Bowling v. DaVita, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-03033-NYW-KLM
JAMES BOWLING, individually and on behalf of all others similarly situated,
Plaintiff,
v.
DaVITA, INC.,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff=s Opposed Motion for Leave to
Amend Complaint [#60] (the AMotion@). 	Defendant DaVita, Inc. (“DaVita”) filed a
Response [#69] in opposition to the Motion [#60] and Plaintiff filed a Reply [#75]. 	The
Court has reviewed the Motion, the Response, the Reply, the case file and applicable
law, and is fully advised in the premises. 	For the reasons stated below, it is respectfully
recommended that the Motion [#60] be denied.
I. 	Introduction
Plaintiff brings a collective action under the Fair Labor Standards Act (“FLSA).
Plaintiff alleges that DaVita required its nurses and technicians to remain responsible for
patient care throughout their shifts, including during meal periods, depriving them of
overtime pay in weeks where they worked more than 40 hours a week. 	See, e.g., Pl.’s
First Am. Compl. [#31]. 	More specifically, Plaintiff alleges that nurses and technicians at
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DaVita were (1) either actually interrupted during meal breaks, or (2) were subject to
interruption due to their continuing duty to patients while on the clock. 	Id., ¶¶ 1-4.
Nurses and technicians who worked at DaVita throughout the country have opted into this
lawsuit as Opt-in Plaintiffs. 	Id. at 3.
When the Motion [#60] was filed, the parties were conducting Phase 1 discovery
limited to the threshold issue of conditional certification of a FLSA collective action. 	Id.
The Motion [#60] states that Plaintiff learned during these depositions that in multiple
instances, Plaintiff and the Opt-in Plaintiffs were not paid for rest break periods as is
required by the FLSA. 	Id. at 3-4. 	Accordingly, Plaintiff seeks leave to amend his
Complaint to add a FLSA rest break claim on his behalf and on behalf of the putative
collective action. 	Id. at 4.
DaVita opposes the Motion [#60], highlighting that Plaintiff seeks leave to amend
his Complaint a second time to add a new allegation and theory of recovery that easily
could have been discovered and pled long ago. 	DaVita further notes that the Motion
[#60] was filed nearly a year after this case commenced and five months after the deadline
for amending pleadings passed. 	Response [#69] at 1. 	According to DaVita, the Court
should 	deny 	Plaintiff’s 	Motion 	because 	(1) 	there 	is 	no 	good 	cause 	to 	allow 	the
amendment, (2) Plaintiff’s failure to meet the deadline was due to his own lack of diligence
and not excusable neglect; and (3) justice would not be served by allowing the
amendment. 	Id. at 1.
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II. 	Analysis
As an initial matter, Plaintiff acknowledges that the deadline to amend pleadings
expired on May 9, 2022, almost five months before the filing of the Motion [#60] on
October 4, 2022. 	Accordingly, before addressing Fed. R. Civ. P. 15(a)(2), the Court must
start its analysis with whether Plaintiff has shown good cause to amend the scheduling
order to permit amendment out of time under Fed. R. Civ. P. 16(b)(4). 	While Plaintiff
argues that the Tenth Circuit has not decided that the good cause standard applies to a
motion to amend filed after the amendment deadline (Motion [#60] at 6-7), this Court and
District Judge Nina M. Wang, as well as the majority of Courts in this district, have found
that Rule 16(b)(4) applies in this circumstance. 	See Ward v. Acuity, No. 21-cv-00765-
CMA-NYW, 2021 WL 4947294, at *4 (D. Colo. Oct. 6, 2021); Petekeiwicz v. Stembel, No.
13-CV-01865-RM-KLM, 2015 WL 1740386, at *4 (D. Colo. Apr. 14, 2015); see also Ayon
v. Kent Denver Sch., No. 12-cv-2546-WJM-CBS, 2014 WL 85287, at *2 (D. Colo. Jan. 9,
2014) (noting that where a party seeks to amend his pleadings after the deadline in the
scheduling order, Athe majority of courts have held that a party must meet the two-part
test of first showing good cause to amend the scheduling order under Rule 16(b), and
then showing that amendment would be allowed under Rule 15(a)@); cf. Gorsuch, Ltd.,
B.C. v. Wells Fargo Nat
=l Bank Ass
=n, 771 F.3d 1230, 1241 (10th Cir. 2014) (holding that
the trial court did not abuse its discretion by using ARule 16=s good cause requirement as
the threshold inquiry to consider whether amendments should be allowed after a
scheduling order deadline has passed@). 	Thus, the Court finds that Plaintiff may only be
granted leave to amend if he makes the requisite showing at each step of the analysis.
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A. 	Good Cause
A scheduling order deadline, such as the pleading amendment deadline, Amay be
modified only for good cause with the judge=s consent.@ 	Fed. R. Civ. P. 16(b)(4). 	This
Agood cause@ requirement reflects the important role a scheduling order plays in the
court=s management of its docket. 	Washington v. Arapahoe Cnty. Dep
=t of Soc. Servs.,
197 F.R.D. 439, 441 (D. Colo. 2000) (stating that a “ Scheduling Order is not a frivolous
piece of paper, idly entered, which can be cavalierly disregarded by counsel without
peril.”). 	The Rule 16(b) good cause standard has been described as follows:
Rule 16(b)[(4)]=s good cause standard is much different than the more
lenient standard contained in Rule 15(a). 	Rule 16(b)[(4)] does not focus
on the bad faith of the movant, or the prejudice to the opposing party.
Rather, it focuses on the diligence of the party seeking leave to modify the
scheduling order to permit the proposed amendment. 	Properly construed,
good cause means that the scheduling deadlines cannot be met despite a
party=s diligent efforts. 	In other words, the Court may Amodify the schedule
on a showing of good cause if [the deadline] cannot be met despite the
diligence of the party seeking the extension.@
Pumpco, Inc. v. Schenker Intern. Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (citations
omitted); accord Ward, 3021 WL 4947294, at *4.
Thus, to demonstrate good cause, the moving party must Ashow that it [was]
diligent in attempting to meet the [pleading amendment] deadline, which means it must
provide an adequate explanation for any delay.@ 	Minter v. Prime Equip. Co., 451 F.3d
1196, 1205 n.4 (10th Cir. 2006). 	While a movant’s Rule 16(b) burden may be satisfied
when a party learns of new information in discovery, the movant must still “demonstrate
that, despite his diligent efforts, he could not have met the deadline to amend the
pleadings.” 	Ward, 2021 WL 4947294, at *4.
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Here, while Plaintiff states he learned in discovery conducted after the amendment
deadline of new information about Defendant’s alleged noncompliance with the FLSA as
to rest breaks (Motion [#60] at 3-5, 8), DaVita has shown that Plaintiff was not diligent in
obtaining this information. 	Thus, DaVita notes that in its Rule 26 Initial Disclosures
served on February 15, 2022, DaVita disclosed it possessed pay and time records for
Plaintiff Bowling and the opt-in Plaintiffs. 	Resp. [#69] at 2; see also Ex. A. 	Plaintiff did
not request a copy of those documents. 	Nonetheless, Defendant produced them on April
28, 2022, almost two weeks before the deadline to amend the complaint. 	Id. at 2-3 and
Ex. B. 	According to DaVita, these records included detailed documentation of the
precise times Plaintiff and each opt-in employee punched in and out for their lunch breaks,
making it easy to see on any given workday whether they were able to take a 30-minute
lunch break or if their break was truncated, and if so by how much. 	Id. at 3. 1 	Despite
having these pay and time records for months and the ability to interview the opt-in
Plaintiffs for months or even over a year, Plaintiff now claims he failed to discover the rest
break allegations he seeks to add to this case until after depositions in July, August and
September, 2022 were largely complete. 	See id. 	Plaintiff then waited to file the Motion
[#60] until October 4, 2022—two weeks before the conditional certification deadline. 	Id.
at 4. 	As DaVita notes, Plaintiff’s counsel essentially claims that he needed DaVita to
depose the opt-in Plaintiffs – his own clients – before he came to the realization that this
new theory of recovery might be available to Plaintiff. 	Id. 	Plaintiff does not refute these
issues, or even substantively address the good cause requirement in his Reply [#75].
1 	DaVita also notes that when additional opt-in Plaintiffs joined the lawsuit later in the
summer (#44, #50, #51), it produced their pay and time records on August 26, 2022. 	Id.; Ex. C.
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Based on the foregoing, the Court finds that Plaintiff has failed to meet the good
cause requirement of Rule 16(a)(4).
B. 	Rule 15(a)(2)
The Court also finds that an amendment is not required in the interest of justice
under Rule 15(a)(2). 	Thus, the Court has discretion to grant a party leave to amend its
pleadings, “when justice so requires.” 	Foman v. Davis, 371 U.S. 178, 182 (1962); Fed.
R. Civ. P. 15(a)(2). 	“In the absence of any apparent or declared reason—such as undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, futility of the amendment, etc.—the leave
sought should, as the rules require, be ‘freely given.’” 	Foman, 371 U.S. at 182 (quoting
Fed. R Civ. P. 15(a)(2)).
Potential prejudice to a defendant is the most important factor in considering
whether a plaintiff should be permitted to amend its complaint. 	Minter v. Prime Equip.
Co., 451 F.3d 1196, 1207 (10th Cir. 2006). 	Courts typically find prejudice when the
proposed amendments unfairly affect the defendant in terms of preparing a defense to
the amendment. 	Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971). 	“Most often, this
occurs when the amended claims arise out of a subject matter different from what was
set forth in the complaint and raise significant new factual issues.” 	Minter, 451 F.3d at
1208 (citations omitted).
The Court first finds that DaVita has not argued or shown bad faith or dilatory
motive on the part of Plaintiff, and the Court finds that Plaintiff’s request to amend his
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complaint is not submitted for any improper purpose. 	However, the Court finds for the
same reasons discussed above in connection with Rule 16(b)(4) that Plaintiff’s request to
amend the Complaint is “unduly and inexplicably delayed.” 	Riverside Storage &
Recycling Ctr., No. 15-cv-02325-CMA-NYW, 2016 WL 1028349, at *2 (D. Colo. Mar. 15,
2016); see also Bylin v Billings, 568 F.3d 1224, 1231 (10th Cir. 2009) (stating that the
Tenth Circuit has noted the rough similarity between the good cause standard under Rule
16(b)(4) and the undue delay standard of Rule 15). 	As DaVita highlights, Plaintiff and
his counsel had the opportunity to learn the alleged “new” facts about rest breaks forming
the basis of the Motion [#60] before the deadline to amend by (1) conducting basic
interviews of the opt-in Plaintiffs; (2) reviewing the pay records DaVita produced on April
28, 2022 for Plaintiff Bowling and four of the remaining six opt-in Plaintiffs, almost two
weeks before the amendment deadline; and (3) asking the four opt-in Plaintiffs who still
work for DaVita to download their pay records through DaVita’s online repository, which
they have testified they could access (See Stirl Dep., 109:3-20, 21:15-19, Ex. D; Hooppell
Dep., 30:24-31:17, Ex. E; Barbee Dep., 54:20-55:1, Ex. F). 	Resp. [#69] at 6. 	Further,
Plaintiff could have asked for the pay records for Plaintiff and the opt-in Plaintiffs in
response to Defendant’s Rule 26 Initial Disclosures. 	“Untimeliness in itself can be a
sufficient reason to deny leave to amend, particularly when the movant provides no
adequate explanation for the delay[,]” as here 	Panis v. Mission Hills Bank, N.A., 60 F.3d
1486, 1495 (10th Cir. 1995).
In addition, the Court finds that DaVita has shown prejudice in connection with the
delay in the filing of the Motion [#60]. 	DaVita asserts that it spent considerable time and
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resources on Phase I discovery related to the conditional certification deadline, and
focused solely on the claims in the Amended Complaint that Plaintiff was required to work
off-the-clock during meal breaks. 	Resp. [#69] at 4. 	DaVita did not seek discovery on
topics outside of the allegations in the Amended Complaint, including “Plaintiff’s brand
new 	allegations 	that 	truncating 	meal 	breaks 	automatically 	converts 	them 	into
compensable rest breaks under the FLSA.” 	Id. at 8-9. 	According to DaVita, had it
known about Plaintiff’s new theory, its counsel would have issued written discovery and
focused significant deposition time on the topics necessary to develop its defenses and
better understand Plaintiff’s theory. 	Id. at 9. 	But DaVita asserts it could not explore this
theory or its defenses in discovery because Plaintiff did not mention the rest break
amendment until he conferred about this issue on September 23, 2022, after all but one
of the relevant depositions had been conducted. 	Id. 	Thus, DaVita avers that it will have
to redo all of its discovery and depositions, and any related conferrals (there were many,
according to DaVita) in order to obtain the testimony it needs to properly respond to
Plaintiff’s Opposed Motion for FLSA Conditional Certification [#73], which was filed on
October 20, 2021, shortly after the instant Motion [#60] was filed, and is still pending.
While Plaintiff argues that the discovery conducted in Phase 1 was related only to
conditional certification, and that DaVita is not prejudiced because it can conduct this
discovery in the merits phase of discovery (see Reply [#75] at 1), the Court rejects this
argument. 	As is apparent from the briefing on conditional certification [#73], the issue of
rest breaks and whether DaVita’s alleged truncation of the breaks violates the FLSA has
been raised by Plaintiff and is at issue in that briefing. 	See, e.g., Pl.’s Opposed Mot. for
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FLSA Conditional Certification and Court-Authorized Notice [#73] at 4. 	The Court finds
prejudice because DaVita was unable to conduct discovery on this issue and explore its
defenses in order to respond to that motion.2
Based on the foregoing, the Court recommends that leave to amend also be
denied under Rule 15(a)(2).
III. 	Conclusion
In conclusion,
IT IS HEREBY RECOMMENDED that Plaintiff=s Opposed Motion for Leave to
Amend Complaint [#60] be DENIED.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. 	A party=s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v.
Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and
legal questions. 	Makin v. Colo. Dep
=t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). 	A party=s objections to this
Recommendation must be both timely and specific to preserve an issue for de novo
review by the District Court or for appellate review. 	United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
2 	Since the Court has found that leave to amend should be denied on multiple bases, it
need not address DaVita’s argument that amendment would be futile.
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Dated: 	April 10, 2023
Dated: 	April 11, 2023
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