Oldershaw v. DaVita Healthcare Partners, Inc. et al

Filing 130

SUPPLEMENTAL OPINION AND ORDER WITH REGARD TO BIFURCATION OF CLAIMS by Chief Judge Marcia S. Krieger on 6/1/17. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 15-cv-01964-MSK-NYW
KELSEY OLDERSHAW, individually and on behalf of others similarly situated,
ELINA NAVARRO;
JANE STANT;
JAYMIE STEVENS;
DENISE LANDIN;
ARCANDRICE RATCLIFF; and
GEORGIA HAMREN,
Plaintiffs,
v.
DAVITA HEALTHCARE PARTNERS, INC.; and
TOTAL RENAL CARE INC.,
Defendants.

SUPPLEMENTAL OPINION AND ORDER WITH REGARD TO BIFURCATION OF
CLAIMS

This Opinion and Order supplements the Court’s January 18, 2017 oral ruling in which it
bifurcated claims. Such ruling was made in conjunction with the Plaintiffs’ Motion for Approval
of Notice (#60) and Amended Motion for Approval of Notice (#63).
BACKGROUND
Defendant Total Renal Care, Inc. is a wholly owned subsidiary of Defendant DaVita
Healthcare Partners, Inc. Both companies are based in Denver, Colorado. Total Renal Care, Inc.
provides medical care at clinics located in all fifty states.

1

The Plaintiffs1 are current and former employees of the Defendants. They seek to recover
overtime wages for work performed outside of scheduled shift hours, on weekends, and during
lunch breaks. Two types of claims are asserted – federal claims arising under the Fair Labor
Standards Act (“FLSA”) and state claims arising under the Colorado Wage Claim Act (“CWCA”).
For the FLSA claims, the plaintiffs pursue a “collective action” under 29 U.S.C. § 216(b), and for
the state claims they seek certification of a “class action” under Federal Rule of Civil Procedure
23.
The Court has approved a Hoffman-LaRoche notice for the FLSA claims, and a number of
additional Plaintiffs have filed consents. At the same time it approved the Hoffman-LaRoche
notice for the FLSA claim, the Court orally bifurcated the FLSA claims from the CWCA claims
and directed that the FLSA claims proceed first. This Order further explains the Court’s reasoning.
ANALYSIS
This action, like many, couples federal claims under FLSA claims with state law claims.
The Court’s subject matter jurisdiction arises by virtue of the FLSA claims. 28 U.S.C. § 1331. It
exercises supplemental jurisdiction over the state law claims.
The Court has broad discretion to manage actions before it, which includes discretion to
bifurcate claims. Easton v. City of Boulder, 776 F.2d 1441, 1447 (10th Cir. 1985); Coffeyville Res.
Ref. & Mktg., LLC v. Ill. Union Ins. Co., 979 F.Supp.2d 1199, 1206 (D. Kan. 2013).Bifurcation is
governed by Federal Rule of Civil Procedure 42(b). Under Rule 42(b), bifurcation is appropriate:
(1) for convenience, (2) to avoid prejudice, or (3) to expedite and economize resolution of the
matter, when doing so is not unfair or prejudicial to a party. Angelo v. Armstrong World Indus.,

1

The action was initiated by Ms. Oldershaw. The other named plaintiffs opted-in to the
action after receiving a Hoffman-LaRoche notice.
2

Inc., 11 F.3d 957, 964 (10th Cir. 1993). After reflection upon the differences between the nature of
and processes used for resolution of FLSA claims and CWCA claims, the Court finds that
bifurcation and staged presentation of the claims is appropriate.
I.

The Differences between FLSA and CWCA claims
Although FLSA and CWCA claims both address minimum wage and/or overtime

violations, they provide different substantive remedies and employ different procedural
mechanisms. Substantively, the FLSA requires that employers pay non-exempt employees federal
minimum wage, currently $7.25 an hour, and one and one-half times their regular hourly rate for
any hours worked in excess of 40 hours in a single work week. 29 U.S.C. §§ 206(a), 207. An
employer who fails to do so is liable to its employees for the unpaid wages plus liquidated damages
that include costs and attorney’s fees. 29 U.S.C. § 216(b). In contrast, the CWCA requires
employers to pay non-exempt employees the Colorado minimum wage, currently $9.30 an hour,
and one and one-half times their regular hourly rate for any hours worked in excess of 40 hours in
a single work week, 12 hours in a single work day, or 12 consecutive hours, excluding duty-free
meal periods, whichever results in the greatest calculation of wages. Colo. Rev. Stats. §§ 8-6-104–
06; 7 Colo. Code. Regs. §§ 1103-1:3, 1:4. An employer who fails to do so is liable to its employees
for the unpaid wages as well as costs and attorney’s fees. Colo. Rev. Stats. §§ 8-6-118; 7 Colo.
Code. Regs. § 1103-1:18.
Each statutory source anticipates that multiple employees or former employees may assert
claims in a single action, but a different mechanism is used for each claim. For FLSA claims, a
“collective action” is used. A “collective action” is described as one that “may be maintained
against any employer ... by any one or more employees for and in behalf of himself or themselves
and other employees similarly situated.” 29 U.S.C. § 216(b). But beyond this description, neither
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the FLSA nor any federal rule of procedure addresses how a “collective action” is to be
administered. CWCA claims brought in federal court can also be pursued in a single action, but
not as a “collective action”. They are pursued, instead, as a “class action” in accordance with Fed.
R. Civ. P. 23.
For many years, courts and counsel have treated the FLSA “collective action” as the
functional equivalent of a Rule 23 “class action” but with slightly modified certification
requirements.2 But in 2013, the United States Supreme Court identified important differences
between a FLSA “collective action” and a Rule 23 “class action”. In Genesis Healthcare Corp. v.
Symczyk, 133 S. Ct. 1523, 1529-31 (U.S. 2013), the Supreme Court was presented with an FLSA
“collective action” in which all potential “opt-in” plaintiffs had settled without joining the suit, and
the named plaintiff had been presented with a Rule 68 offer sufficient to satisfy her individual
claim. The named plaintiff refused to accept the Rule 68 offer in reliance on Rule 23 jurisprudence.
She argued that as the representative plaintiff, her interest in the action (and therefore her
recovery) extended beyond her individual claim. The Court disagreed, holding that the named
plaintiff’s claim was moot.
At first blush, the Genesis holding does not appear remarkable; after all, the named
plaintiff was offered the amount of her possible recovery under the FLSA. However, the Court’s
reasoning reveals important distinctions between a FLSA “collective action” and a Rule 23 “class
action”. The Court explicitly concluded that a named plaintiff in an FLSA action has no interest
in the “collective action” beyond her individual claim because no separate legal entity is created.

2

See, e.g. Wilkerson v. Martin Marietta Corp., 875 F. Supp. 1456 (D. Colo. 1995); Shushan
v. Univ. of Colo., 132 F.R.D. (D. Colo. 1990); Pietrzycki v. Heights Tower Serv., Inc., 197 F. Supp.
3d 1007 (N.D. Ill. 2016); Church v. Consol. Freightways, Inc., 137 F.R.D. 294 (N.D. Cal. 1991);
H&R Block, Ltd. v. Housden, 186 F.R.D. 399 (E.D. Tex. 1999).
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This is fundamentally different from a “class action” in which certification creates a “plaintiff
class” which is then represented by the named plaintiff and plaintiff’s counsel. In an FLSA
“collective action” every named and “opt-in” plaintiff pursues his or her individual claim. See
Almanzar v. C&I Assocs., Inc., 175 F. Supp. 3d 270, 279 n.3 (S.D.N.Y. 2016); 7B Charles Alan
Wright, Arthur R. Miller, Fed. Prac. & Proc. § 1807 (3d ed. 2011)
There are several logical corollaries to this distinction. First, the applicable statute of
limitation is calculated differently. In a FLSA “collective action”, it is individually calculated
with regard to each plaintiff based on the date when the plaintiff joins the action, either as the
original named plaintiff or the date the plaintiff “opts-in” by filing a consent.

In a Rule 23 “class

action”, however, a single calculation of the statute of limitation applies to the “plaintiff class”
based on the date the action is filed. Compare 29 U.S.C. § 256 with Am. Pipe & Constr. Co. v.
Utah, 414 U.S. 538, 551-52 (1974). Second, the FLSA “collective action” acts much like a civil
suit with many plaintiffs who pursue their own claims. They may have different counsel, make
different pre-trial decisions, may settle on different terms or some may settle and others go to trial.
In contrast, in the Rule 23 “class action”, the representative plaintiff(s) and class counsel act for the
class.
Reflecting upon the teachings of Genesis, the thoughts of other courts, and the writings of
legal scholars,3 this Court is convinced that the differences between an FLSA “collective action”

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Turner v. Chipotle Mexican Grill, Inc., 123 F.Supp.3d 1300 (D. Colo. 2015) is illustrative.
In Turner, Judge Kane analyzed the history and intent behind the FLSA § 216(b) process and
concluded that there was unnecessary confusion between, and conflation of, FSLA “conditional”
certification and “class certification” under Rule 23. See also Halle v. W. Penn Allegheny Health
Sys. Inc., 842 F.3d 215, 222-27 (3d Cir. 2016); Vazquez v. Grunley Const. Co., 200 F.Supp.3d 93,
97-98 (D. D.C. 2016); Perez v. DeDomenico Pizza & Rest., Inc., 204 F.Supp.3d 494, 495-96
(E.D.N.Y. 2016); McClendon v. U.S., No. 12-81c, 2013 WL 285584 (Fed. Cl. Jan. 24, 2013); 7B
Charles Alan Wright, Arthur R. Miller, Fed. Prac. & Proc. § 1807 (3d ed. 2011); Scott A. Moss &
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and a Rule 23 “class action” make the simultaneous consideration of both types of claims
unworkable, inconvenient, costly and potentially prejudicial to some employee plaintiffs.
Examples of the conflicts between the FLSA “collective action” and state law claim “class action”
follow.
A. Certification
Certification occurs in both the “collective action” and the “class action”, but its meaning
and effect differs. In this respect, the Court agrees with the careful and thoughtful reasoning of
Judge Kane in Turner v. Chipotle Mexican Grill, Inc., 123 F.Supp.3d 1300 (D. Colo. 2015) that
“conditional certification” in a “collective action” is somewhat of a misnomer.
With regard to FLSA claims, “conditional certification” is the vehicle by which a court
authorizes a named plaintiff to give a Hoffman-LaRoche4 type of notice to other employees or
former employees. Genesis Healthcare Corp., 133 S. Ct. at 1530. The purpose of the notice is to
alert potentially aggrieved individuals that they can join the lawsuit by filing a written consent.
Hoffman- LaRoche, 493 U.S. at 169-74. Giving this notice early in the case helps protect the rights
of employees and former employees because filing of the consent tolls any statute of limitation.
Consonant with the notice’s limited purpose, the standard for court approval is lenient. A court
need only find that there are substantial allegations that individuals other than the named
plaintiff(s) were victims of a single decision, plan, or policy of the defendant employer. See
Thiessen v. Gen. Elec. Capital Corp., 267 F. 3d 1095, 1102 (10th Cir 2001). After discovery is
Nantiya Ruan, The Second-Class “class action”: How Courts Thwart Wage Rights by
Misapplying “class action” Rules, 61 Am. U. L. Rev. 523 (2012); Allan G. King, Camille C.
Ozumba, Strange Fiction: The “Class Certification” Decision in FLSA “collective action”s, 24
Lab. Law 267 (2009)
4
Hoffman-La Roche v. Sperling, 493 U.S. 165 (1989). Hoffman-La Roche was an Age
Discrimination in Employment Act (“ADEA”) case. The ADEA expressly incorporates the
FLSA’s enforcement provisions.
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completed, a court may be asked to determine whether the plaintiffs who “opt-in” are similarly
situated pursuant to 29 U.S. C. § 216(b).
In contrast, certification of a class under Rule 23 is more significant and serves an entirely
different purpose. Rule 23 class certification creates an entirely new legal entity – a class of
unnamed plaintiffs – whose interests generally are represented by “class counsel” and the named
plaintiff(s). Fed. R. Civ. P. 23(g); Genesis Healthcare Corp, 133 S. Ct. at 1230. Among the
prerequisites for class certification is the requirement that the number of potential plaintiffs is so
large that they cannot individually join in the action (which is contrary to the concept of “opting
in” to an FLSA action) and that the named plaintiffs and class counsel (called representative
parties) will fairly and adequately protect the interests of class members. Fed. R. Civ. P. 23(b),
(c)(3), (e) & (g).
B. “Opting-in” and “Opting-out”
The manner in which individuals join and participate in an FLSA “collective action” and a
Rule 23 “class action” also differs. In the FLSA “collective action”, an employee or former
employee joins the action by “opting- in”, the euphemism for filing a consent with the court.
The consent acts to identify the employee’s individual claim. 29 U.S.C. § 216(b); Genesis
Healthcare Corp, 133 S. Ct. at 1530. Claims of potential plaintiffs who do not “opt-in” are
unaffected by the lawsuit. Thus the affirmative act with regard to FLSA “collective actions” is to
join the action.
In contrast, all potential plaintiffs who fall within the description of a Rule 23 class are
presumed to be members of the “plaintiff class” unless they “opt-out”. For some types of classes
there is no right to “opt-out”. See Fed. R. Civ. P. 23(c)(2)(B)(v), (vii). If a member of a Rule 23
class fails to “opt out”, he or she is bound by the outcome of the litigation. Thus, the affirmative
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act with regard to a “class action” is to refuse to participate in the action.
C. Role in the lawsuit
As noted in Genesis, in an FLSA “collective action” every plaintiff, original or “opt-in”, is
free to pursue his or her individual claim. Although Genesis does not delineate all of the
implications of this, some are logically apparent. Arguably, each plaintiff can choose his or her
counsel5, accept or reject a settlement proposal, and decide to go to trial. In these respects, an
“opt-in” plaintiff is no different from the original plaintiff who filed the Complaint. The “opt-in”
plaintiff may choose to ride on the coattails of the original plaintiff or be represented by the
counsel for the original plaintiffs, but he or she is not obligated to do. See Almanzar, 175
F.Supp.3d at 279 n.3; 7B Charles Alan Wright, Arthur R. Miller, Fed. Prac. & Proc. § 1807 (3d ed.
2011).
In contrast, individual members of a Rule 23 class do not individually participate in the
case. Indeed, some may not even be known at the time the matter goes to trial or settlement terms
are agreed to. Because the class is represented by the “class representative” and “class counsel”,
short of opting out of the class or moving to intervene, an individual plaintiff has few means to
control disposition of his or her individual claim. See e.g. Guthrie v. Evans, 815 F.2d 626, 628
(11th Cir. 1987), rev’d by Delvin v. Scardelletti, 536 U.S. 1, 14 (2002) (suggesting that class
members who disagree with the representative plaintiff’s decisions must move to intervene if they
wish to be heard).

5

See Snively v. Peak Pressure Control, LLC, 174 F. Supp. 3d 953, 962 (W.D. Tex. 2016);
Rosario v. Valentive Ave. Disc. Store, Co., 828 F. Supp. 2d 508, 520 (E.D.N.Y. 2011); Benavides
v. Serenity Spa NY Inc., 166 F. Supp. 3d 474, 486 (S.D.N.Y. 2016). In contrast, only one of the
three types of Rule 23 classes gives class members the right to retain independent counsel. Fed. R.
Civ. P. 23(c)(2)(B)(iv).
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D. Settlement
Due to the differing degrees of plaintiff autonomy, how settlement is accomplished may
differ in an FLSA “collective action” and a Rule 23 “class action”. In a “class action”,
negotiations are more streamlined because they conducted with the class representative and class
counsel, but because the members of the class have no input, any settlement requires court
approval.
In a FLSA “collective action”, however, each FLSA plaintiff is free to settle or litigate his
or her own claim regardless of what the original plaintiff or his/her counsel does. As a result, each
plaintiff is empowered to assess the merits and drawbacks of a settlement proposal, but there is a
risk that no global settlement will be reached. In light of the increased autonomy that plaintiffs in
a “collective action” have, this Court and others have begun to question whether settlements of
“collective action” claims should require court approval, or whether they should be treated as
would a settlement in any other action with multiple plaintiffs. See e.g. Martinez v. Bohls Bearing
Equip. Co., 361 F.Supp.2d 608, 618-31 (W.D. Tex. 2005); Ruiz v. Act Fast Delivery of Colo., Case
No. 14-cv-00870-MSK-MJW, Docket # 132 (D. Colo. Jan. 9, 2017). In multi-plaintiff actions,
judicial approval of a settlement agreement is not required except when stated by statute, and there
is no express requirement in 29 U.S.C. § 216 that a court approve an FLSA settlement.
II.

Difficulties in administration of cases involving both FLSA “collective action”
claims and Rule 23 “class action” state law claims
The inherent differences between a FLSA “collective action” and state law claims pursued

through a Rule 23 “class action” make it difficult to fashion appropriate procedures to protect the
rights of all parties. This becomes readily apparent when comparing the contents of a Hoffmann-La
Roche notice used in FLSA claims with a notice given with regard to Rule 23 class. Both notices

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are intended to advise employees and former employees as to their rights, but because those rights
are different, the disclosure is also different.
The Hoffmann-La Roche notice usually comes early in the suit. It describes the nature of
the FLSA “collective action”, the FLSA claim and remedies, and offers the recipient the
opportunity to “opt-in” to the action by filing a consent. It often advises recipients of their right to
be represented by counsel for the original plaintiff, to obtain independent representation, or to
participate pro se. It may also describe certain rights of an “opt-in” plaintiff (including the right not
to be bound by a settlement that the original plaintiff advocates). It will explain that if the
employee does not “opt-in” the action, the employee will not benefit from any recovery obtained
therein, but the employee can pursue an independent action or otherwise assert a claim.
None of these advisements are applicable to a Rule 23 notices with respect to state law
claims. The Rule 23 notice often is ssued later in a lawsuit, and sometimes only after a settlement
has been negotiated. Such notices also describe the rights and remedies available to the
employee, but based on state law (which may differ from FLSA) and Rule 23. The notice will
state that the class is represented by the named plaintiffs and class counsel and advise that the
employee need do nothing to participate in the class. In the absence of action, the employee will
be deemed to be a member of the class and will be bound by the outcome of the suit. The only
affirmative act for the employee would be to “opt-out” of the class, in which event he or she will
not benefit from the lawsuit, but may bring an individual one. Fed. R. Civ. P. 23(c)(2); Fager v.
CenturyLink Commc’ns, LLC, 854 F.3d 1167, 1171-74 (10th Cir. 2016). If the notice also
addresses a settlement, it may contain information as to the amount of the settlement and how it
will be distributed, such as whether the representative parties and counsel will receive a portion of
the settlement.
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The problem in a FLSA lawsuit with parallel state law claims is that employees may have
both federal and state claims, but notices pertaining to the claims will have inconsistent provisions.
If a single notice Hoffmann-La Roche and Rule 23 purposes is anticipated , the necessary
information may be complex and confusing. 6

This problem may also occur if separate notices

are sent to an employee within a short period of time. Not only must the recipient confronted with
the differences between FLSA claims and state claims and “collective actions” and “class actions,
the complex interplay between the claims can be important as well. There are at least 4
possibilities, for which a recipient may need advisement:
“opt-in” FLSA and No Action state claim

No action FLSA and No Action state claim

(“opt-in” plaintiff for FSLA claims and member (no participation for FLSA claims but member
of class for state law claims)
of class for state law claims)
“opt-in” FLSA and “opt-out” state claim

No action FLSA and “opt-out” state claim

(participate as to FLSA claims but not a class
member for state law claims)

(No participation on FLSA or state law claims)

A single notice or sequential notices run the risk of being overly complex, confusing and
apparently contradictory. For example, the notice might advise that an employee must “opt-in” to
participate in the FLSA claims, but the employee is automatically deemed to be a participant in the
“class” for state law claims unless he or she opts-out. Or it might instruct that the employee will be
represented by class counsel as to state claims but can be represented by his or her own attorney as
FLSA claims. In addition, the Notice might reflect that action must be taken as to some claims or
they will expire; but no action need be taken as to others.

6

None of the proposed notices tendered by parties in other combined FLSA-CWCA cases
have clearly, simply, and comprehensively addressed all of the information necessary to fully
advise an employee with regard to both federal and state law claims. Indeed, the Court has been
similarly unsuccessful in drafting an appropriate notice.
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Case administration complications are not limited to the notice conundrum, however. In a
FLSA “collective action” some plaintiffs may be represented by the original plaintiff’s attorney,
others may have independent counsel and others may appear pro se. If the plaintiffs
simultaneously pursue state law claims, they are likely represented by “class counsel”7. In such
event, it may become difficult or confusing as to who acts for whom, and because the state and
federal claims overlap to some degree it is possible that an attorney representing an employee on
the FLSA claim could take a different posture that the “class counsel” representing the same
employee on the state claim. This confusion can be compounded different state laws are brought
into play because employees who worked for the Defendant in different states. Separate Rule 23
classes class may be required for each state in which employees worked.
Settling claims can also be complicated. The attraction of settlement for a defendant is that
it caps its losses. But although state claims might be settled through negotiations with a class
representative and be subject to court approval, FLSA claims may have to be negotiated
individually, without court approval and with the risk that any plaintiff who does not settle may
proceed to trial. Further, the timing of settlement of FLSA claims might differ from that of state
law claims. For example, Employee A who has opted in with regard to FLSA and who has not
opted out with regard to the state claims may desire settle all of his or her claims with the
Defendant employer before other employees are ready to do so. Employee A can do so with regard
to the FLSA claims, but not with regard to the state claims except through a class settlement
approved by the Court.

7

Fed. R. Civ. P. Rule 23 authorizes “class action” under three circumstances. Rule
23(b)(1)-(3). In all of these circumstances, the Rule anticipates the appointment of class counsel.
Rule 23 (c)(1)(B), (g). However, in the third type of class, an attorney may enter an appearance on
behalf of a class member.
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III.

Benefits of Bifurcation

Admittedly, not all of the problems described above will occur in every case.
In this case, however, there has been confusion with regard to the Hoffman LaRoche notice, and
counsel for the original plaintiff assumed that such representation would extend to all FLSA
“opt-in” plaintiffs as would occur under with a Rule 23 class. In addition, the plaintiffs now wish
to employees who have worked for the Defendant at clinics outside of Colorado. If appropriate, a
second Hoffman LaRoche can be given with regard to the FLSA claims, but state law claims may
arise under the laws of various states. This could require creation of a number of Rule 23 classes.
The Court finds that these difficulties are best addressed by bifurcating the FLSA claims
from the state law claims, and sequencing their determination. The Court will begin with the
FLSA claims and stay all state law claims until the FLSA claims are resolved.
Proceeding with the FLSA claims prior to the state law claims accomplishes several
objectives. First, it best preserves the rights of the employees with regard to statutes of limitation.
Early issuance of a Hoffman LaRoche allows early consent to the suit, the operative date for statute
of limitation determination for FLSA claims.

With regard to the state law claims, calculation of

the statutes of limitation applicable to a “plaintiff class” remains unaffected. Second, many of the
factual issues inherent in FLSA and state law wage claims are the same – for example, who worked
when and what compensation was paid. Determination of these issues with regard to the FLSA
claims may have preclusive effect with regard to the state claims. This also may be true with regard
to the frequently contested issue as to whether a particular employee is exempt may only need to
be resolved once, as federal and state statutes recognize many of the same exemptions. Finally,
there are visceral (if not necessarily intellectual) justifications for beginning with FLSA claims.
These are the claims for which the Court has subject matter jurisdiction. Absent FLSA claims, the
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plaintiffs could proceed in state court. In addition, employees who go through the effort to
affirmatively “opt-in” to the FLSA claims arguably should have those claims prioritized as
compared to employees whose involvement in a Rule 23 class is entirely passive. Thus, bifurcation
and sequential litigation of the claims, with the FLSA claim proceeding to resolution before the
state law claim is addressed, serves the values of convenience and efficiency.
The Court has asked whether there will be undue prejudice to any party, and the parties
have identified none. The only criticism raised is that bifurcation may make comprehensive
settlement more difficult to achieve. That is, it may be difficult for plaintiffs to settle both federal
and state law claims simultaneously if the state law Rule 23 class certification proceedings have
not begun. To some extent, this is a cart-before-the-horse kind of problem – unless and until a class
is certified, there is no class for the plaintiff to represent and thus, no class-based relief to be
obtained. But even that issue has a solution through the “settlement only” class. See Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 618 (1997). If the parties reach a settlement of both the
FLSA and state law claims simultaneously, they can request that the Court entertain the class
certification question solely for the purposes of effectuating the settlement. The parties may wish
to devote their settlement efforts solely towards the FLSA plaintiffs who affirmatively opt in, or
they may instead attempt a global settlement while litigating only the FLSA claims. Nothing in the
bifurcation and sequential trial scheme precludes or hinders either approach.
Accordingly, it is the Court’s intention to handle this and other actions that include FLSA
and state law claims using bifurcation and sequential determination. Upon the filing of such cases,
the Court will sua sponte bifurcate the FLSA and state law claims, staying litigation of the latter
until the former are fully resolved. In a situation in which a party can show that it would be more
efficient to litigate the claims simultaneously, in part or whole, that party may move for relief from
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the bifurcation or otherwise seek reconsideration.
CONCLUSION
For the foregoing reasons, the Court hereby BIFURCATES the Plaintiffs’ FLSA claims
from the CWCA claims. Proceedings with regard to the CWCA claims are stayed until the FLSA
claims have been fully resolved, at which time, the stay will lift and litigation of the CWCA claims
can proceed.
DATED this 1st day of June, 2017.
BY THE COURT:

Marcia S. Krieger
United States District Court

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