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Kennett v. Bayada Home Health Care, Inc.

United States District Court, D. Colorado

June 27, 2018

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



         This matter is before the Court on Plaintiff Michele Kennett's Uncontested Motion for Class Certification Pursuant to Federal Rule of Civil Procedure 23 and Stipulation as to Monetary Relief (for purposes of this Order, the “Motion”). (Doc. # 110.) For the reasons detailed below, Plaintiff's Motion is granted.

         I. BACKGROUND

         The Court's previous Orders provide detailed recitations of the factual and procedural background of this case and are incorporated herein. See (Doc. ## 49, 65.) The procedural background of this litigation will be reiterated here only to the extent necessary to address Plaintiff's Motion.

         Plaintiff initiated this action in 2014 on her own behalf and on behalf of a proposed class of hourly home health care workers employed by Defendant Bayada Home Health Care, Inc. in Colorado. (Doc. # 1.) She alleges Defendant violated Colorado's wage and hour laws and seeks unpaid overtime wages. (Id.) Defendant has long argued that Plaintiff and members of the proposed class constituted “companions” and were therefore expressly excluded from the minimum wage and overtime obligations of the Colorado Wage Act and related orders, consistent with the Fair Labor Standards Act. (Doc. # 10 at 10.)

         Pursuant to the Court's scheduling order, see (Doc. # 17 at 7), the action has proceeded in two stages. The first phase has focused on Defendant's companion exemption defense. (Id.) In February 2015, the parties filed separate Motions for Summary Judgment on Defendant's companion exemption defense. (Doc. ## 30, 31.) On September 24, 2015, this Court concluded that Defendant's companion exemption defense was inapplicable and that Plaintiff was not barred from overtime pay under Colorado's statutes and regulations. (Doc. # 49.) It therefore denied Defendant's Motion for Summary Judgment and granted Plaintiff's Motion for Partial Summary Judgment. (Id.)

         Defendant subsequently filed and this Court denied its Motion for Reconsideration or, in the Alternative, to Certify the Court's September 24, 2015, Order for Interlocutory Appeal. (Doc. ## 53, 65.) In February 2016, Defendant filed a Motion for Certification of a Question of Law to the Colorado Supreme Court (Doc. # 66), and on May 31, 2016, this Court certified Defendant's question to the Colorado Supreme Court and stayed this action (Doc. # 74). The Colorado Supreme Court declined to answer the certified question on June 16, 2016 (Doc. # 79), concluding the first phase of the litigation.

         The second phase of litigation has focused on class certification and damages. See (Doc. # 17 at 7.) The parties engaged in negotiations after the Colorado Supreme Court declined to address the certified question. Because Defendant asserted its intent to appeal the Court's conclusion as to Defendant's companion exemption defense to the Court of Appeals for the Tenth Circuit, the parties did not reach a settlement agreement. The parties did, however, agree to an amended scheduling order in which they would conduct discovery on class certification and damages and then stipulate to class certification and to a judgment on damages. (Doc. # 96.) Plaintiff would then file a motion for attorneys' fees and costs, and Defendant would file a Notice of Appeal. (Id.) The Court entered this Amended Scheduling Order on October 25, 2016. (Doc. # 98.) Over the course of several months, the parties exchanged information and engaged in good faith discussions to reach a stipulation. See (Doc. # 110-1 at 5-8.)

         The parties have now reached a stipulation concerning the amount of damages owed to Plaintiff and the members of the putative class, including prejudgment interest.

         (Id. at 8.) Plaintiff describes in the Motion presently before the Court:

The parties agree that the putative class is owed $282, 273.87 of overtime pay for the two-year class period at issue, and prejudgment interest of $109, 889.29. Attorneys' fees will be addressed following the Court's entry of Judgment, as contemplated in . . . the Amended Scheduling Order dated October 25, 2016. Additional attorneys' fees and post-judgment interest will be addressed, if necessary, after the conclusion of [Defendant's] appeal to the Tenth Circuit.

(Id. at 8-9.)

         In accordance with the parties' agreement, Plaintiff seeks to certify the following class pursuant to Rule 23: “All individuals who are or have been employed by Defendant as hourly paid home health care workers in Colorado from July 21, 2012, through November 15, 2015.” (Doc. # 110 at 1.) Plaintiff also asks the Court to appoint Plaintiff Michele Kennett as class representative and Rachhana T. Srey and Robert L. Schug of Nichols Kaster, PLLP as class counsel and to approve the parties' proposed notice to the class. See (Doc. # 110-1 at 13-14; Doc. # 110-6 at 1.) Plaintiff represents that Defendant does not contest these requests, see (Doc. # 110), and Defendant has not responded to Plaintiff's Motion.


         When addressing class certification, the district court undertakes a “rigorous analysis” to satisfy itself that the prerequisites of Federal Rule of Civil Procedure 23 are met. CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014). Under Rule 23(a), plaintiffs seeking class certification bear the burden of establishing four threshold requirements:

(1) “the class is so numerous that joinder of all members is impracticable”;
(2) “there are questions of law or fact that are common to the class”;
(3) “the claims or defenses of the representative parties are typical of the claims or defenses of the class”; and
(4) “the representative parties will fairly and adequately represent the interests of the class.” Id.

         Plaintiffs must also show that the case falls into one of the three categories set forth in Rule 23(b). Trevizo v. Adams, 455 F.3d 1155, 1161-62 (10th Cir. 2006); Shook v. El Paso Cty., 386 F.3d 963, 971 (10th Cir. 2004). In this case, Plaintiff moves for class certification under Rules 23(b)(2). (Doc. # 110-1 at 12-13.) Certification is available under Rule 23(b)(3) where “questions of law or fact common to class members predominate over any questions affecting only individual members, and . . . a ...

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