Lightner v. DaVita, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-03104-NYW-KAS
ANDUIN LIGHTNER, individually and on behalf of all others similarly situated,
Plaintiff,
v.
DAVITA, INC.,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION AS MODIFIED
This 	matter is 	before the Court 	on 	the Recommendation of United States
Magistrate Judge Kathryn A. Starnella issued on January 20, 2026.1 [Doc. 134]. Judge
Starnella recommends that Defendant DaVita, Inc.’s Motion to Strike All Consent-to-Join
Forms (the “Motion to Strike”), [Doc. 104], be denied, see [Doc. 134 at 1].
The Recommendation states that objections to the Recommendation must be filed
within fourteen days after its service on the Parties. 	[Id. at 22]; see also 28 U.S.C.
§ 636(b)(1)(C). The Recommendation was served on January 20, 2026. See [Doc. 134].
No Party has objected to the Recommendation and the time to do so has elapsed.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
1 The Recommendation is dated January 18, 2026, but it was not entered on the Court’s
docket until January 20, 2026. See [Doc. 134].
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does not appear that Congress intended to require district court review of a [magistrate
judge’s] factual or legal conclusions, under a de novo or any other standard, when neither
party 	objects 	to 	those 	findings.”). 	In 	this 	matter, 	the 	Court 	has 	reviewed 	the
Recommendation to satisfy itself that there is “no clear error on the face of the record.”2
Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment. 	Based on this
review, the Court has concluded that the Recommendation is thorough, well-reasoned,
and a correct application of the facts and the law.
Ordinarily, the Court’s analysis would stop there. 	However, given the specific
nature and circumstances of this case, this Court is compelled to proceed. As an initial
matter, this Court is gravely troubled by the misstatements in Plaintiff’s pre-certification
communications to potential opt-in Plaintiffs, and in particular, the misrepresentation of
this Court’s rulings in Bowling v. DaVita, Inc., Case No. 21-cv-03033-NYW-KAS (D.
Colo.). 	See [Doc. 134 at 6 (citing [Doc. 104-4 at 7])]. Plaintiff does not object to Judge
Starnella’s observation—nor could she—that at least one of the email solicitations to
potential opt-in Plaintiffs states that “[a] federal judge in July 2023 found enough evidence
against DaVita to move forward with meal break violation claims on a collective action
basis for 9 states where the nurses/technicians worked in that case.” 	[Id.]. 	Judge
Starnella generously characterized this statement as misleading, rather than patently
false. 	[Id. at 7]. But this statement is, in fact, patently false. 	As Judge Starnella points
out, in resolving the motion for conditional certification in Bowling, this Court explicitly
stated that “the Court does not weigh evidence, resolve factual disputes, or reach the
2 This standard of review is something less than a “clearly erroneous or . . . contrary to
law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review,
Fed. R. Civ. P. 72(b).
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merits of the pending claims at the conditional-certification stage.” 	Bowling v. DaVita,
Inc., No. 21-cv-03033-NYW-KAS, 2023 WL 4364140, at *3 (D. Colo. Jul. 6, 2023). The
Court went on expressly state: 	“[i]n sum, the Court’s analysis is limited to whether Mr.
Bowling has met his burden at the initial stage—that is, whether he has made substantial
allegations that the Proposed Collective members were subject to a single decision,
policy, or plan.” 	Id. at *5 (emphasis added). 	Given the education and credentials that
Plaintiff’s counsel tout on their respective websites,3 and the fact that Bowling and this
case share counsel of record, including but not limited to Mr. Prieto, this Court struggles
to understand how such a misstatement is due to an inadvertent error.
Indeed, Plaintiff’s Response to the Motion to Strike does not mitigate the Court’s
concerns but rather further aggravates them. 	Plaintiff’s counsel wholly fails to address
Defendant’s argument that the reference to this specific alleged Court ruling is misleading.
Compare [Doc. 104 at 12–13], with [Doc. 113 at 15–16]. 	Instead, Plaintiff’s counsel
misled the Court regarding the Texas State Bar’s approval of his team’s solicitation
communications. See [Doc. 134 at 19–21]. The Texas State Bar certainly did not pass
on whether Plaintiff’s characterization of this Court’s ruling was permissible. 	See [Doc.
89-1 at 2]. And to the extent that Plaintiff suggests that Defendant’s Motion to Strike is a
“litigation tactic,” [Doc. 113 at 9–10], this Court notes that nothing in the record suggests
that Plaintiff’s counsel took any independent curative action prior to filing Plaintiff’s Motion
for Conditional Certification, see [Doc. 72]. Rather, Plaintiff’s counsel simply proceeded
as if Defendant’s refusal to agree to their specific, proposed curative measure somehow
3 See About Us, Wage and Hour Firm, https://wageandhourfirm.com/about-us/; see also
Background & Experience, Kennedy Law Firm, LLP, https://kennedyattorney.com/about-
us/.
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absolved any misconduct on their part.
For at least these reasons, this Court respectfully departs from Judge Starnella’s
Recommendation regarding the appropriate timing of a curative notice. Judge Starnella
recommends that a curative notice be sent to opt-in Plaintiffs if the Court grants the
pending Motion for Conditional Certification and the Court issues a regular opt-in notice.
See [Doc. 134 at 21–22]. But here, as implicitly acknowledged by Plaintiff, see [Doc. 113
at 10], a curative notice and corrected consent forms are appropriately directed at, and
executed by, existing opt-in Plaintiffs before the Court rules on the pending Motion for
Conditional 	Certification. 	To 	proceed 	with 	ruling 	on 	the 	Motion 	for 	Conditional
Certification on the current record would amount to this Court simply ignoring the conduct
described in Judge Starnella’s Recommendation and herein. That simply cannot be.
Accordingly, the Court concludes that, before the pending Motion for Conditional
Certification may be ruled on, Plaintiff must send curative notices to all individuals who
have opted-in to this case.4 The Parties are ORDERED to meet and confer about (1) the
substance of an appropriate curative notice and corrected consent form; (2) how the
curative notice shall be provided to existing opt-in Plaintiffs; and (3) a reasonable
timeframe for providing the curative notice to opt-in Plaintiffs and any deadline for the opt-
in Plaintiffs to submit their corrected consent forms. 	On or before March 4, 2026, the
Parties shall file a Joint Status Report setting forth their proposals. 	The Parties are
ORDERED to engage in good-faith efforts to come to a consensus on as many
issues as practicable.
4 This ruling does not apply to any opt-in Plaintiffs who have withdrawn their consent
forms or have otherwise been dismissed from this case.
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Furthermore, in the interest of judicial economy, the Court elects to administratively
close this case pending the resolution of the issues identified above—namely, the Court’s
approval of the Parties’ proposal(s), the provision of curative notices to opt-in Plaintiffs,
and the submission of corrected consent forms.5 	The Court will lift the administrative
closure once the corrected consent forms have been submitted, and it will rule on the
Motion for Conditional Certification at that time, based on the evidence that is properly
before the Court. 	The Parties are specifically advised that no further briefing or
evidence beyond the corrected consent forms is anticipated or permitted.
Accordingly, it is ORDERED that:
(1) 	The 	Recommendation 	of 	United 	States 	Magistrate 	Judge 	Kathryn 	A.
Starnella [Doc. 134] is ADOPTED as modified;
(2) 	Defendant 	DaVita, 	Inc.’s 	Motion 	to 	Strike 	All 	Consent-to-Join 	Forms
[Doc. 104] is respectfully DENIED;
(3) 	The Parties shall meet and confer about (1) the substance of an appropriate
curative notice and corrected consent form; (2) how the curative notice shall
be provided to existing opt-in Plaintiffs; and (3) a reasonable timeframe for
providing the curative notice to opt-in Plaintiffs and any deadline for the opt-
in Plaintiffs to submit their corrected consent forms;
(4) 	The Parties SHALL engage in good-faith efforts to come to a consensus on
as many of the above-listed issues as practicable. On or before March 4,
5 Administrative closure is “the practical equivalent of a stay.” 	Quinn v. CGR, 828 F.2d
1463, 1465 n.2 (10th Cir. 1987). This procedure permits the Court to manage its docket
by “shelv[ing] pending, but dormant, cases” without “making any final adjudication.”
Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 392 (1st Cir. 1999).
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2026, the Parties SHALL file a Joint Status Report setting forth their
proposals;
(5) 	DaVita Inc.’s Motion to Stay Decision of Plaintiff’s Opposed Motion for FLSA
Conditional 	Certification 	and 	Court-Authorized 	Notice 	[Doc. 	83] 	is
GRANTED; and
(6) 	This case is ADMINISTRATIVELY CLOSED pending the Court’s approval
of the Parties’ proposal(s), the provision of curative notices to opt-in
Plaintiffs, and the submission of any corrected consent forms.
DATED: February 11, 2026 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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