                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                              FILED
                           FOR THE NINTH CIRCUIT
                                                                               JUN 14 2018
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
CURT CLIFT,                                      No.   15-35695

              Plaintiff-Appellant,               D.C. No. 2:14-cv-00152-LRS

 v.
                                                 MEMORANDUM*
BNSF RAILWAY COMPANY,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Lonny R. Suko, District Judge, Presiding

                        Argued and Submitted June 4, 2018
                               Seattle, Washington

Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
      Curt Clift appeals from the dismissal of his Federal Railway Safety Act

claim. We affirm.1

      1. Federal Rule of Civil Procedure 17. On appeal, both parties cite a de novo

standard of review, but we have held that we review “Rule 17 determinations for

abuse of discretion.” Jones v. Las Vegas Metro. Police Dep’t, 873 F.3d 1123, 1128

(9th Cir. 2017). It is clear from the order dismissing Clift’s case that the district

court considered all of the record evidence presented to it and held that Clift was

not entitled to the protections of Rule 17(a)(3), because “determination of the right

party to sue” was not “difficult” and Clift’s mistake was not “understandable.” U.S.

for Use & Benefit of Wulff v. CMA, Inc., 890 F.2d 1070, 1074 (9th Cir. 1989). To

the extent the district court applied a summary judgment standard in its analysis, it

gave Clift more benefit of the doubt than he was entitled by viewing the facts in

the light most favorable to him. The district court relied on the following evidence

in reaching its conclusion.

      •        Clift participated in his “OSHA Complaint just 11 weeks prior to
               filing Bankruptcy.”
      •        Clift requested in the OSHA proceeding “that BNSF be ordered to pay
               . . . all compensatory damages, and punitive damages (up to
               $250,000).”
      •        OSHA interviewed Clift in the presence of his attorneys regarding his
               claim one week prior to filing bankruptcy.


      1
          The motion for judicial notice is denied.
                                            2
      •      Prior to filing his complaint in federal court, “Clift was told by one of
             his attorneys that he needed to ‘fix’” his bankruptcy filings to correct
             the failure to disclose the claim at issue in this case.
      •      Although Clift’s original bankruptcy attorney expressed a
             “willingness to represent Clift” in fixing the problem in the
             bankruptcy court, Clift did nothing to fix the omission at that time.

This evidence is sufficient to affirm the district court’s determination that the

protections of Rule 17(a)(3) did not apply, because Clift’s mistake in filing the

claim in his own name was not honest and understandable.

      Moreover, we cannot, as Clift requests, remand for the district court to

substitute the bankruptcy trustee as the real party in interest. After the district

court’s judgment in this case, the bankruptcy court closed Clift’s bankruptcy case

and discharged the trustee, resulting in the abandonment of any unadministered

property—including the claim against BNSF that Clift had belatedly disclosed on

his amended schedules. See 11 U.S.C. § 554(c); Dzakula v. McHugh, 746 F.3d

399, 400 & nn.1–2 (9th Cir. 2014).

      2. Judicial Estoppel. Judicial estoppel is an equitable doctrine, so we review

the district court’s ruling for an abuse of discretion. Ah Quin v. Cty. of Kauai Dep’t

of Transp., 733 F.3d 267, 270 (9th Cir. 2013). “Although judicial estoppel is

‘probably not reducible to any general formulation of principle,’” we have

identified three factors that “typically inform the decision whether to apply the



                                            3
doctrine in a particular case.” See id. “First, a party’s later position must be ‘clearly

inconsistent’ with its earlier position.” Id. (quoting New Hampshire v. Maine, 532

U.S. 742, 750 (2001)). “Second, courts regularly inquire whether the party has

succeeded in persuading a court to accept that party’s earlier position, so that

judicial acceptance of an inconsistent position in a later proceeding would create

the perception that either the first or the second court was misled.” Id. (quoting

New Hampshire, 532 U.S. at 750)). Third, courts consider “whether the party

seeking to assert an inconsistent position would derive an unfair advantage or

impose an unfair detriment on the opposing party if not estopped.” Id. (quoting

New Hampshire, 532 U.S. at 751)).

      Each of these factors was clearly met. In 2011, Clift represented to the

bankruptcy court that he did not have any claims (when he actually did), and the

bankruptcy court relied on Clift’s omission in granting him a discharge on

September 28, 2011. On December 19, 2013, Clift filed this suit in the district

court, raising a retaliation claim incurred in 2010 (before his bankruptcy was filed).

Judicial acceptance of this inconsistent position would create the perception that

the bankruptcy court was misled. Only when the bankruptcy was disclosed in

discovery and BNSF filed a motion to dismiss did Clift move to reopen his

bankruptcy and solve the problem he had created. Absent “inadvertence or


                                            4
mistake,” the fact that Clift reopened the bankruptcy case and amended his

schedules is “irrelevant to the analysis of judicial estoppel.” Id. at 273. For the

reasons articulated above, the district court properly rejected Clift’s claim of

inadvertence or mistake.

      AFFIRMED.




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