Tenth Circuit Notes Ability to Consider Waived Judicial Estoppel Argument at its Discretion

Per Kaiser v. Bowlen, 2006 WL 2130439 (10th Cir. Aug 1, 2006):

The district court considered and rejected on the merits Kaiser's Fed.R.Civ.P. 50(b) motion for judgment as a matter of law in which he raised judicial estoppel for the first time. However, it did so in error because Kaiser did not bring a Rule 50(a) motion for a directed verdict raising this issue at the close of evidence. See FDIC v. United Pac. Ins. Co., 20 F.3d 1070, 1076 (10th Cir.1994) ("failure to move for a directed verdict on this issue bars us from considering whether the district court erred in denying the motion for [judgment notwithstanding the verdict]"). Despite this error, judicial estoppel is "an equitable doctrine invoked by a court at its discretion." New Hampshire, 532 U.S. at 750 (citations and quotation marks omitted). Hence, we are not bound to accept a party's waiver of a judicial estoppel argument and may consider the issue at our discretion. See Bethesda Lutheran Homes & Servs. v. Born, 238 F.3d 853, 858 (7th Cir.2001) (the doctrine of judicial estoppel "is for our protection as well as that of litigants, and so we are not bound to accept a waiver of it."); Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 530 (5th Cir.2000) ("because that doctrine protects the judicial system, ... we can apply it sua sponte in certain instances").

Although we are not bound to abide by Kaiser's waiver, there is simply no reason to apply judicial estoppel here. The Supreme Court has made clear that judicial estoppel is "probably not reducible to any general formulation of principle." New Hampshire, 532 U.S. at 750 (quotation marks omitted).