     Case: 14-10999       Document: 00513153172         Page: 1     Date Filed: 08/13/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                    FILED
                                                                                August 13, 2015
                                       No. 14-10999
                                                                                 Lyle W. Cayce
                                                                                      Clerk
UNITED STATES OF AMERICA, ex rel, JOHNNY RAY (J.R.) LONG,

               Plaintiff – Appellant,

v.

GSDMIDEA CITY, L.L.C., a Delaware Limited Liability Company,

               Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas


Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
       This appeal arises from a qui tam action brought by Johnny Ray Long
against GSD&M Idea City, LLC 1 for violations of the False Claims Act (FCA). 2



       1 Appellee refers to itself as “GSD&M Idea City, LLC,” the same entity name on file
with the Delaware Department of State, however the CM/ECF caption in this case refers to
the entity as “GSDMIdea City, L.L.C.” For case administration purposes, we use the existing
caption in our CM/ECF system, but will refer to the entity as “GSD&M” throughout this
opinion.

       2 The False Claims Act allows private parties (called “relators”) to bring claims on
behalf of the United States against anyone who has submitted false or fraudulent claims to
the government. See 31 U.S.C. § 3730(b). If a relator prevails, he is entitled to a percentage
of the government’s recovery. See id. § 3730(d). At no point during this lawsuit did the
United States try to intervene on its own behalf.
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                                No. 14-10999
At the time Long filed his FCA claims, he was the debtor in a confirmed
Chapter 13 bankruptcy plan and he failed to disclose his FCA claims to the
bankruptcy court. After discovering his failure to disclose, the district court
dismissed Long’s FCA claims under the doctrine of judicial estoppel. Long
appealed, arguing that judicial estoppel should not apply because he had no
motive to conceal his FCA claims from the bankruptcy court, especially given
that his repayment plan required repaying 100% of the principal of his debts.
Because the district court did not abuse its discretion in dismissing Long’s
claims, we AFFIRM.
                                      I.
      Petitioner Johnny Ray Long filed this FCA lawsuit in June 2011 against
his then-employer, GSD&M, alleging that GSD&M misrepresented its profits
and overhead during contract negotiations with the United States Air Force
(USAF). GSD&M received contracts in 2000 and 2008 from the USAF to
develop advertising campaigns that would aid in the USAF’s recruiting efforts.
During negotiations, GSD&M submitted profit and overhead figures, certifying
that they were “current, accurate, and complete.” However, Long alleges that
the figures were inaccurate because the figures inflated GSD&M’s overhead
rate and, in effect, underestimated the amount of profit GSD&M stood to make
on the contracts. According to Long, the figures also inflated the additional
fees GSD&M would receive on the contracts.         In June 2011, while still
employed at GSD&M, Long filed this lawsuit as a relator, alleging that
GSD&M violated the FCA and defrauded the United States in its effort to
obtain “stealth profits.”
      When Long filed his FCA claims, he was subject to a confirmed Chapter
13 bankruptcy plan, part of proceedings that he initiated in November 2008,
and was paying debts according to this plan. Under Long’s plan, which was



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                                  No. 14-10999
confirmed in January 2009, he had to repay $60,000 in unsecured claims over
a five-year period.   Long was not required to repay any interest.         Long’s
bankruptcy plan also provided that “[u]pon confirmation of the plan, all
property of the estate shall not vest in the Debtor(s), and shall remain as
property of the estate subject to the automatic stay of 11 U.S.C. § 362.”
However, after discovering his FCA claims—which are considered property
under the Bankruptcy Code—Long did not disclose the FCA claims to the
bankruptcy court, the trustee of his estate, or his creditors. In 2011, he filed
the FCA claims in the district court and when his bankruptcy closed in October
2013, Long still had not informed the bankruptcy court of his claims against
GSD&M. Upon discharge of Long’s debts, the bankruptcy trustee’s final report
indicated that Long was able to discharge $4,504.91 in unsecured claims
without payment.
      While his bankruptcy was pending, and continuing after its conclusion,
Long pursued his FCA claims in the district court. During that time, the
district court ruled on several motions filed by both parties. It granted, without
prejudice, GSD&M’s initial motion to dismiss, granted leave for Long to amend
his complaint twice, and, pursuant to Rules 12(b)(6) and 9(b), ultimately
dismissed with prejudice most of Long’s FCA claims alleged in his second
amended complaint. The district court denied Long’s motion for leave to file a
third amended complaint, but allowed Long to continue pursuing his claims
that were based on a fraudulent inducement theory. The parties filed cross-
motions for summary judgment regarding this claim. The district court denied,
in part, Long’s motion for partial summary judgment, and denied GSD&M’s
motion.
      Just before trial, GSD&M discovered Long’s failure to disclose his FCA
claims to the bankruptcy court. GSD&M filed a second motion to dismiss,



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                                        No. 14-10999
arguing that because Long failed to disclose his claims, he had taken
inconsistent positions in two different matters and should therefore be
judicially estopped from continuing to pursue his FCA claims. Long argued
that he never intentionally concealed his FCA claims and that his failure to
disclose them was inadvertent. He argued that because his bankruptcy plan
required repaying 100% of the principal of his debts, he thought that there was
no need to disclose additional assets after the plan was confirmed. The district
court granted GSD&M’s motion, treating it as a motion for judgment on the
pleadings.      The district court explained that Long failed to satisfy his
“affirmative, ongoing duty to disclose [to the bankruptcy court] all assets,
including contingent and unliquidated claims and potential causes of action.”
Citing Love v. Tyson Foods, Inc., 677 F.3d 258, 261 (5th Cir. 2012), the district
court determined that Long knew about the claims and had a financial motive
to conceal them—namely, maintaining his interest-free payment plan, paying
his debts over five years rather than over a shorter period, and ensuring the
discharge of $4,504.91 in unsecured claims.
       The district court also held that Long could not personally pursue his
FCA claims even if he reopened the bankruptcy proceeding because, quoting
In re Vioxx Prods. Liability Litig., 889 F. Supp. 2d 857, 861 (E.D. La. 2012),
“[t]he Fifth Circuit’s ‘strict stance on judicial estoppel in the context of
bankruptcy filings’” prohibits it. 3 However, because Long’s FCA claims would



       3  To the extent that district courts and bankruptcy courts within our circuit have
interpreted our precedent as requiring a “strict stance” that requires applying judicial
estoppel every time the elements are met, without regard to the specific facts and equities of
the case, that interpretation is a misunderstanding of our precedent. As discussed in the text
below, infra Part II at 5–6, and as we explained in Reed v. City of Arlington, 650 F.3d 571,
574 (5th Cir. 2011) (en banc), judicial estoppel is a flexible doctrine that should be applied in
light of its purpose of protecting the judicial process. Id. (“[T]he Supreme Court has refused
to establish inflexible prerequisites or an exhaustive formula for determining the
applicability of judicial estoppel . . . .” (internal quotation marks omitted)).

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                                   No. 14-10999
have been included as assets in the bankruptcy estate had he disclosed them,
the district court gave Long’s bankruptcy trustee seven days to decide if she
wanted to continue pursuing the claims. The trustee declined.
      Long moved for reconsideration, asserting several procedural objections,
all of which the district court rejected. Long appealed the district court’s final
judgment and its orders on several motions.
                                        II.
      Long’s central argument is that the district court erred by invoking
judicial estoppel to dismiss his claims.      Judicial estoppel “is an equitable
doctrine invoked by a court at its discretion” for the purpose of “protect[ing]
the integrity of the judicial process.” New Hampshire v. Maine, 532 U.S. 742,
749–50 (2001) (internal quotation marks omitted). “[T]he Supreme Court has
refused to establish inflexible prerequisites or an exhaustive formula for
determining the applicability of judicial estoppel . . . .”      Reed v. City of
Arlington, 650 F.3d 571, 574 (5th Cir. 2011) (en banc) (internal quotation
marks omitted); see also Wright & Miller, Preclusion of Inconsistent
Positions—Judicial Estoppel, 18B Fed. Prac. & Proc. Juris. § 4477 (2d ed. 2015)
(“[Courts focus on] whether allowing a party to take seemingly inconsistent
positions in separate actions would enable the party to gain an unfair
advantage, or to impose an unfair disadvantage on its new adversary.”); 18
James Wm. Moore et al., Moore’s Federal Practice § 134.31 at 73 (3d ed. 2011)
(“[The doctrine] should be applied flexibly, with an intent to achieve
substantial justice.”).
      “[A]gainst the backdrop of the bankruptcy system . . . judicial estoppel
must be applied in such a way as to deter dishonest debtors, whose failure to
fully and honestly disclose all their assets undermines the integrity of the
bankruptcy system . . . .” Reed, 650 F.3d at 574; see also Jethroe v. Omnova



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                                 No. 14-10999
Solutions, Inc., 412 F.3d 598, 600 (5th Cir. 2005) (“Judicial estoppel is
particularly appropriate where . . . a party fails to disclose an asset to a
bankruptcy court, but then pursues a claim in a separate tribunal based on
that undisclosed asset.”). Given the doctrine’s equitable nature, we review a
trial court’s decision to invoke judicial estoppel for abuse of discretion. Kane
v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (citing Browning
Mfg. V. Mims (In re Coastal Plains, Inc.), 179 F.3d 197, 205 (5th Cir. 1998));
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997) (“[D]eference . . . is the
hallmark of abuse-of-discretion review.”).
      Because judicial estoppel is equitable in nature, trial courts are not
required to apply it in every instance that they determine its elements have
been met. Long indicated at oral argument that the district court thought its
hands were tied by our precedent, and that it had to dismiss Long’s claims
under what it believed was a per se rule when debtors fail to disclose potential
claims to a bankruptcy court. While many of our judicial estoppel cases in the
bankruptcy context involve bad faith by a dishonest party trying to conceal his
assets from creditors, Long argues that his case is different because he
mistakenly believed, on advice from his bankruptcy attorney, that he did not
have to disclose his FCA claims because his Chapter 13 plan was a 100%
repayment plan. Long is correct that there is no per se rule estopping any party
who fails to disclose potential claims to a bankruptcy court. E.g., Reed, 650
F.3d at 574 (“[D]ifferent considerations ‘may inform the doctrine's application
in specific factual contexts.’” (quoting New Hampshire, 532 U.S. at 751)).
Instead, we leave the decision to invoke judicial estoppel to the discretion of
the trial court (district court or bankruptcy court, as the case may be) in the
first instance.




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                                       No. 14-10999
       Our court, sitting en banc, has offered guidance on invoking judicial
estoppel. Courts should look to whether: “(1) the party against whom judicial
estoppel is sought has asserted a legal position which is plainly inconsistent
with a prior position; (2) a court accepted the prior position; and (3) the party
did not act inadvertently.” Reed, 650 F.3d at 574. The presence of one or more
of these elements does not mandate the invocation of judicial estoppel. Rather,
courts should determine if applying judicial estoppel is appropriate in light of
the specific facts of each case and the doctrine’s purpose of “protect[ing] the
integrity of the judicial process.” Id.
       Because the parties here agree that the first two elements are met, 4
Long’s case turns on the third element—whether he had a financial motive to
conceal his post-confirmation claims from the bankruptcy court or instead
acted inadvertently.         To be sure, if a debtor’s failing to disclose was
inadvertent, judicial estoppel is inappropriate; but inadvertence exists “only
when, in general, the debtor either lacks knowledge of the undisclosed claims
or has no motive for their concealment.” In re Coastal Plains, 179 F.3d at 210.
“Whether a debtor’s failure to disclose claims was inadvertent presents a
question of fact” reviewed for clear error. Love, 677 F.3d at 262. Long argued
before the district court (and now argues on appeal) that his failure was
inadvertent on both grounds. The district court found that Long knew about



       4 It is “well settled” that “Chapter 13 debtors have a continuing obligation to disclose
post-petition causes of action.” Flugence v. Axis Surplus Ins. Co. (In re Flugence), 738 F.3d
126, 129 (5th Cir. 2013) (citing Browning Mfg. v. Mims (In re Coastal Plains), Inc., 179 F.3d
197, 207–08 (5th Cir. 1999)). “Any claim with potential must be disclosed, even if it is
contingent, dependent, or conditional.” In re Coastal Plains, 179 F.3d at 208 (internal
quotation marks omitted). A debtor’s silence “impliedly represent[s] that she ha[s] no such
claim.” In re Flugence, 738 F.3d at 130 (citing Superior Crewboats, Inc. v. Primary P & I
Underwriters (In re Superior Crewboats, Inc.), 374 F.3d 330, 335 (5th Cir. 2004)). And, to
later raise the claim in a separate proceeding is “plainly inconsistent” with the implied
representation in bankruptcy court. In re Flugence, 738 F.3d at 130.

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                                   No. 14-10999
his claims while his bankruptcy was still pending and, given the beneficial
terms in his bankruptcy plan, had a motive to conceal. In light of these
findings, the district court determined that applying judicial estoppel was an
appropriate remedy. As discussed below, these findings are supported by the
record.
                                         A.
      To show inadvertence through lack of knowledge, a debtor “must show
not that she was unaware that she had a duty to disclose her claims but that
. . . she was unaware of the facts giving rise to them.” Jethroe, 412 F.3d at 601.
“Bankruptcy law imposes [the duty to disclose] as long as the debtor has
enough information to suggest that he may have a potential claim; the debtor
need not know all of the underlying facts or even the legal basis of the claim.”
U.S. ex rel. Spicer v. Westbrook, 751 F.3d 354, 362 (5th Cir. 2014). The district
court found that Long was aware of the facts underlying his claims as early as
2010 and Long filed this lawsuit in 2011, at about the halfway point in his five-
year bankruptcy plan. See id. at 363 (holding that drafting and disclosing a
complaint was sufficient to show knowledge). Long argues, without supporting
authority, that the test for knowledge is different where claims are filed on
behalf of the United States in a qui tam action like the one here. In Long’s
view, “it is less realistic to expect a third party to recognize a potential interest
in a potential right of action belonging to someone else, specifically, the
Government.” Regardless of whether the government has the primary interest
in the lawsuit, the party who files a qui tam action under the FCA has his own
interest at stake and is deemed to have knowledge of this interest (at the very
latest) when he files the claims. See Spicer, 751 F.3d at 362–63 (holding that
disclosure obligation was triggered for debtor whose estate was the relator in
a qui tam action); cf. Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S.



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                                       No. 14-10999
765, 773–74 (2000) (explaining that the FCA “effect[s] a partial assignment of
the Government’s damages claim” and a relator’s interest is sufficient to create
standing).
                                              B.
       A motivation to conceal may be shown by evidence of a potential financial
benefit that could result from concealment. Love, 677 F.3d at 262. As noted
by the district court, there were three terms particularly beneficial to Long in
his bankruptcy plan: (1) he was not required to pay any interest on his debts;
(2) he was given five years (rather than a shorter period) to repay the principal
on his debts; and (3) $4,504.91 in unsecured claims were discharged. As the
district court explained, had Long disclosed his FCA claims, his creditors may
have sought modification and the bankruptcy court might have modified his
plan to require paying some of the interest, paying over a shorter period, or
paying some of the discharged debts. 5 As GSD&M argued, “[t]he thousands of
dollars Long stood to save on interest payments provided more than sufficient
motive for his non-disclosure.” Moreover, Long himself recognized that his
FCA claims could impact his repayment obligations under the plan. After
GSD&M informed the district court that Long had not disclosed his claims,
Long moved to reopen his bankruptcy proceeding “so that, in the event of a
recovery in this case, he may pay interest to his creditors.” 6


       5 In finding motive, the district court relied on the no-interest term and the 60-month
repayment period in Long’s plan. While the district court also noted the $4,504.91 in
discharged claims, its finding of motive did not hinge on these discharged claims—the no-
interest term and five-year period were sufficient. Even if, as Long contends, these were
disallowed claims for which the creditors never filed a proof of claim, the other plan terms
are sufficient to support the district court’s conclusion that Long had a motivation to conceal.

       6 Even if Long’s failure to disclose would not have actually harmed his creditors
because he offered to reopen the bankruptcy to include the FCA claims, it would not change
the outcome here. “‘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

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                                       No. 14-10999
       Long fails to explain why these benefits did not provide sufficient motive
for concealment. See Love, 677 F.3d at 262 (holding that after a defendant
establishes the debtor’s motive to conceal, “it [falls to the debtor] to show that
the omission of his claims from his schedule of assets was inadvertent”);
Jethroe, 412 F.3d at 601 (stating that our precedent “requires that there be ‘no’
motive for concealment”). He emphasizes that his plan was a 100% repayment
plan—meaning that the plan required paying 100% of the principal owed to
his creditors—and that he therefore had no reason to hide assets. But, the
district court found that the interest alone that Long saved provided sufficient
motive. See In re Watts, No. 09-35864, 2012 WL 3400820, at *7–8 (Bankr. S.D.
Tex. Aug. 9, 2012) (holding that an interest-free payment plan spread over five
years provides sufficient motive to conceal). The record supports this finding.
       Long argues that because inadvertence is a question of fact, see Love, 677
F.3d at 262, the issue must be decided on summary judgment rather than on a
motion to dismiss. In turn, he argues that because he raised a genuine issue
of material fact with respect to inadvertence, the case should have gone to trial.
However, where a successful affirmative defense appears on the face of the
pleadings, we have not hesitated to apply judicial estoppel to dismiss claims
under Rules 12(b)(6) or 12(c). See, e.g., Superior Crewboats, Inc. v. Primary P
& I Underwriters (In re Superior Crewboats, Inc.), 374 F.3d 330, 336 (5th Cir.
2004) (directing the district court to dismiss the plaintiffs’ claims as judicially
estopped). 7 Here, the district court treated GSD&M’s motion to dismiss as one


that a debtor should consider disclosing personal assets only if he is caught concealing them.’”
In re Superior Crewboats, Inc., 374 F.3d at 336 (quoting Burnes v. Pemco Aeroplex, Inc., 291
F.3d 1282, 1288 (11th Cir. 2002)); see also Love v. Tyson Foods, Inc., 677 F.3d 258, 265 (5th
Cir. 2012) (“[A debtor’s] assertion that he would not gain an unfair advantage if not estopped
does not speak to the issue of inadvertence . . . .”).

       7 See also Hall v. Hodgkins, 305 F. App’x 224, 227–28 (5th Cir. 2008) (unpublished)
(“If, based on the facts pleaded and judicially noticed, a successful affirmative defense

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                                        No. 14-10999
for judgment on the pleadings and in turn accepted as true all of the factual
allegations in Long’s complaint and the facts contained in Long’s bankruptcy
filings. The district court determined that Long’s allegations, along with the
judicially noticeable facts contained in his bankruptcy filings, 8 indicated that
Long had a financial motive conceal the claims. This was not an abuse of
discretion.
           Long also argues that judicial estoppel should not bar his claims
because the law was not well-settled with respect to his obligation to disclose
claims first discovered after confirmation of his plan. Long asserts that he did
not become aware of and file his FCA claims until three years after his plan’s
confirmation, at which time the law was unclear regarding his obligations
because of an inconsistency between 11 U.S.C. § 1306 and § 1327. 9 This
argument fails. Assuming arguendo that such an inconsistency exists, the
inconsistency is not relevant to Long’s case. Long’s plan specified that “[u]pon
confirmation of the plan, all property of the estate shall not vest in the
Debtor(s), and shall remain as property of the estate subject to the automatic
stay of 11 U.S.C. § 362” (emphasis in original); see Flugence v. Axis Surplus
Ins. Co. (In re Flugence), 738 F.3d 126, 129–30 (5th Cir. 2013) (holding that



appears, then dismissal under Rule 12(b)(6) is proper.”) (citing Kansa Reinsurance Co., Ltd.
v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994)); Johnson v. Deutsche Bank
Nat. Trust Co., No. 3:12-CV-3542-L, 2013 WL 3810715, at *8 (N.D. Tex. July 23, 2013)
(“[B]ecause the elements of judicial estoppel appear on the face of Plaintiff's complaint and
in court filings that are subject to judicial notice, this affirmative defense may be properly
considered for purposes of Defendants’ motion to dismiss.”); Abreu v. Zale Corp., No. 3:12-
CV-2620-D, 2013 WL 1949845, at *1 (N.D. Tex. May 13, 2013) (considering judicial estoppel
in the context of a motion for judgment on the pleadings under Rule 12(c)).

       8 It is “clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of
public record.” Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007).

       9  See In re Flugence, 738 F.3d at 130 n.2 (5th Cir. 2013) (discussing an apparent
conflict between two sections of the Bankruptcy Code).

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                                  No. 14-10999
when a plan specifies the vesting structure the apparent inconsistency is of no
consequence).
                                       III.
      Long made several procedural objections to the district court’s dismissal
of his claims and he asks us to review them in the context of his Motion for
Relief from Final Judgment and Order of Dismissal, a Rule 59(e) motion that
the district court denied and that we review for abuse of discretion.         See
Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th Cir. 2010).
We address these objections below.
      The district court did not err in ruling on GSD&M’s motion to dismiss,
treating it as a motion for judgment on the pleadings. As already discussed,
our cases and the leading Supreme Court case applying judicial estoppel have
invoked the doctrine at the motion-to-dismiss stage.         Where the defense
appears on the face of the pleadings and in judicially noticeable facts, it may
be considered in a motion to dismiss. See New Hampshire, 532 U.S. at 745; In
re Superior Crewboats, Inc., 374 F.3d at 336; Reed v. City of Arlington, 795 F.
Supp. 2d 465, 467 n.1 (N.D. Tex. 2008) (construing a summary judgment
motion relying on judicial estoppel as a motion to dismiss), aff’d on reh’g en
banc, 650 F.3d 571 (5th Cir. 2011).
      Although GSD&M submitted evidence in its reply brief to the motion to
dismiss, the district court expressly stated in its order that it did not consider
these materials in deciding to apply judicial estoppel. If the district court does
not rely on materials in the record, such as affidavits, it need not convert a
motion to dismiss into one for summary judgment. Davis v. Bayless, 70 F.3d
367, 372 n.3 (5th Cir. 1995). “[T]he mere submission [or service] of extraneous
materials does not by itself convert a Rule 12(b)(6) [or 12(c)] motion into a
motion for summary judgment.” Finley Lines Joint Protective Bd. v. Norfolk S.



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                                   No. 14-10999
Corp., 109 F.3d 993, 996 (4th Cir. 1997) (internal quotation marks omitted)
(second alteration in original).     Moreover, an appellate court must “give
credence to [a] district court’s statement that it did not consider matters
outside the pleadings,” and “[o]nly if it appears that the district court did rely
on matters outside the pleadings should an appellate court treat the dismissal
as a summary judgment.” Fernandez–Montes v. Allied Pilots Ass’n, 987 F.2d
278, 283 (5th Cir. 1993).    Because the district court did not consider the
materials in the reply brief, it did not abuse its discretion in denying Long’s
motion to strike the materials. See United States v. Coney, 689 F.3d 365, 379
(5th Cir. 2012) (reviewing denial of a motion to strike for abuse of discretion).
Likewise, the brief filed by the bankruptcy trustee addressing judicial estoppel
did not infect the district court’s order with error. The district court expressly
stated that it did not rely on the trustee’s brief for its ruling and that Long
could not identify any prejudice that resulted from allowing the trustee to file.
      Long argues that GSD&M’s motion to dismiss was untimely and that
GSD&M lacked “good cause” under Rule 16(b)(4) for filing after the dispositive
motions deadline. We review a district court’s decision to allow an untimely
filing for abuse of discretion. See, e.g., Meaux Surface Prot., Inc. v. Fogleman,
607 F.3d 161, 167 (5th Cir. 2010). According to Long, GSD&M must offer a
persuasive reason why filing before the deadline “could not reasonably be met
despite the diligence of the party seeking the extension.” See Argo v. Woods,
399 F. App’x 1, 3 (5th Cir. 2010) (unpublished) (internal quotation marks
omitted). However, as the district court noted, motions for judgment on the
pleadings may be filed at any time after the pleadings are closed so long as
filing them does not delay trial, and it cited several district court orders that
have allowed such filings. See Fed. R. Civ. P. 12(c). Moreover, district courts




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                                  No. 14-10999
have broad discretion under Rule 6(b) to expand filing deadlines. Hetzel v.
Bethlehem Steel Corp., 50 F.3d 360, 367 (5th Cir. 1995).
      Long argues that the district court erred by giving the trustee only a
week to decide whether to continue pursuing Long’s FCA claims on behalf of
the estate before dismissing the lawsuit.       Given that the trustee did not
complain and had already indicated that she would not pursue the claims, the
district court did not abuse its discretion. Even if the district court should have
given the trustee more time, this issue is independent from the issue of
whether Long is personally estopped from pursuing the claims. See Reed, 650
F.3d at 575 (holding that a trustee’s authority over undisclosed causes of action
is “not affected by [the debtor’s] failure to disclose the asset, and it [is] not
extinguished by the conclusion of the bankruptcy case”) (citing 5 Collier on
Bankruptcy ¶ 554.03, p. 14 (15th ed. rev. 2004) (“Even after the case is closed,
the estate continues to retain its interest in unscheduled property.”)). “[A]n
innocent trustee can pursue . . . a judgment or cause of action that the debtor
fails to disclose in bankruptcy.” Reed, 650 F.3d at 573; see also Kane, 535 F.3d
at 387–88 (discussing the benefit to the creditors in allowing the trustee to
continue pursuing the claim). Any motion for an extension benefitting the
trustee was therefore irrelevant to whether Long is judicially estopped.
                                       IV.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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