In re Kane, 628 F.3d 631 (3d Cir. 2010). It is rare to see a Third Circuit opinion, especially a precedential decision, with two pro se parties. This was such a case. The key issue was whether Mr. Kane’s estranged wife was judicially estopped from making a proof of claim in his bankruptcy proceeding.
Many attorneys see judicial estoppel as a weapon to block an opponent from taking inconsistent positions. However, as Judge Barry’s opinion for the court makes clear, an irreconcilably inconsistent position is only the first prong of a three-part test for judicial estoppel. Judicial estoppel also requires a party to have “changed his or her position in bad faith—i.e., with intent to play fast and loose with the court.” Finally, judicial estoppel may be applied only where no lesser sanction would adequately remedy the damage done by the party’s misconduct. In short, “[j]udicial estoppel is a fact-specific, equitable doctrine, applied at courts’ discretion.” On the facts here, the court affirmed the ruling of the district court that there was insufficient evidence of either an inconsistent position or bad faith by Ms. Kane.
Judicial estoppel has mutated slightly over the years since Scarano v. Central R. of N.J., 203 F.2d 510 (3d Cir. 1953), the first Third Circuit case to employ the doctrine. There, the court emphasized the plaintiff’s inconsistent positions, his success after asserting his prior position, and the effect of playing fast and loose with the court as the bases for estopping the plaintiff from changing his position. There was no express requirement of bad faith, though bad faith may be seen to have been explicit in Scarano. The overall atmospherics of judicial estoppel, however, seem less absolute than they once did. A number of cases, including Kane, have rejected judicial estoppel in circumstances where the doctrine as first formulated might well have applied. Kane reiterates that a change of position cannot be presumed to call for judicial estoppel.