Lipe and Whalen Obtain Dismissal with Prejudice of All of Plaintiff’s Claims Asserting Bankruptcy-Based DefensesNovember 1, 2015
Plaintiff, Thomas O. Jones, filed suit against defendants, including the firm’s client, a construction company that acts as a general contractor. Jones’ complaint included allegations that the client negligently caused him to sustain personal injuries while he was working on a construction site. Shortly after his alleged injury, Jones filed for Chapter 7 bankruptcy but he failed to disclose his personal injury claims as an asset in his bankruptcy proceeding. Jones’ injury claims were an asset of his bankruptcy estate and only the bankruptcy trustee had standing to file a lawsuit to pursue a recovery for Jones’ claims. After the bankruptcy trustee attempted to substitute as the plaintiff for Jones, Jeffrey Lipe and James Whalen filed a motion to dismiss the counts against the client pursuant to 735 ILCS 5/2-619(a)(5) and (9), arguing that the personal injury claims were time barred and that the claims should be dismissed pursuant to the doctrine of judicial estoppel. The court granted the motion to dismiss, with prejudice, on all of plaintiff’s claims against the client.