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Combs v. Cordish Companies, Inc.

United States Court of Appeals, Eighth Circuit

July 5, 2017

Dante A.R. Combs, individually and on behalf of all others similarly situated; Adam S. Williams, individually and on behalf of others similarly situated Plaintiffs - Appellants
v.
The Cordish Companies, Inc.; Lounge KC, LLC, doing business as Mosaic; Entertainment Concepts Investors, LLC; First Response, Inc.; Entertainment Consulting International, LLC Defendants - Appellees

          Submitted: November 15, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, [1] WOLLMAN and KELLY, Circuit Judges.

          KELLY, Circuit Judge.

         Dante A.R. Combs and Adam S. Williams, on behalf of themselves individually and others similarly situated, brought a race discrimination lawsuit against several entities associated with the Power & Light Entertainment District (the District) in Kansas City, Missouri. The lawsuit alleged the defendants engaged in a pattern and practice of racial discrimination that interfered with the ability of African American men to patronize bar and restaurant establishments in the District, in violation of 42 U.S.C. § 1981. The district court granted summary judgment to all defendants and Combs and Williams appeal. For the reasons discussed below, we affirm in part, and reverse and remand in part.

         I. Background

         Combs and Williams are African American men who allege they have personally suffered racial discrimination in the District. The Cordish Companies (Cordish) developed the District.[2] The District began operations in November 2007, and Cordish continues to oversee at least some of its operations.[3] From 2009 to 2012, managers of District establishments reported to Cordish, as well as to their individual employers. First Response, Inc. (First Response) is a Kansas corporation that provided security in the District between December 2010, and October 2014.

         The District covers eight blocks in downtown Kansas City, Missouri, and is comprised of entertainment, dining, and shopping venues. The LiveBlock, a one-block enclosed area in the District, contains a number of bars, restaurants, and nightclubs, and has a common covered patio space called the "Living Room." To get to one of the establishments surrounding the Living Room, a patron first goes through an entrance into the LiveBlock. From there the patron can enter an individual establishment of choice through that establishment's entrance. Security at the entrance to the LiveBlock ensures patrons are 21 years old and are abiding by the dress code and other rules. The individual establishments also have their own security (bouncers).[4] In their Complaint, Combs and Williams assert they were targeted for ejection from the LiveBlock on account of their race when they were at, near, or trying to patronize three establishments bordering the Living Room: the Maker's Mark Restaurant (Maker's Mark), Mosaic, and Tengo Sed Cantina (Tengo).[5]

         The first incident occurred at Maker's Mark on August 26, 2010. Williams was at Maker's Mark with a group of friends, including Combs.[6] At some point, Williams was approached by another Maker's Mark patron, Cail Hendry. According to Combs and Williams, Hendry made offensive remarks to Williams. An altercation broke out among Hendry, Williams, and other patrons of the bar, and Maker's Mark bouncers stepped in, followed by security guards. Both Williams and Hendry were handcuffed, separated, and detained. Hendry was released after fifteen or twenty minutes of questioning and then allowed to return to Maker's Mark. Williams was detained for approximately ninety minutes before he was allowed back into Maker's Mark to pay his tab. Williams was then escorted out of the LiveBlock. Williams alleges that Hendry was paid by Cordish to pick a fight with him so that security would eject him from the LiveBlock.

         The second incident occurred at Mosaic in early summer 2011. As Combs stood in line to enter Mosaic, he was asked for identification, while others in line in front of him-who were not African American-were not. As Combs got closer to the entrance, a bouncer asked him to step to the side of the line. Combs asked why he had to leave the line, but he was ignored for several minutes while Mosaic employees admitted several small clusters of people who arrived after him. Combs asked again why he was not being allowed into Mosaic. The exchange became "heated, " and the bouncer told Combs he was being denied entrance because his "pants are too f***ing baggy." Combs did not believe this reason because he was dressed in a tailored suit, and he asked to speak to the manager. No manager was called, and Combs was not allowed into Mosaic. Eventually, security guards arrived, asked "what the problem was, " and escorted Combs out of the LiveBlock.

         The third incident occurred in July 2011. Combs had entered the LiveBlock to meet friends that he believed were at Tengo.[7] He was running late, so he stopped approximately thirty feet from the front door to text them to find out if they were still there. While he was texting, a man walked up and knocked Combs' cellphone out of his hand. Then, the man was "right in [Combs'] face, " yelling obscenities. Security guards arrived and escorted Combs out of the LiveBlock, and "nobody wanted to listen to [Combs'] story" as to what had just happened. Combs did not know what, if anything, happened to the other person.

         In April 2011, Combs and his wife filed a voluntary Chapter 7 petition for bankruptcy relief. It is undisputed that Schedule B of his bankruptcy petition asked Combs to list his "contingent and unliquidated claims of every nature, " and that he did not disclose any potential lawsuits he might have against any of the defendants. Combs and his wife received their discharge in August 2011, and the case was closed.

         In March 2014, after hearing media reports of racial discrimination at the District, Combs and Williams brought the instant action, based on the three incidents described above. Williams alleged Cordish and the security company, First Response, intentionally interfered with his right to patronize Maker's Mark because of his race. Combs alleged that all defendants violated his right to patronize Mosaic, and that Cordish and First Response violated his right to patronize Tengo (or any other establishment in the LiveBlock), both times on account of his race. All the defendants filed motions for summary judgment on the merits. Cordish and Lounge KC also asked the court to find Combs was judicially estopped from pursuing his claims because he did not disclose them in his bankruptcy proceeding. Combs then moved to reopen his bankruptcy to amend his petition.

         Before the bankruptcy court ruled on Combs' motion to reopen, the district court granted summary judgment to all defendants.[8] The court concluded that Combs was "judicially estopped from asserting claims that he had before he filed for bankruptcy relief, as well as claims that arose while his bankruptcy was pending and before he was granted a discharge of his debts." In the alternative, the court granted summary judgment in favor of all defendants on the merits on all claims by both Williams and Combs with one exception: Combs' allegation against Lounge KC regarding the incident at Mosaic. As to Lounge KC, the court found there were disputed issues of material fact as to whether Mosaic employees interfered with Combs' right to enter, but nonetheless found judicial estoppel barred relief.

         The day after the district court entered judgment, the bankruptcy court granted Combs' motion to reopen the Chapter 7 bankruptcy proceeding and allowed the lawsuit against the defendants to be listed as a contingent claim on Combs' list of personal property in Schedule B. The bankruptcy court considered only the Maker's Mark incident to be an asset of the Chapter 7 estate, and the Trustee indicated his intent to abandon the claim. The district court denied Combs' post-judgment motion to amend or alter judgment based on the bankruptcy court's decision.[9]

         II. Discussion

         On appeal, Combs asserts the district court abused its discretion in applying judicial estoppel to bar his claims. Combs and Williams both assert that the court erred in granting summary judgment on the merits.

         A. Judicial Estoppel

         Our review of a district court's application of the judicial estoppel doctrine is for abuse of discretion. We will affirm "unless it plainly appears that the court committed a clear error of judgment in the conclusion it reached upon a weighing of the proper factors." Jones v. Bob Evans Farms, Inc., 811 F.3d 1030, 1032 (8th Cir. 2016) (quoting Stallings v. Hussmann Corp., 447 F.3d 1041, 1046-47 (8th Cir. 2006)). A district court abuses its discretion if its judgment "was based on clearly erroneous factual findings or erroneous legal ...


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