Sullivan v. Davita Healthcare Partners, Inc.

          OPINION AND ORDER GRANTING MOTIONS TO DISMISS

          Marcia S. Krieger Judge.

         THIS MATTER comes before the Court pursuant to the Defendants' (collectively “DaVita”) Motions to Dismiss (# 27 in -1589, # 26 in -1591, # 30 in -1593, and # 27 in -1594) and the Plaintiffs' corresponding responses^[1]; and DaVita's Motions to Stay (# 28 in -1589, # 27 in -1591, # 31 in -1593, and # 28 in -1594), the Plaintiffs' corresponding responses and DaVita's replies.

         FACTS

         A full understanding of the issues herein requires some historical background. In 2017, numerous DaVita employees - including all of the named Plaintiffs herein, among others - commenced a series of lawsuits against DaVita under the Fair Labor Standards Act (“FLSA), alleging that the employees were denied required overtime compensation by DaVita (hereafter, “the 2017 cases”). DaVita moved to dismiss the 2017 cases under Fed.R.Civ.P. 12(b)(6). Despite the plaintiffs' attempts to amend their complaints to cure any deficiencies, this Court ultimately granted several of DaVita's motions to dismiss several of the 2017 cases in an order dated June 22, 2018. See generally Harris v. DaVita Healthcare Partners, D.C. Colo. No. 17-cv-02741-MSK-NYW, Docket # 46.

         The plaintiffs in the dismissed cases did not file an appeal, a request for reconsideration, nor seek an opportunity to again amend their pleadings to cure the deficiencies identified by the Court. Instead, they filed new cases - those now before the Court. The Complaints in these cases are somewhat more specific than those adjudicated in the 2017 cases. For example, rather than simply alleging that the plaintiffs worked a certain number of hours per week in excess of 40 without receiving overtime compensation, these Complaints identify particular practices by DaVita that resulted in the Plaintiffs not receiving overtime. Each Plaintiff alleges that in addition to their scheduled hours, they “clock[ed] out for meal breaks, ” but that on a certain percentage of occasions those “meal breaks were interrupted and/or completely missed . . . due to co-worker interruptions and in order to complete [the Plaintiff's] job duties, ” but that they were not paid for these hours. See e.g. Docket # 1, ¶ 27 in -1589. Most of the Plaintiffs further allege that they regularly “worked [a certain number of hours] off the clock, ” either before or after their shift, “performing job duties, ” but again, were not paid the mandatory time-and-a-half wages for these hours. See e.g. Docket #1, ¶ 24 in -1591. A few allege that they were not compensated for specific hours spent traveling as part of their job duties. See e.g. Docket # 1, ¶ 28 in -1589. Based on these allegations, each Plaintiff in the instant cases asserts a single claim^[2] for violation of the Fair Labor Standards Act (“FLSA), 29 U.S.C. § 207.

         DaVita moves to dismiss each of these Complaints pursuant to Fed.R.Civ.P. 12(b)(6), arguing that the claims are barred by the doctrine of res judicata resulting from the June 22, 2018 order that dismissed Plaintiffs' 2017 cases. DaVita contends that such the prior dismissal constitutes an adjudication on the merits of the claim that prevents the Plaintiffs herein from bringing new suits alleging the same claims.

         In response, the Plaintiffs offer several arguments: (i) because this Court erred in its analysis of the Complaints in the 2017 cases, the Plaintiffs were not given a full and fair opportunity to litigate their claims; (ii) a dismissal for failure to state a claim is not necessarily a determination on the merits, and (iii) the cases do not involve the same parties because some plaintiffs from the 2017 suits are not among the Plaintiffs here.

         Separately, DaVita moves to stay proceedings in each of these cases pending resolution of its motions to dismiss. Because this Order disposes of DaVita's substantive motions, its motions to stay are denied as moot.

         ANALYSIS

         The doctrine of res judicata precludes a party from re-litigating issues that were or could have been raised in an earlier action. The party invoking the doctrine of res judicata has the burden of showing its preclusive effect. Thus, DaVita must show: (i) that the court entered a judgment on the merits of the claim in question in a prior suit; (ii) that the parties in both the prior and current suits are identical or in privity with one another; (iii) that the cause of action was identical in both suits; and (iv) that the party to be bound had a full and fair opportunity to litigate its claims. Phan v. Hipple, 735 Fed.Appx. 492, 494 (10^th Cir. 2018), citing City of claims in their own right -- and thus, the Court need not reach or consider the collective action allegations at this time. Eudora v. Rural Water District, 875 F.3d 1030, 1034-35 (10^th Cir. 2017); Nwosun v. Gen. Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10^th Cir. 1997).

         There is no dispute that the Plaintiffs were the plaintiffs in the cases filed in 2017. For example, Pat Sullivan, James Worsham, and Starr Davis who are plaintiffs in the -1589 case are the same Pat Sullivan, James Worsham, and Starr Davis that were named plaintiffs in D.C. Colo. No. 17-cv-02745-MSK-NYW. Lacey Wilson in the -1591 case is the same Lacey Wilson that was one of the named plaintiffs in No. 17-cv-02747, etc. The Plaintiffs' argument here that the identity requirement is not satisfied because some plaintiffs in the 2017 cases are not now plaintiffs in these cases is meritless. The doctrine of res judicata applies to claims, not cases - that is why it is often referred to the doctrine of “claim preclusion”. There is no dispute that the Plaintiffs in these actions previously asserted the same claims in the in the 2017 actions., Both the 2017 cases and those currently before the Court assert FLSA claims for unpaid overtime, and both cover, at least to a major extent, the same time periods.^[3] Thus, the remaining questions are: (i) whether the dismissal of the Plaintiffs' 2017 claims constituted a determination on the merits, and (ii) whether the Plaintiffs had a full and fair opportunity to litigate in the 2017 actions.

         Turning to the question of whether the Court entered “judgment on the merits” in the 2017 cases, it is undisputed that each of those cases ended with judgment of dismissal being entered against the named Plaintiffs pursuant to Fed.R.Civ.P. 12(b)(6). The general rule is that “a Rule 12(b)(6) dismissal is still an adjudication on the merits (not a technical or procedural dismissal), since it requires an evaluation of the substance of the complaint.” Slocum v. Corporate Express U.S., Inc., 446 Fed.Appx. 957, 960 (10^th Cir. 2011). Thus, such dismissals are typically granted res judicata effect. Id.

         The Plaintiffs correctly note that, sometimes, dismissals under Fed.R.Civ.P. 12(b)(6) are made “without prejudice, ” a concept that the Plaintiffs here seem to equate with “not on the merits.” Citing e.g. Ostrzenski v. Siegal, 177 F.3d 245, 252-53 (4^th Cir. 1999). This argument is misplaced for two reasons. First, dismissals without prejudice typically result when the party has not yet been given an opportunity to cure its defective pleading with an amendment. Here, as the Court explained in footnote 3 of its June 22, 2018 Order, the Plaintiffs had already once amended their Complaints in response to DaVita's motions to dismiss, and “[t]he Court thus assume[d] that the instant pleadings reflect[ed] the Plaintiffs' best efforts to plead their FLSA claims.” The Court noted that the Plaintiffs “have not requested, and the Court does not sua sponte grant, leave to the Plaintiffs in these cases to amend their complaints”. This left the ball in the Plaintiffs' court - leaving open the possibility that the Plaintiffs could requested further leave to amend. But they did not do so.

         Instead, they filed new lawsuits. This is exactly what happened in Slocum - one of the plaintiff's earlier complaints was expressly dismissed without prejudice, thereby allowing the plaintiff to attempt to replead, but “[s]he never did.” 446 Fed.Appx. at 960. As a result, the 10^thCircuit affirmed the trial court's application of res judicata effect to the dismissal order. Thus, even if the June 22, 2018 Order is considered to be a dismissal without prejudice, the Plaintiffs' failure to take any subsequent action to resuscitate the claims in their 2017 cases results in the dismissal with prejudice subject to the doctrine of res ...