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                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-14739
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:17-cv-03329-TWT



LAWYER J. HENDERSON,
and all employees in similar situations,

                                                                Plaintiff-Appellant,

                                           versus

KEVIN FRANKLIN,
U.S. SECURITY ASSOCIATES, INC.,
ALDI’S,

                                                             Defendants-Appellees.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                   (July 1, 2019)

Before WILLIAM PRYOR, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:
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      Lawyer Henderson, proceeding pro se, appeals the district court’s grant of

summary judgment to his former employer U.S. Security Associates, Inc.

(“USSA”). Henderson sued USSA under the Fair Labor Standards Act (“FLSA”).

Before filing the action, Henderson filed for bankruptcy. The district court

concluded that the bankruptcy trustee, not Henderson, was the real party in interest

and that the doctrine of judicial estoppel barred his claims. The district court then

granted USSA’s request for an award of costs. Henderson argues that the district

court erred in concluding that he was not the real party in interest and abused its

discretion in applying judicial estoppel and awarding costs to USSA. We affirm the

order granting summary judgment and the order awarding costs.

                                 I.     Background

      On March 3, 2017, Henderson, through counsel, filed a petition for Chapter

13 bankruptcy. In response to the question on the property schedule which asked

whether he had any “[c]laims against third parties, whether or not [he had] filed a

lawsuit or made a demand for payment.” Henderson responded “no” and filed the

schedule. On June 19, 2017, he filed an amended property schedule, which

changed the answer about claims against third parties to “yes,” listed a “Potential

[personal injury] claim against MARTA,” and explained that the “[d]ebtor has not

yet received an offer and does not have an attorney in this matter.” On September

1, 2017, the same day that he filed his complaint in this case, Henderson moved



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pro se to convert his Chapter 13 petition to a Chapter 7 petition. On January 8,

2018, Henderson amended his petition to add creditors. The bankruptcy court

discharged Henderson’s debts on January 22, 2018.

      While his bankruptcy case was ongoing, on September 1, 2017, Henderson

filed the complaint in this matter. He alleged that his employer, USSA, had

required him to work “off the clock,” failed to keep accurate time sheets, failed to

pay him overtime wages, and deducted maintenance and uniform fees from his

wages in violation of the FLSA. Henderson also alleged that he was fired in

retaliation for complaining about these violations. On May 23, 2018, USSA filed a

motion for summary judgment, arguing that Henderson’s claims were barred by

judicial estoppel because he represented to the bankruptcy court that no such

claims existed. USSA also argued in the alternative that Henderson lacked standing

because the bankruptcy trustee was the real party in interest and therefore the only

party with standing to pursue the claims.

      The district court granted the motion for summary judgment in the present

case on October 17, 2018, concluding that Henderson’s claim was judicially

estopped because he took an inconsistent position in the bankruptcy proceeding

with the intent to mislead the bankruptcy court. The district court explained that

Henderson had not included his FLSA claims in his initial petition or in any other

filing with the bankruptcy court, failed to list the claims even though the property



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schedule expressly asked for claims that had not yet been filed, was likely aware of

his claims at the time he filed for bankruptcy, and amended his schedule to include

his claims against MARTA but not those against USSA. The district court also

considered Henderson’s level of sophistication as a factor weighing against a

finding of intent but found the other factors outweighed it. The district court also

agreed with USSA that Henderson lacked standing to pursue his claims because his

cause of action became part of the Chapter 7 bankruptcy estate, and, therefore, the

bankruptcy trustee was the only party with standing to pursue the claims. On

November 16, 2018, USSA moved for an order of costs in the amount of

$2,655.25, which the court granted. Henderson timely appealed the order granting

summary judgment and the order taxing costs.

                                  II.    Discussion

      Our review is limited to three issues. First, Henderson argues that the district

court erred in concluding that he lacked standing. Second, Henderson argues that

the district court abused its discretion in applying judicial estoppel because his

inconsistent statements were the result of inadvertence rather than an intent to

mislead. Third, Henderson argues that the district court abused its discretion in

granting costs to USSA because USSA filed its motion too late, was not a

prevailing party, and did not show that his claims were frivolous or filed in bad

faith. Henderson attempts to raise additional issues regarding the merits of his



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FLSA claims in his initial brief, but he makes only passing reference to those

issues and offers any argument on them only in his reply brief. He also raised for

the first time in his reply brief a challenge to the district court’s denial of his

motion for reconsideration. Although we read briefs filed by pro se litigants

liberally, we do not consider issues raised for the first time in a pro se litigant’s

reply brief. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Nor do we

consider issues raised only by passing reference without substantial argument.

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014).

                     A. Applicable Bankruptcy Law Principles

      The start of a bankruptcy case creates an estate made up of nearly all the

debtor’s assets. 11 U.S.C. § 541(a)(1). The estate includes “all legal or equitable

interests of the debtor in property as of the commencement of the case.” Id. In a

Chapter 13 proceeding, the debtor’s assets, including his pre-petition assets, are

returned to him after the bankruptcy court approves of a proposed repayment plan.

Slater v. U.S. Steel Corp., 871 F.3d 1174, 1179–80 (11th Cir. 2017) (en banc).

However, in a Chapter 7 proceeding, the debtor forfeits his pre-petition assets,

which are liquidated by the Chapter 7 trustee, but his post-petition earnings and

acquisitions are shielded from creditors, giving the debtor “an immediate fresh

start and a break from the financial past.” Id. at 1179. When a case is converted

from a Chapter 13 proceeding to a Chapter 7 proceeding, the Chapter 7 estate



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consists of all property belonging to the debtor as of the date that the original

Chapter 13 petition was filed. Harris v. Viegelahn, 135 S. Ct. 1829, 1837 (2015).

      Causes of action belonging to a debtor at the initiation of his bankruptcy

case become part of the bankruptcy estate. Parker v. Wendy’s Int’l., Inc., 365 F.3d

1268, 1272 (11th Cir. 2004). When a debtor’s assets include a civil claim, that

claim will be treated differently depending on whether the debtor seeks discharge

under Chapter 7 or Chapter 13. Slater, 871 F.3d at 1180. A Chapter 13 debtor

retains standing to pursue his civil claim. Id. However, after a cause of action

becomes part of a Chapter 7 bankruptcy estate, the trustee, as the representative of

the estate, becomes the only party with standing to bring that cause of action.

Parker, 365 F.3d at 1272. The rights of the debtor to that cause of action are thus

eliminated, unless the trustee abandons the property under 11 U.S.C. § 554. Id.

However, where the cause of action was not listed on the property schedule so that

the trustee does not know about it, the cause of action cannot be abandoned and

remains in the bankruptcy estate once the bankruptcy case is closed. Parker,

365 F.3d at 1272 (citing Mobility Sys. & Equip. Co. v. United States, 51 Fed. Cl.

233, 236 (Fed. Cl. 2001); Vreugdenhill v. Navistar Int’l Transp. Corp., 950 F.2d

524, 525–26 (8th Cir. 1991)).




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                               B. Summary Judgment

      We review the district court’s application of judicial estoppel for abuse of

discretion and its factual findings for clear error. Robinson v. Tyson Foods, Inc.,

595 F.3d 1269, 1273 (11th Cir. 2010). The doctrine of judicial estoppel is intended

to “prevent the perversion of the judicial process and protect its integrity . . . by

prohibiting parties from deliberately changing positions according to the

exigencies of the moment.” Slater v. United States Steel Corp., 871 F.3d 1174,

1180 (11th Cir. 2017) (en banc) (quoting New Hampshire v. Maine, 532 U.S. 742,

749–50 (2001) (alterations adopted)).

      Henderson suggests that the district court applied the wrong test for

determining whether judicial estoppel applies. The Supreme Court developed a

three-part test that “typically inform[s]” the decision of whether to apply judicial

estoppel: (1) whether the position is clearly inconsistent with the earlier position;

(2) whether the party succeeded in persuading a court to accept its earlier position

such that it “would create the perception that either the first or the second court

was misled”; and (3) whether the party, if not estopped, would “derive an unfair

advantage or impose an unfair detriment on the opposing party.” New Hampshire,

532 U.S. at 750–51 (quotation marks omitted). In addition to this three-part test,

the Court instructed that “judicial estoppel must not be applied to an inadvertent




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inconsistency.” Id. at 753. Henderson suggests that the district court should have

applied this test, including the inadvertence standard, to his claims.

      The Supreme Court recognized in New Hampshire that its test was not an

“exhaustive formula for determining the applicability of judicial estoppel.” Id. at

751. And in light of that recognition, our precedent on inadvertence, and the fact

that the party invoking judicial estoppel was not a party in the other proceeding,

this Court has developed a two-part test to determine whether a party is judicially

estopped from pursuing his claims because he did not disclose them to the

bankruptcy court. Under that test, the court asks (1) whether the party took

inconsistent positions under oath in separate proceedings, and (2) whether those

inconsistent positions were “calculated to make a mockery of the judicial system.”

Slater, 871 F.3d at 1181 (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282,

1285 (11th Cir. 2002) overruled on other grounds by Slater, 871 F.3d at 1185 &

n.10). The district court did not err by applying this two-part test.

      The district court did not abuse its discretion in finding step one satisfied

here. Step one is satisfied when the plaintiff fails to disclose a claim against a third

party in a bankruptcy proceeding (regardless of the chapter) and then pursues that

claim in court. Id. at 1180. When he filed his Chapter 13 bankruptcy petition,

Henderson was asked to list all “claims against third parties, whether or not [he

had] filed a lawsuit or made a demand for payment,” to which he responded “no.”



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Henderson then amended his bankruptcy schedule numerous times without

disclosing this lawsuit.

       As for step two, this Court’s precedent previously “treated the fact of the

plaintiff’s omission as establishing the requisite intent.” Id. However, this Court

sitting en banc clarified in Slater that the district court must examine all the facts

and circumstances of the case in determining whether the plaintiff intended to

make a mockery of the judicial system. Id. at 1180, 1185. To guide the district

courts in this determination, this Court has explained that

      the court may consider such factors as the plaintiff’s level of
      sophistication, whether and under what circumstances the
      plaintiff corrected the disclosures, whether the plaintiff told his
      bankruptcy attorney about the civil claims before filing the
      bankruptcy disclosures, whether the trustee or creditors were
      aware of the civil lawsuit or claims before the plaintiff amended
      the disclosures, whether the plaintiff identified other lawsuits to
      which he was party, and any findings or actions by the
      bankruptcy court after the omission was discovered.

Id. at 1185. This list of factors is not exhaustive, and the court can “consider any

fact or factor it deems relevant to the intent inquiry.” Id. at 1185 n.9.

      The district court did not abuse its discretion in determining, based on all of

the facts and circumstances, that Henderson intended to make a mockery of the

judicial system. As the district court explained, Henderson failed to include his

FLSA claims in his initial bankruptcy petition and also in several amendments and

other filings he made to the bankruptcy court. See id. at 1185; see also Weakley v.



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Eagle Logistics, 894 F.3d 1244, 1246 (11th Cir. 2018) (considering the fact that the

plaintiff failed to include his lawsuits in any of his six separate amendments to his

schedules and filings as evidence that he intended to mislead).1 The district court

also considered that Henderson was specifically asked on his property schedule to

list any claims “whether or not [he had] filed a lawsuit or made a demand for

payment.” That question directly rebuts Henderson’s argument that his

inconsistency should be excused because he did not know that he had to disclose

unfiled claims. Also supporting the finding of intent is the fact that Henderson

amended his bankruptcy schedule to include another potential personal injury

claim against MARTA. As the district court explained, Henderson’s “disclosure of

that potential lawsuit while omitting this action shows that he understood the

requirement to amend his disclosures but nonetheless chose not to disclose this

action.” See Weakley, 894 F.3d at 1246 (noting that the plaintiff’s failure to disclose

two lawsuits while not disclosing two others weighed in favor of a finding of




       1
          Henderson argues that this factor is negated by the fact that he eventually corrected his
bankruptcy petition. That argument fails for two reasons. First, he did not present that
information until his motion for reconsideration, and he failed to raise any issue regarding the
motion for reconsideration in his initial brief. See Timson, 518 F.3d at 874. Thus, he has
abandoned the argument. Second, he did not seek to reopen his bankruptcy case to amend his
property schedule until after USSA filed its motion for summary judgment. “Allowing [a debtor]
to back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his
omission has been challenged by an adversary, suggests that a debtor should consider disclosing
potential assets only if he is caught concealing them. This so-called remedy would only diminish
the necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtor’s
assets.” Burnes, 291 F.3d at 1288.


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intent).2 For these reasons, the district court did not abuse its discretion in

determining based on all of the facts and circumstances of the case that Henderson

intended to make a mockery of the judicial system by pressing his USSA claims in

one forum while denying their existence in another.

       Henderson argues that judicial estoppel should not apply because he was

represented by counsel when he filed his bankruptcy petition and amended his

schedule to include the MARTA claim, and as a result, he never saw the relevant

documents. But he has not alleged that he told his attorney about his claim against

USSA. Moreover, even if the failure to disclose the USSA claim could be

attributed to Henderson’s attorney and even if such action fell below what is

reasonable under the circumstances, his remedy is a suit against the attorney for

malpractice. See Link v. Wabash R. Co., 370 U.S. 626, 634 n.10 (1962) (explaining

that to keep a plaintiff’s suit alive in such a situation “would be visiting the sins of

plaintiff’s lawyer upon the defendant”).




       2
          Henderson suggests that Weakley is distinguishable because the district court reasoned
that the plaintiff’s disclosure of two lesser value lawsuits while failing to disclose two higher
value lawsuits indicated a motive to exclude the potentially more lucrative lawsuits. It is unclear
which of Henderson’s claims is potentially more lucrative. But this Court has never held that the
value of an undisclosed claim relative to a disclosed claim is dispositive of the estoppel issue.
The court in Weakley considered the difference in value only as relevant to the plaintiff’s intent
to deceive. As we discuss, the district court considered all the relevant facts and circumstances of
this case and concluded that Henderson intended to make a mockery of the judicial system. It did
not abuse its discretion in doing so.


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      Henderson also argues that the district court failed to consider his lack of

sophistication in applying judicial estoppel. That argument is contrary to the

district court’s opinion, which expressly stated that although Henderson’s level of

sophistication weighs against a finding that he had an intent to make a mockery of

the judicial system, the other factors weighed in favor of an intent to deceive.

Because there were significant factors weighing in the opposite direction, the

district court’s decision to apply judicial estoppel was not an abuse of discretion.

      Henderson contends that even if judicial estoppel applied to his claims for

monetary relief, he was still entitled to pursue his claims for injunctive relief. Our

precedent makes clear that judicial estoppel does not apply to an unreported claim

for injunctive relief. Burnes, 291 F.3d at 1288. The problem for Henderson is that

his complaint does not make a claim for injunctive relief. It raises only claims for

damages and for a declaration that his “rights [had] been violated.” Even if we

construe Henderson’s brief on appeal as requesting that he be able to pursue such

declaratory relief, his argument still fails. “[I]n order for this Court to have

jurisdiction to issue a declaratory judgment . . . [the plaintiff] must assert a

reasonable expectation that the injury they have suffered will continue or will be

repeated in the future.” Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342,

1347 (11th Cir. 1999). A “remote possibility” of future injury is insufficient. Id.

Because Henderson’s complaint alleges that he no longer works at USSA and he



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has not alleged any facts that would establish a likelihood of future injury by

USSA, he is not entitled to declaratory relief. The district court thus did not abuse

its discretion in determining that Henderson’s claims are precluded by judicial

estoppel.

       The district court concluded in the alternative that Henderson’s claims failed

for lack of standing because the bankruptcy trustee was the real party in interest

and thus the only party with standing to pursue the claims. USSA has brought to

this Court’s attention that while Henderson’s case was pending on appeal, the

trustee may have abandoned the claims. USSA’s statement raises questions the

district court did not have the opportunity to decide, such as whether the trustee

properly effected an abandonment under 11 U.S.C. § 554, and if so, whether

Henderson may now pursue his claims as the real party in interest. However,

because the district court did not abuse its discretion in finding that Henderson’s

claims are precluded by judicial estoppel, we need not reach this issue.3

                                      C. Award of Costs

       We review a district court’s decision to award costs for abuse of discretion.

Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007). Under Rule 54(d)(1) of

the Federal Rules of Civil Procedure, the prevailing party should generally be

       3
         Though often discussed in terms of standing, the real party in interest question is not one
of constitutional standing, which acts as a limitation on our subject-matter jurisdiction, but rather
a question of who may litigate the claim, which does not. See Barger v. City of Cartersville, 348
F.3d 1289, 1292 (11th Cir. 2003) overruled on other grounds by Slater, 871 F.3d at 1185 & n.10.


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allowed to recover certain statutorily enumerated costs, see 28 U.S.C. § 1920. That

rule creates “a strong presumption that the prevailing party will be awarded costs”

provided those costs do “not exceed those permitted by 28 U.S.C. § 1920.”

Mathews, 480 F.3d at 1276. A court may tax as costs fees for transcripts

“necessarily obtained for use in the case” and fees for witnesses. 28 U.S.C.

§ 1920(2), (3). The Federal Rules provide no time limit within which a prevailing

party must request costs, though the local rules for the Northern District of Georgia

provide that a bill of costs must be filed within 30 days after the entry of judgment,

and no costs are awarded if the bill is not timely filed. N.D. Ga. Civ. R. 54.1.

      The district court did not abuse its discretion in awarding costs to USSA

because USSA was a prevailing party and no statute, rule, or court order prohibits

the awarding of costs. Henderson’s arguments do not persuade us to the contrary.

First, Henderson argues that USSA was required to file its bill of costs within 14

days after entry of judgment, and therefore, its request was untimely. We disagree.

The Federal Rules do not provide a time limitation for filing a request for “costs

other than attorney’s fees” under Rule 54(d)(1). But the Northern District of

Georgia Civil Rules provide that a bill of costs must be filed within 30 days.

Because USSA filed its bill of costs within 30 days after the entry of judgment in

compliance with the local rules, the filing was timely.




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      Second, Henderson argues that USSA was not a prevailing party under Rule

54(d)(1) because judicial estoppel is an affirmative defense. Again, we disagree.

This Court has explained that “[u]sually the litigant in whose favor judgment is

rendered is the prevailing party for purposes of [R]ule 54(d).” Head v. Medford, 62

F.3d 351, 354 (11th Cir. 1995) (quoting United States v. Mitchell, 580 F.2d 789,

793 (5th Cir. 1978), superseded by statute on other grounds, Fair Housing

Amendments Act of 1988, Pub. L. 100–430, 102 Stat. 1619, as recognized in

United States v. City of Jackson, 359 F.3d 727, 737 (5th Cir. 2004)). Accordingly,

“[t]here is no question” that a party in whose favor the district court granted

summary judgment is a prevailing party for purposes of Rule 54(d)(1). Id. at 355.

And that rule applies even if the party prevailed on an affirmative defense. See

Myricks v. Fed. Res. Bank of Atlanta, 480 F.3d 1036, 1043 (11th Cir. 2007)

(concluding that a party that prevailed on an affirmative defense is a prevailing

party under Rule 54(d)). USSA is thus a prevailing party.

      Third, Henderson argues that USSA was not entitled to costs because it

failed to show that his claims were frivolous or pursued in bad faith. But Rule

54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order

provides otherwise, costs—other than attorney’s fees—should be allowed to the

prevailing party.” It does not require a showing of bad faith or frivolity. Henderson

appears to have imported into Rule 54(d)(1) the standard applicable for sanctions



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under Rule 11 of the Federal Rules of Civil Procedure, which provides that a

district court may award sanctions against an attorney who “pursues a frivolous

claim in bad faith.” Silva v. Pro Transp., Inc., 898 F.3d 1335, 1340 (11th Cir.

2018). But that standard does not apply in the context of an award of costs under

Rule 54(d)(1). USSA was thus not required to show bad faith or frivolity.

      USSA timely filed its request, USSA was a prevailing party, and no statute,

rule, or court order prohibited the costs award. The district court did not abuse its

discretion by awarding costs to USSA.

                                  III.   Conclusion

      The district court did not abuse its discretion in determining that judicial

estoppel precludes Henderson’s claims, which determination is sufficient to sustain

the order granting summary judgment. The district court also did not abuse its

discretion in awarding costs to USSA. We thus affirm.

      AFFIRMED.




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