Santich v. VCG Holding Corp. et al

Filing 239

ORDER Denying 235 Motion for Partial Reconsideration, by Judge Raymond P. Moore on 6/2/2020.(rvill, )

Case 1:17-cv-00631-RM-MEH Document 239 Filed 06/02/20 USDC Colorado Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 17-cv-00631-RM-MEH
GEORGINA SANTICH, et al., individually and on behalf of all others similarly situated,
Plaintiffs,
v.
VCG HOLDING CORP, et al.,
Defendants.
______________________________________________________________________________
ORDER DENYING MOTION FOR PARTIAL RECONSIDERATION
______________________________________________________________________________
This matter is before the Court on Plaintiffs’ “Motion for Partial Reconsideration of
March 30, 2020 Order [Doc. 234]” (the “Motion”) (ECF No. 235) which is now fully briefed.
Upon consideration of the Motion, and being otherwise fully advised, the Court finds and orders
as follows.
I.

BACKGROUND1
By Order dated March 30, 2020, as relevant here, the Court ordered (the “Order”) (1)

Plaintiffs to proceed to arbitration on their claims against Defendants who are signatories to the
arbitration agreements and (2) the case administratively closed as to claims against the remaining
Defendants – the nonsignatories to the arbitration agreements. Plaintiffs now move for
reconsideration, arguing the claims against the nonsignatory Defendants should be allowed to go
forward because, at the time of the Order, there was one person (DeAnna Case) who consented
1

The matters and issues which precede this Order are many and varied; this Order assumes the reader’s familiarity
with such history.

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to join (opted-in) this putative collective action but only as to claims against the nonsignatory
Defendants.2 In other words, Plaintiffs apparently now purportedly consist of two groups: (1)
individuals who assert claims against all Defendants (signatories and nonsignatories to
arbitration agreements) and (2) one individual (Ms. Case) who asserts claims against only the
nonsignatory Defendants. Plaintiffs contend Ms. Case would be prejudiced if she is prevented
from going forward with the nonarbitrable claims, the only claims which she contends she has
consented to join.
Plaintiffs’ Motion argues the Court “overlooked” that Ms. Case had consented to join
only the nonarbitrable claims and requests the Court to modify its Order and allow the claims
against the nonsignatory Defendants to proceed by not only Ms. Case but also apparently all
Plaintiffs and all others who subsequently consent to join this action against only the
nonsignatory Defendants. Further, subsequent to the Order, Plaintiffs filed an additional consent
to join by Lyndsey Saxon, limited to claims against the nonsignatory Defendants.3
II.

LEGAL STANDARD
“The Federal Rules of Civil Procedure do not recognize a ‘motion for reconsideration.’

But that is not to say that such motions are prohibited. After all, ‘a district court always has the
inherent power to reconsider its interlocutory rulings’ before final judgment is entered.” Spring
Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1023-24 (10th Cir.
2018) (citations omitted). And, in considering such interlocutory motions, “the district court is
not bound by the strict standards for altering or amending a judgment encompassed in Federal
Rules of Civil Procedure 59(e) and 60(b).” Id. at 1024 (emphasis added) (quotation marks and
2
3

ECF No. 233.
ECF No. 236.
2

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citation omitted). That is not to say, however, that the court may not consider such standards. See
generally Fye v. Oklahoma Corp. Comm’n, 516 F.3d 1217, 1224 (10th Cir. 2008) (affirming
district court’s decision not to review its prior ruling upon that court’s finding that
“‘considerations of fairness and judicial economy clearly outweigh[ed] Plaintiff’s interest in
getting a second (or third) bite at the summary judgment apple’”). After all, the Court has broad
discretion. Spring Creek, 887 F.3d at 1024.
III.

DISCUSSION
Defendants oppose Plaintiffs’ Motion raising three arguments. The Court addresses them

in turn.
Waiver. Defendants argue Plaintiffs waived this argument concerning Ms. Case because
they could have but did not raise it earlier. As Defendants assert, and the Court agrees, Plaintiffs
“sat on their hands” and “stood idly by.”4 Plaintiffs could have advised the Court that one party
purportedly opted-in only as to the claims against the nonsignatory Defendants but did not.
Instead, Plaintiffs argued about what “could”5 happen, failing to advise the Court that it did
happen for at least one party. Plaintiffs’ argument that they put the Court on “notice” by their
filing of the consent, but the Court overlooked it, is not well taken. This would have required the
Court to search the record and update Plaintiffs’ argument – tasks which belonged to Plaintiffs.
Cordova v. Aragon, 569 F.3d 1183, 1191 (10th Cir. 2009) (“It is not our role to sift through the
record to find evidence not cited by the parties to support arguments they have not made.”).
Accordingly, on this record, Plaintiffs’ Motion is denied. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000) (motion for reconsideration is not appropriate vehicle to
4
5

ECF No. 237, p. 5.
ECF No. 210, p. 10.
3

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“advance arguments that could have been raised in prior briefing”); see also Matasantos Comm.
Corp. v. Applebee’s Int’l, Inc., 245 F.3d 1203, 1209 n.2 (10th Cir. 2001) (“motion for
reconsideration is not…an opportunity for the losing party to raise new arguments that could
have been presented originally”). But Defendants’ second argument also merits discussion and
further supports the denial of Plaintiffs’ request.
The Limited Opt-In. Defendants assert that by her consent Ms. Case opted into the entire
action as a whole and not just to those Defendants she chose, i.e., the nonsignatory Defendants.
Defendants argue that if Ms. Case wishes to customize which Defendants she wishes to sue she
can file her own lawsuit. Plaintiffs respond the cases cited by Defendants are inapposite and what
a person opts into is to be interpreted by her consent. In other words, there is no barrier to
picking and choosing.
Plaintiffs may argue they may do so, but they fail to convince the Court they can do so.
Plaintiffs provide no cases which support their position. Instead, Plaintiffs attempt to distinguish
Prickett v. DeKalb Cty., 349 F.3d 1294 (11th Cir. 2003), cited by Defendants, by relying on the
subsequent decision of Albritton v. Cagle’s, Inc., 508 F.3d 1012 (11th Cir. 2007). Neither one of
these cases guides the Court in the direction in which Plaintiffs would have it go.
In Albritton the issue was whether a consent to opt-in in one specifically identified FLSA
case carried over into two other FLSA lawsuits filed three years later, albeit against the same
defendants. After examining the consents, the Eleventh Circuit found the language of the forms
limited the consent to joining the original lawsuit and not the new actions. In Prickett, the issue
was whether the opt-in plaintiffs had joined in only the two FLSA claims which were raised in
the complaint at the time they opted-in or whether their consent covered a third FLSA claim that

4

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was later added in an amendment. The Eleventh Circuit found the consent applied to the
additional claim relying on two rationales. First, because the “plain language” of 29 U.S.C.
§ 216(b) “indicates that plaintiffs do not opt-in or consent to join an action as to specific claims,
but as to the action as a whole.” Prickett, 349 F.3d at 1297. Second, “[m]oreover,” the language
of the consent forms the opt-in plaintiffs signed indicated “they consented to have the named
plaintiffs adjudicate all of their claims for overtime compensation under [the] FLSA.” Id.
Albritton addressed Prickett’s second rationale, not its first.6
The Court’s independent research revealed no controlling case law on the issue, but it is
persuaded by the plain language in Section 216(b). Specifically, Section 216(b) provides that
“[a]n action to recover the liability [under the FLSA] may be maintained against any employer”
by one or more employees. And, by consenting in writing (opting-in) an employee may become
a party plaintiff “to any such action.” The phrase “any such action” refers to an action under the
FLSA. Thus, when an employee opts-in, he or she opts-into the entire FLSA action.
In this case, the amended complaint raises six claims, only one of which is brought under
the FLSA: the First Claim which is directed against all Defendants.7 Ms. Case’s “limited”
consent purports to opt-in to the FLSA claim8 but only as against the nonsignatory Defendants.
In other words, to only part of the claim, i.e., action. This position is unsupported by the plain
language of Section 216(b). Accordingly, Ms. Case may not do so.9
Moreover, even assuming the FLSA allows Ms. Case (and Ms. Saxon) to opt-in to only a
part of the FLSA claim, any alleged prejudice is of their own making. Ms. Case’s consent was
6

Albritton did not need to address the first rationale.
The other claims are based on various state statutes or on common law.
8
The consents speak of FLSA “claims” but there is only one FLSA claim.
9
The same holds true as to Ms. Saxon.
7

5

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filed when the competing motions to stay was pending – she understood a stay of the action was
requested as to the nonsignatory Defendants but nonetheless joined the action. Further, Plaintiffs
represent10 that Ms. Case could refile a new action, thus avoiding any claimed prejudice. As for
Ms. Saxon (or any other limited consents which Plaintiffs may now file) she consented to join
after the Court issued its Order. Thus, she elected to join an action which had already been
administratively closed. Assuming such consent is valid11 – she cannot now be heard to
complain.
Third-Party Beneficiary. As a final argument, Defendants contend the nonsignatory
Defendants are third-party beneficiaries of Ms. Case’s arbitration agreement. Thus, Defendants
assert Ms. Case has only arbitrable claims. In light of the rulings above the Court finds it need
not reach this argument.
IV.

CONCLUSION
Based on the forgoing, it is ORDERED that the “Motion for Partial Reconsideration of

March 30, 2020 Order [Doc. 234]” (ECF No. 235) is DENIED.
DATED this 2nd day of June, 2020.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

10

The Court makes no findings as to what Ms. Case can or cannot do.
The Court renders no opinion as to the effect or validity of the limited consent, e.g., whether it effectively
becomes a consent as to the entire FLSA claim. The Court decides only that an employee may not consent to part of
an FLSA claim.

11

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