Bowling v. DaVita, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 21-cv-03033-NYW-KAS
JAMES BOWLING, individually and on behalf of all others similarly situated,
Plaintiff,
v.
DAVITA, INC.,
Defendant.
ORDER
This matter is before the Court on Plaintiff’s Opposed Motion to Consolidate with
Related Case (the “Motion” or “Motion to Consolidate”). [Doc. 151]. For the reasons set
forth in this Order, the Motion to Consolidate is respectfully DENIED without prejudice.
BACKGROUND
This Court has previously set out the background of this case in detail, see [Doc.
92], and repeats it here only as necessary for purposes of this Order. 	Plaintiff James
Bowling (“Plaintiff” or “Mr. Bowling”) initiated this collective action on November 10, 2021,
[Doc. 1], and filed his Amended Complaint on February 14, 2022, [Doc. 31]. 	Plaintiff
alleges generally that Defendant DaVita, Inc. (“Defendant” or “DaVita”) failed to provide
bona fide meal breaks to its employees and failed to adequately compensate its
employees for time worked during their meal breaks in violation of the Fair Labor
Standards Act (“FLSA”). 	[Id. at ¶¶ 1, 4]. 	Accordingly, Mr. Bowling claims that DaVita
violated the FLSA by failing to properly compensate employees for overtime hours
Case No. 1:21-cv-03033-NYW-KAS Document 173 filed 07/30/24 USDC Colorado
pg 1 of 9

2
worked. 	[Id. at ¶ 4]. 	Mr. Bowling asserts a single FLSA claim based on these alleged
violations. [Id. at ¶¶ 5, 31–39].
The Procedural Posture of this Case. On April 15, 2022, the Honorable Kristen
L. Mix entered a Scheduling Order, which contemplates three phases of discovery. [Doc.
42 at 7]. The Scheduling Order states:
The first phase of discovery will focus on the Named Plaintiff[] and opt-in
plaintiffs and the discovery necessary for conditional certification of the
FLSA collective action. 	If an FLSA collective action is certified, then the
second phase will, if and as appropriate, focus on (1) the claims of those
individuals who file consents to join the action under 29 U.S.C. § 216(b),
and (2) whether de-certification is warranted. 	If any conditionally certified
collective action is not de-certified, then the third phase would focus on the
merits of the claims, and the Plaintiff[’s] and collective members’ damages.
[Id.]. The first phase of discovery closed on September 22, 2022. See [id. at 8; Doc. 48].
In October 2022, Plaintiff moved to amend his Complaint to add allegations of
“FLSA rest break violations on behalf of himself, the Opt-in Plaintiffs,” and the members
of the collective, see [Doc. 60 at 1], and also moved for conditional certification a
nationwide collective of certain DaVita nurses and technicians, see [Doc. 73 at 18–19].
Judge Mix recommended denying Plaintiff’s motion to amend for lack of good cause
under Rule 16(b)(4). 	[Doc. 89 at 9]. 	Specifically, she concluded that Plaintiff had not
acted diligently in seeking leave to amend after he learned about the alleged rest-break
violations. 	[Id. at 5]. 	The Court adopted that recommendation after no Party filed
objections. [Doc. 90].
This Court later granted in part and denied in part Plaintiff’s request for conditional
certification; the Court declined to conditionally certify a nationwide or companywide
collective, but it permitted conditional certification “with respect to nurses and technicians
who worked at DaVita during the relevant time period in . . . nine states: 	Arkansas;
Case No. 1:21-cv-03033-NYW-KAS Document 173 filed 07/30/24 USDC Colorado
pg 2 of 9

3
Florida; Georgia; Louisiana; Oklahoma; New York; Tennessee; Texas; and Virginia.”
[Doc. 92 at 15]. After this Court granted conditional certification, the case proceeded to
the second phase of discovery. 	See [Doc. 128 (“Scheduling Order Re Phase II
Discovery”)]. The second phase of discovery is set to close on October 31, 2024. [Id. at
5].
The Lightner Case. 	On November 21, 2023, Anduin Lightner initiated a case
against DaVita in this District: 	Lightner v. DaVita, Inc., No. 23-cv-03104-NYW-KAS, (D.
Colo. Nov. 21, 2023).1 	In Lightner, the plaintiff raises allegations about meal-break
violations similar to the allegations in this case, and also asserts allegations about rest-
break violations. See, e.g., [Lightner, ECF No. 1 at ¶¶ 1–4]. The Lightner plaintiff purports
to bring the case on behalf of two collectives:
All current and former hourly paid nurses and technicians employed at all
DaVita locations excluding those in Arkansas, Florida, Georgia, Louisiana,
New York, Oklahoma, Tennessee, Texas, and Virginia, to provide direct
patient care at any time during the three years before this Complaint was
filed up to the present who, as a result of Defendant’s practice of deducting
30 minutes from each shift worked and not paying for same, did not receive
all of the overtime pay to which they were entitled under the FLSA in the
weeks of their employment in which said nurses and technicians worked
more than forty (40) hours per week[, and]
All current and former hourly paid nurses and technicians employed at all
DaVita locations excluding those in Arkansas, Florida, Georgia, Louisiana,
New York, Oklahoma, Tennessee, Texas, and Virginia, to provide direct
patient care at any time during the three years before this Complaint was
filed up to the present who, as a result of Defendant’s practice of not paying
for rest breaks 20 minutes or shorter in duration, did not receive all of the
overtime pay to which they were entitled under the FLSA in the weeks of
their employment in which said nurses and technicians worked more than
forty (40) hours per week.
1 When this Court cites to docket entries filed in Lightner, the Court uses the convention
“ECF No. __.”
Case No. 1:21-cv-03033-NYW-KAS Document 173 filed 07/30/24 USDC Colorado
pg 3 of 9

4
[Id. at ¶ 6]. In other words, the Lightner plaintiff seeks to assert claims that Mr. Bowling
was precluded from bringing and on behalf of a collective that Mr. Bowling was precluded
from acting on behalf of.
Judge Starnella issued the Scheduling Order in Lightner on March 7, 2024.
[Lightner, ECF No. 33]. Like this case, Lightner is to proceed through discovery in three
phases. [Id. at 6]. Lightner’s first phase of discovery ended on July 21, 2024, [id. at 7–
8], and the Lightner plaintiff’s motion for conditional certification is due August 21, 2024,
[id. at 7].
Mr. Bowling now asks this Court to consolidate this case with Lightner. [Doc. 151
at 1]. He argues that consolidation is appropriate because the cases “involve the same
employee groups (nurses and technicians) against the same corporate Defendant Davita,
Inc., the same counsel, the same Court and Judges, the same [FLSA] collective action
allegations, the same facts, similar witnesses, and the same pay and time documentary
evidence.” [Id.]. Defendant opposes consolidation, arguing that (1) Bowling and Lightner
involve materially different questions of law and fact, [Doc. 162 at 4]; (2) consolidation will
delay progression of Bowling and prejudice DaVita and the Bowling opt-in plaintiffs, [id.
at 7, 10]; and (3) consolidation will confuse the jury, [id. at 12]. 	DaVita contends that
requesting consolidation is Plaintiff’s attempt to circumvent the rulings that narrowed his
claims in this case. [Id. at 1]. The Court addresses the Parties’ arguments below.
LEGAL STANDARD
Rule 42 permits a court to consolidate civil actions that “involve a common question
of law or fact.” 	Fed. R. Civ. P. 42(a)(2). 	The purpose of Rule 42 is “to give the court
broad discretion to decide how cases on its docket are to be tried so that the business of
Case No. 1:21-cv-03033-NYW-KAS Document 173 filed 07/30/24 USDC Colorado
pg 4 of 9

5
the court may be dispatched with expedition and economy while providing justice to the
parties.” 	Breaux v. Am. Fam. Mut. Ins. Co., 220 F.R.D. 366, 367 (D. Colo. 2004)
(quotation omitted). 	As such, judicial economy and fairness to the parties are factors
courts consider when ruling on motions to consolidate. 	Young v. Frontier Airlines, Inc.,
No. 20-cv-01153-PAB-KLM, 2020 WL 4193506, at *1 (D. Colo. July 21, 2020).
The party moving for consolidation bears the burden to show that consolidation of
cases is warranted. 	Daniel T. v. Bd. of Cnty. Comm’rs for Cnty. of Otero, No. 07-cv-
01044-WPL-LCS, 2008 WL 11399520, at *1 (D.N.M. Mar. 20, 2008). 	The decision to
consolidate cases is within “the sound discretion of the trial court.” 	Decoteau v.
Raemisch, 304 F.R.D. 683, 691 (D. Colo. 2014).
ANALYSIS
Plaintiff argues that the Bowling and Lightner cases should be consolidated
because (1) the cases involve common questions of fact and law; (2) consolidation would
conserve judicial resources “because it would eliminate duplicative briefings, hearings,
and trial,” and (3) consolidation would not prejudice any party. [Doc. 151 at 5–9]. For the
reasons set forth in this Order, the Court respectfully disagrees.
First, the Court acknowledges the similarities between the two cases at a high
level—both cases allege violations of the FLSA by DaVita with respect to its nurses and
technicians. See [Doc. 31 at ¶¶ 1–4; Lightner, ECF No. 1 at ¶¶ 1–4]. However, Lightner
involves a more expansive set of allegations, alleging that DaVita not only deprived
nurses and technicians of meal breaks, but also rest breaks, and seeks to assert claims
on two collective groups of nurses and technicians with a far wider reach than the
conditionally certified collective in this case. See [Lightner, ECF No. 1 at ¶¶ 4, 6, 31–34].
Case No. 1:21-cv-03033-NYW-KAS Document 173 filed 07/30/24 USDC Colorado
pg 5 of 9

6
While Plaintiff argues that the two cases “do not involve different defenses [or] legal
analysis” and instead “arise from the same conduct—Defendant’s failure to pay for all
hours worked,” [Doc. 151 at 6], the Court respectfully finds that this argument is overly
simplistic. 	The 	Court 	already 	concluded, 	in 	the 	context 	of 	ruling 	on 	conditional
certification, that Plaintiff in this case had not provided any evidence that there is a
company-wide policy or practice across all DaVita locations with respect to the alleged
meal-break violations. See [Doc. 92 at 14–15]. If there is no such company-wide policy,
the relevant facts or law may differ by state, or even by DaVita location. The Court is thus
not convinced, at this point in the litigation, that overlap between the two cases renders
consolidation appropriate.
Next, insofar as Plaintiff says that consolidation would conserve judicial resources,
this assertion is qualified by the statement that the conservation of resources would occur
“after Phase II discovery is completed, assuming Lightner is conditionally certified as a
collective action.” 	[Doc. 151 at 7]. 	In other words, the Court would need to pause all
progress in Bowling while the anticipated motion for conditional certification in Lightner is
filed, briefed, and ruled on, and then continue that delay until the second phase of
discovery is completed in Lightner. The Court is not inclined to inject delay into this case,
which was filed in 2021, especially when there is no guarantee that the Court will grant
conditional certification in Lightner (or, if granted, the scope of the collective conditionally
certified). Cf. David A. Bovino P.C. v. MacMillan, No. 12-cv-00551-PAB-KMT, 2015 WL
3903111, at *4 (D. Colo. June 24, 2015) (considering that one case had been pending for
more than three years, had completed discovery and other pretrial matters, and had been
set for trial in declining to consolidate it with newer case). 	“[C]ases that linger on the
Case No. 1:21-cv-03033-NYW-KAS Document 173 filed 07/30/24 USDC Colorado
pg 6 of 9

7
Court’s docket are more difficult to manage,” Bitco Gen. Ins. Corp. v. Genex Constr. LLC,
No. 16-cv-01084-WJM-NYW, 2016 WL 8608452, at *1 (D. Colo. Sept. 13, 2016), and
“[t]he Court has an interest in managing its docket by having the cases on its docket
proceed expeditiously,” WildEarth Guardians v. IRG Bayaud, LLC, No. 14-cv-01153-
MSK-KLM, 2014 WL 4748296, at *7 (D. Colo. Sept. 24, 2014). 	Accordingly, the Court
does not find that consolidation is in the interest of judicial economy.
The Court also finds that consolidation might lead to confusion of the issues for the
jury, the Parties, and the Court. 	The Court acknowledges that many questions remain
with respect to final certification in this case and conditional certification in Lightner, but
assuming that the collective in this case and the proposed collectives in Lightner are
finally certified, the jury would be required to keep straight three separate collectives,
some of which have overlapping allegations and some of which do not. Even with curative
and detailed jury instructions, the Court is concerned that it would be unable to fully
eliminate the risk of confusion and that the efforts required to alleviate confusion—from
both the Court and the Parties—would eliminate any efficiency gained from consolidation.
And the Court’s consideration of juror confusion is particularly relevant here, where
Plaintiff has been precluded from raising claims based on a failure to pay for rest breaks
and on behalf of nurses or technicians in 41 states. Cf. Anderson v. Nat’l City Bank, No.
06-cv-02427-REB-MJW, 2007 WL 3090801, at *1 (D. Colo. Oct. 19, 2007) (denying
motion where “consolidation would essentially permit plaintiff to pursue claims that have
already been determined to be procedurally barred in this case”); see also Daniel T., 2008
WL 11399520, at *2 (denying consolidation where the “minimal saving on judicial
resources [wa]s low, while the possibility of jury confusion and prejudice . . . [wa]s high”).
Case No. 1:21-cv-03033-NYW-KAS Document 173 filed 07/30/24 USDC Colorado
pg 7 of 9

8
Finally, Plaintiff mentions in his Reply that consolidation would “result[] in less
expense and burden to the Parties.” [Doc. 164 at 3]. However, the judges and attorneys
are the same across both cases, which should assist in streamlining discovery. 	See
Aragon v. Weiss, No. 16-cv-02115-PAB-MJW, 2016 WL 11697240, at *2 (D. Colo. Nov.
22, 2016) (“The attorneys who represent plaintiff and defendant in each case are the
same in all cases. 	Thus, there are no hurdles to communication among the different
cases. There also do not appear to be any impediments to cooperation among counsel
to streamline the discovery process.” (citation omitted)). 	And the Court must note that
any extra expenses arising from having two pending parallel cases are at least partially
attributable to Plaintiff and his counsel’s litigation decisions in this case, and the Court is
not convinced that the consequences of those litigation strategies are enough to warrant
consolidation.
In the alternative, Plaintiff asks the Court to consolidate the cases for purposes of
conducting discovery. [Doc. 151 at 9–10]. In support, Plaintiff argues only that “there will
be significant overlap between Bowling and Lightner as it relates to discovery.” 	[Id. at
10]. This cursory argument is insufficient to convince the Court that consolidation of these
cases for discovery is warranted. 	Bowling and Lightner are in two different phases of
discovery and two different stages of litigation, and Plaintiff does not explain how the
cases may be efficiently consolidated for discovery or how consolidation would not result
in the procedural delays in Bowling discussed above. Moreover, the Parties may discuss
with Judge Starnella ways to streamline discovery or minimize costs, such as discussing
whether discovery propounded in this case may be used in Lightner, or vice versa. See
Sikora v. CBM Partners Corp., No. 13-cv-00195-WJ-RHS, 2013 WL 12155227, at *2
Case No. 1:21-cv-03033-NYW-KAS Document 173 filed 07/30/24 USDC Colorado
pg 8 of 9

9
(D.N.M. June 3, 2013) (“To the extent that some discovery may overlap, duplication can
be minimized or avoided, since parties may request the use of discovery and deposition
testimony from both cases to be used in more than one of the cases.”).
If it becomes clear during discovery that common questions of law and fact exist
between the two cases, and if Plaintiff uncovers any evidence of a company-wide policy
applicable 	to 	both 	cases 	broadly, 	the 	Court 	may 	entertain 	a renewed motion 	to
consolidate the cases for trial. 	But at this time, Plaintiff has not demonstrated that
consolidation of these cases is appropriate or necessary.
CONCLUSION
For these reasons, it is ORDERED that:
(1) 	Plaintiff’s Opposed Motion to Consolidate with Related Case [Doc. 151] is
DENIED without prejudice.
DATED: July 30, 2024 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
Case No. 1:21-cv-03033-NYW-KAS Document 173 filed 07/30/24 USDC Colorado
pg 9 of 9