UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANGELA TUCKER, )

)

Plaintiff, )

)

vs. ) 12 C 5311

)

COMMANDER PACKAGING RETIREMENT )

PLAN FOR HOURLY EMPLOYEES, )

)

Defendant. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Now before the Court is Defendant Commander Packaging Retirement Plan for

Hourly Wage Employees’ (“Commander”) motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6). For the following reasons, the motion is denied.

BACKGROUND

Plaintiff Angela Tucker (“Tucker”) is the surviving spouse of Michael Holmes

(“Holmes”). Tucker and Holmes were married from October 2003 until his death in

September 2010. Holmes was a participant of Commander’s pension plan (the “Plan”),

as defined by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1001 et seq. Holmes applied for pension benefits on January 11, 2005, and

began receiving $136.19 in monthly pension income from the Plan sometime that same

year. He continued to receive pension income until his death. The Plan provided for

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a Qualified Joint and Survivor Annuity (“Survivor’s Annuity”), under which a Plan

participant’s surviving spouse stood to collect income upon the participant spouse’s

death. On Holmes’ January 11, 2005 application, he indicated that Tucker was his

spouse on a Beneficiary Designation Form. After Holmes’ death, Tucker requested that

Commander pay her pursuant to the Survivor’s Annuity, but Commander has refused.

On November 12, 2004, Tucker petitioned for Chapter 7 bankruptcy protection

in the Bankruptcy Court of the Northern District of Illinois (“Bankruptcy Court”). The

personal property schedule of the petition required Tucker to identify any “interests in

IRA, ERISA, Keogh, or other pension or profit sharing plans.” Tucker responded,

“none.” Under the petition’s individual debtor schedule, Tucker was asked to specify

her maritalstatus:she responded “single.” On February 15, 2005, the Bankruptcy Court

discharged Tucker of her debts pursuant to 11 U.S.C. § 727. Tucker made no

modifications to her petition. Tucker submits an affidavit stating that a representative

with the Legal Assistance Foundation (“LAF”) helped her fill out the bankruptcy

petition. The representative completed the petition by obtaining Tucker’s Social

Security number from her and finding information relating to Tucker’s debt on the

internet. Tucker further states that the representative asked for no other information

pertinent to the bankruptcy petition.

Tucker commenced this suit under ERISA, 29 U.S.C. § 1001 et seq., seeking

payment of the Survivor’s Annuity. Commander now moves the Court to dismiss the

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claim under Rule 12(b)(6), arguing that Tucker’s incorrect responses on the bankruptcy

petition serve to judicially estop her from maintaining the lawsuit.

LEGAL STANDARD

Generally, when the Court looks to matters outside of the pleadings in deciding

a motion to dismiss, the motion must be converted to one for summary judgment under

Federal Rule of Civil Procedure 56. Fed. R. Civ. P. 12(d); GE Capital Corp. v. Lease

Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). A narrow exception to this rule

allows the Court to take judicial notice of matters of public record. GE Capital Corp.,

128 F.3d at 1080. Furthermore, in attempting to defeat a motion to dismiss, a plaintiff

may add additional allegations to its complaint via affidavit or brief, so long as the

statements therein are consistent with the complaint. Help at Home Inc. v. Med.

Capital, LLC, 260 F.3d 748, 752-53 (7th Cir. 2001).

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint.

Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001). The allegations

in the complaint must set forth a “short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff need not provide

detailed factual allegations; it must only provide enough factualsupport to raise itsright

to relief above a speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). Furthermore, a viable claim must be facially plausible, a requirement that is

satisfied “when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). In assessing a motion to dismiss, the Court accepts

all well pled facts as true and draws all permissible inferences in the plaintiff’s favor.

Agnew v. NCAA, 683 F.3d 328, 334 (7th Cir. 2012).

DISCUSSION

Commander argues that Tucker should be judicially estopped from bringing the

suit because the incorrect responses on the petition were made knowingly, and Tucker

benefitted from the alleged misrepresentations, to her creditors’ and the Bankruptcy

Court’s detriment. The doctrine of judicial estoppel “protect[s] the integrity of the

judicial process . . . by prohibiting parties from deliberately changing positions

according to the exigencies of the moment.” Jarrard v. CDI Telecomms., Inc., 408 F.3d

905, 914 (7th Cir. 2005); quoting New Hampshire v. Maine, 532 U.S. 742, 749-50

(2001). While judicial estoppel is an equitable remedy not readily reducible to a rigid

test, the Supreme Court in New Hampshire articulated three factors that act as “general

guideposts that must be considered in the context of all the relevant equities in any

given case.” In re Knight-Celotex, No. 11-3588, 2012 U.S. App. LEXIS 18642, at *15-

16 (7th Cir. Sept. 5, 2012) (citation omitted). Those factors turn on whether: (1) a

party’s position is clearly inconsistent with a position taken earlier; (2) the party

prevailed on the basis of the prior position; and (3) “the party asserting the inconsistent

position would derive an unfair advantage, or impose an unfair detriment on the

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opposing party if not estopped.” Jarrard, 408 F.3d at 914-15, citing New Hampshire,

532 U.S. at 750-51. Notwithstanding the New Hampshire factors, the Court decides

whether judicial estoppel is an appropriate remedy in consideration of all the relevant

equities. In re Knight-Celotex, 2012 U.S. App. LEXIS 18642, at *15-16; citing Biesek

v. Soo Line R.R. Co., 440 F.3d 410, 413 (7th Cir. 2006).

In asserting that Tucker knowingly falsified her bankruptcy petition, Commander

essentially argues that Tucker’s incorrect answers on the bankruptcy petition amount

to perjury under 18 U.S.C. § 152. Section 152 prohibits individuals from “knowingly

and fraudulently . . . conceal[ing]” a debtor’s property. United States v. Ellis, 50 F.3d

419, 422 (7th Cir. 1995) (citation and quotation omitted). “The essence of the offense

under § 152 is the making of a materially false statement or oath with the intent to

defraud the bankruptcy court.” Id. (citation and quotation omitted). In her affidavit,

Tucker states that the bankruptcy petition was completed by the LAF representative

who obtained information pertaining to Tucker’s debts on the internet upon procuring

Tucker’s Social Security number. Tucker further alleges that the representative asked

no more pertinent questionsregarding the petition. Commander responds that Tucker’s

signature conclusively demonstrates her knowledge that the petition misrepresented her

marital status and her interest in the Plan. In light of Tucker’s affidavit stating that she

was unaware that her responses was incorrect, Tucker’s signature merely creates a

question of fact as to her state of mind pertaining to the petition. See United States v.

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White, 879 F.2d 1509, 1511 (7th Cir. 1989) (it is a “fact of life for a jury to consider in

determining how likely it is that a defendant who signed a document knew what was in

it.”). Accepting Tucker’s well pled allegations and drawing all permissible inferences

in her favor, we find that Commander falls short of demonstrating Tucker was aware

that her responses were incorrect.

Moreover, Commander is unable to show that Tucker’s false statements were

material to the discharge of her debt. Under Illinois and federal law, a debtor’s interest

in an ERISA plan is treated as a spendthrift trust and is exempt from the bankruptcy

estate. 735 ILCS 5/12-1006; 11 U.S.C. § 541(c)(2); Patterson v. Shumate, 504 U.S. 753

(1992). Accordingly, Tucker gained no pecuniary benefit, and her creditors were

deprived of no bankruptcy proceeds as a result of her failing to indicate her interest in

the Plan. Commander also contendsthat Tucker’s misidentification of her maritalstatus

deprived creditors of the opportunity to seek recovery of Tucker’s debts from Holmes.

In Illinois, creditors may seek satisfaction of a debt from a debtor’s spouse if the debt

arises from the purchase of family necessities or the spouses’ children’s education. 750

ILCS 65/15. In addition, the Bankruptcy Code permits creditors to reach property that

the debtor owns as a tenant in common, a joint tenant, or a tenant by the entirety. 11

U.S.C. § 363(h)-(j); In re Hunter, 970 F.2d 299, 303 (7th Cir. 1992). Notwithstanding

these potential avenues available to creditorsfor recovery, Commandersubmits nothing

suggesting that Tucker’s marital status affected her discharge or harmed her creditors.

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Creditors’ mere possibility to recover from Holmes is not enough to demonstrate that

Tucker actually benefitted from her marital status as indicated on the petition.

Because at this stage of the case we infer that Tucker’s incorrect responses were

made without her knowledge and that the responses conferred no benefit to Tucker to

the detriment of her creditors and the Bankruptcy Court, we find that Tucker did not

“derive an unfair advantage, or impose[d] an unfair detriment on” Commander by

bringing this lawsuit. See Jarrard, 408 F.3d at 914-15 (citation omitted). Accordingly,

the equitiesfavor denying Commander’s motion to dismiss based on the existing record.

CONCLUSION

For the aforementioned reasons, Commander’s motion to dismiss is denied.

Charles P. Kocoras

United States District Judge

Dated: October 11, 2012

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