Opinion
Civil Action 21-cv-03033-NYW-KLM
04-10-2023
JAMES BOWLING, individually and on behalf of all others similarly situated, Plaintiff, v. DaVITA, INC., Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix United States Magistrate Judge
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 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.
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.
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.
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. 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].
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.
Based on the foregoing, the Court finds that Plaintiff has failed to meet the good cause requirement of Rule 16(a)(4).
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 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 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 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.
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.
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).