United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTIONS TO
S. KRIEGER CHIEF UNITED STATES DISTRICT COURT JUDGE.
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; 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.
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.
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 for violation of the Fair
Labor Standards Act (“FLSA), 29 U.S.C. § 207.
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
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.
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.
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 (10th 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 (10th Cir.
2017); Nwosun v. Gen. Mills Restaurants, Inc., 124
F.3d 1255, 1257 (10th Cir. 1997).
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. 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.
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 (10th Cir. 2011). Thus, such
dismissals are typically granted res judicata
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
(4th 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.
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 10thCircuit 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