before the court is defendant NY Enterprises, Inc. d/b/a
Children's & Bridal Etc.'s (“NYE”)
motion to dismiss and, alternatively, motion for summary
judgment against plaintiff Carolina Uvina. Dkt. 13. Uvina
also filed a motion to strike exhibits attached to NYE's
motion for summary judgment. Dkt. 16. Having considered the
motions, responses, replies, evidentiary record, and the
applicable law, the court is of the opinion that the case
should be STAYED. Within ten (10) days of the date of this
order, Uvina is ORDERED to file a motion to re-open her
bankruptcy case and update her schedule to include this claim
as personal property. The bankruptcy trustee has thirty (30)
days after the bankruptcy case is re-opened to file a motion
to lift the stay and to intervene in this case should the
trustee elect to pursue this claim as an asset of the
bankruptcy estate. The court does not reach the merits of the
a dispute about unpaid overtime wages. Uvina worked full-time
as a sales representative for NYE, a Texas corporation that
sells and rents clothing and apparel. Dkt. 1. Uvina began
working for NYE in 1996 and alleges that she regularly worked
fifty hours a week and was paid a weekly salary of $300.
Id. at 2; Dkt. 15 at 2. She claims that this amount
did not include overtime pay equal to time-and-a-half of her
regular rate for any work in excess of forty hours per week.
Dkt. 1 at 2. Around 1997, Uvina complained to her employer
about the long hours she was required to work and alleges NYE
promised to double her salary from $300 to $600 per week.
Id. at 3; Dkt. 10, Ex. C. On a few occasions, NYE
made payments of $300, in addition to her current $300 weekly
salary, for a total of $600 a week. Dkt. 1 at 3. The parties
dispute whether there was an oral promise to pay Uvina $600 a
week or whether there was an arrangement for NYE to pay Uvina
$300 per week and set aside $300 per week into her retirement
account. Dkts. 1, 10, 11, 13, 15, 17. NYE admits that it paid
“bonuses in excess of her normal salary on some
occasions, ” but it denies promising Uvina a weekly
salary of $600 per week or paying Uvina overtime pay. Dkt. 5
at 4 (Def.'s Answer).
2, 2014, Uvina filed for Chapter 7 bankruptcy. Dkt. 11, Ex. A
(Uvina Bankr. Pet.). On August 26, 2014, during the pendency
of her bankruptcy, NYE terminated Uvina's employment.
Dkt. 15. On October 9, 2014, Uvina's bankruptcy was
discharged and the case was closed that same day. B.R. Dkt.
23 (Uvina Bankr. Discharge); B.R. Dkt. 24 (Bankr. Order
30, 2015, Uvina filed this lawsuit against NYE for: (1)
violations of overtime pay and minimum wage laws under the
Fair Labor Standards Act (FLSA), (2) breach of contract, and
(3) quantum meruit under Texas common
29 U.S.C. § 216(b); Dkt. 1. On December 8, 2016, NYE
filed a motion for leave to file a motion to dismiss after
the deadline to file dispositive motions had passed. Dkt. 10.
The court granted the motion for leave. Dkt. 12. On January
16, 2017, NYE filed a motion to dismiss, and alternatively, a
motion for summary judgment. Dkt. 13. Uvina filed a response
(Dkt. 15) and moved to strike the exhibits attached to
NYE's motion for summary judgment (Dkt. 16). NYE filed
its reply. Dkt. 17.
requires plaintiffs “to demonstrate: they have suffered
an ‘injury in fact;' the injury is ‘fairly
traceable' to the defendant's actions; and the injury
will ‘likely . . . be redressed by a favorable
decision.” Public Citizen, Inc. v. Bomer, 274
F.3d 212, 217 (5th Cir. 2001) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130 (1992)).
“An injury in fact [is] an invasion of a legally
protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560.
Standing is jurisdictional in nature and should be decided by
the court before reaching the merits of the case. See
Steel Co. v. Citizens for Better Env't, 523 U.S. 83,
93-94, 118 S.Ct. 103 (1998).
filing bankruptcy, debtors are under a duty to disclose all
pending and potential claims. Kane v. Nat'l Union
Fire Ins. Co., 535 F.3d 380, 385 (5th Cir. 2008). This
duty to disclose is a continuing duty and debtors have
“an express, affirmative duty to disclose all assets,
including contingent and unliquidated claims.”
In re Coastal Plains, Inc., 179 F.3d 197, 207-08
(5th Cir. 1999) (emphasis in original). “Section 541 of
the Bankruptcy Code provides that virtually all of a
debtor's assets, including causes of action belonging to
the debtor at the commencement of the bankruptcy case, vest
in the bankruptcy estate upon the filing of a bankruptcy
petition.” Kane, 535 F.3d at 385 (citing 11
U.S.C. § 541(a)(1); In re Swift, 129 F.3d 792,
795 (5th Cir. 1997) and 5 Collier on Bankruptcy §
541.08). “Causes of action need not be formally filed
prior to the commencement of a bankruptcy case to become
property of the bankruptcy estate.” Lawrence v.
Jackson Mack Sales, Inc., 837 F.Supp. 771, 779
(S.D.Miss. 1992) (collecting cases), aff'd sub nom.
Lawrence v. Jackson Mack Sales, 42 F.3d 642 (5th Cir.
trustee, as the representative of the bankruptcy estate, is
the real party in interest, and “is the only party with
standing to prosecute causes of action belonging to the
estate once the bankruptcy petition has been filed.”
Id. (citing 11 U.S.C. §§ 323, 541(a)(1);
Wieburg v. GTE Southwest, Inc., 272 F.3d 302, 306
(5th Cir. 2001)). Once an asset becomes part of the
bankruptcy estate, the debtor reclaims the asset only if the
trustee abandons it. Id. (citing Parker v.
Wendy's Int'l, Inc., 365 F.3d 1268, 1272 (11th
Cir. 2004)). “In a Chapter 7 case, ‘[a]t the
close of the bankruptcy case, property of the estate that is
not abandoned under § 554 and that is not administered
in the bankruptcy proceedings'-including property that
was never scheduled-‘remains the property of the
estate.'” Id. (quoting Parker,
365 F.3d at 1272).
argues that because Uvina's causes of action belong to
the bankruptcy estate, Uvina does not have standing as a
third-party to the estate. Dkt. 13. NYE claims that her cause
of action accrued prior to her July 2014 bankruptcy and that
Uvina failed to disclose any potential claims as an asset on
her bankruptcy schedules. Id. Uvina counters that
her cause of action did not accrue until after she spoke with
her attorney in February and April 2015 and realized her
unpaid overtime wages, quantum meruit, and breach of
contract claims were actionable. Dkt. 15. Uvina urges the
court to apply the continuing tort doctrine and fraudulent
concealment to defer the accrual period. Id.
Fifth Circuit clearly states that the accrual of a cause of
action is not the same as a statute of limitation, in which
the discovery rule tolls the limitations period until the
injured party “discovers” or with the exercise of
reasonable care and diligence should have discovered that a
particular injury has occurred. In re Swift, 129
F.3d 792, 796 (5th Cir. 1997) (“Unfortunately, many
cases applying the principles of the discovery rule are
written in terms of accrual.”). “Discovery is
relevant to the determination of when the statute of
limitations begins to run, but it is not an element necessary
for the cause of action to accrue for purposes beyond the
statute of limitations.” Id. at 798. The Fifth
Circuit held that whether a trustee or debtor owns a claim ...