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Kennett v. Bayada Home Health Care, Inc.

United States District Court, D. Colorado

February 1, 2016

MICHELE KENNETT, individually and on behalf of the Proposed Colorado Rule 23 Class, Plaintiff,



On September 24, 2015, this Court issued an order denying Defendant Bayada Home Health Care Inc.’s (Bayada’s) Motion for Summary Judgment and granting Plaintiff Michele Kennett’s Cross-Motion for Summary Judgment (the Summary Judgment Order). (Doc. # 49.) Before the Court is Defendant’s Motion for Reconsideration of the Summary Judgment Order, or, in the Alternative, to Certify the Court’s Summary Judgment Order for Interlocutory Appeal. (Doc. ## 53, 63.) As explained in greater detail below, because the Court did not misapprehended the facts, the parties’ position, or the controlling law, and because certifying this case for interlocutory appeal would not materially advance the ultimate termination of this litigation, the Court denies Defendant’s Motion.


Plaintiff Michele Kennett commenced this action in July of 2014, alleging that Bayada violated Colorado state law[1] in failing to pay overtime wages to its home health care workers, who provide in-home health care services to clients with cognitive difficulties, physical disabilities, and/or chronic illnesses. (Doc. # 1.) In its Motion for Summary Judgment, Defendant argued that Ms. Kennett’s overtime claim was barred by the so-called “Companion Exemption” to the state law’s overtime protections. (Doc. # 30.) The Companion Exemption appears in Section 5 of Colorado’s Minimum Wage Order (MWO), and reads in relevant part as follows:

The following employees or occupations, as defined below, are exempt from all provisions of Minimum Wage Order No. 31: administrative, executive/supervisor, professional, outside sales employees, and elected officials and members of their staff. Other exemptions are: companions, casual babysitters, and domestic employees employed by households or family members to perform duties in private residences, property managers, interstate drivers, driver helpers, loaders or mechanics of motor carriers, taxi cab drivers, and bona fide volunteers.

7 C.C.R. 1103-1:5 (emphasis added).

In resolving the Motion and Cross-Motion for Summary Judgment, the Court was tasked with determining – as a matter of first impression – whether the phrase “employed by households or family members to perform duties in private residences” (which the Court termed the “household qualifier”) modified solely “domestic employees, ” or if it also modified the other two occupational categories (i.e., companions and casual babysitters). (Doc. # 49 at 13.) In doing so, the Court analyzed the Exemption’s plain language and concluded that the only grammatically sound reading of that language dictated that the household qualifier is applicable to the antecedents “companions” and “casual babysitters, ” as well as to “domestic employees.” (Doc. # 49 at 13–16.) The Court also wrestled with what deference it should provide to an August 3, 2006 “Opinion Letter” (2006 Opinion Letter) written by the then-Director of the Colorado Division of Labor (DOL), which advised that “applying the companionship exemption in situations involving third party employers is acceptable under Colorado Minimum Wage Order Number 22.” (Id. at 17–22.) Ultimately, the Court decided that, because the 2006 Opinion Letter was contrary to the Companion Exemption’s plain language and was conclusory and disclaimer-riddled, the 2006 Opinion Letter was not entitled to deference. (Id. at 20.) Defendant now urges the Court to reconsider the Summary Judgment Order or, in the alternative, to certify it for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).


A. Motions for Reconsideration

The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration. Hatfield v. Bd. of Cnty. Comm’rs for Converse Cnty., 52 F.3d 858, 861 (10th Cir. 1995). Accordingly, where, as here, a party’s motion seeks reconsideration of a non-final order, that motion falls within the Court’s discretionary power to revisit and amend its interlocutory orders as justice requires. See Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1224 n. 2 (10th Cir. 2008) (“The District Court’s partial summary judgment ruling was not a final judgment. Thus, [plaintiff's] motion for reconsideration is considered an interlocutory motion invoking the district court’s general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment.”); see also Fed. R. Civ. P. 54(b). There are three major grounds justifying reconsideration of an interlocutory order: “(1) an intervening change in the controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.” See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Concomitantly, a motion to reconsider is appropriate where the court has misapprehended the facts, a party’s position, or the controlling law, but such motions are “inappropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion.” Id. (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)); see also Nat’l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250, 1256 (D. Colo. 2000) (“Notwithstanding the district court's broad discretion to alter its interlocutory orders, the motion to reconsider is not at the disposal of parties who want to rehash old arguments. . . . [a] motion to reconsider should be denied unless it clearly demonstrates manifest error of law or fact or presents newly discovered evidence.”) (internal quotation marks and citation omitted).

B. Interlocutory Appeals and Certification Under 28 U.S.C. § 1292(b)

Generally speaking, appellate jurisdiction is limited to appeals from final decisions of the district courts. See Kearns v. Shillinger, 823 F.2d 399, 400 (10th Cir. 1987). However, 28 U.S.C. § 1292(b) allows a district court to certify certain orders for interlocutory appeal, and the instant Motion seeks an order certifying the question of whether homecare workers are exempt “companions” under the MWO for such treatment. Section 1292(b) provides that

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order . . . .

28 U.S.C. § 1292(b) (emphasis added). It is entirely within a district court’s discretion to certify an order for appeal under Section 1292(b). See Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 47 (1995). However, the Tenth Circuit has recognized that certification under 28 U.S.C. § 1292(b) “should be limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate final decision of controlling questions encountered early in the action.” State of Utah By &Through Utah State Dep’t of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994) (citation and quotation marks omitted); see also Carpenter v. Boeing Co., 456 F.3d 1183, 1189 (10th Cir. 2006) (“Interlocutory appeals have long been disfavored in the law, and properly so. They disrupt and delay the proceedings below.”); Carson v. Am. Brands, Inc., 450 U.S. ...

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