UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ PAT SULLIVAN; JAMES WORSHAM; STARR DAVIS, Plaintiffs - Appellants,

v. DAVITA HEALTHCARE PARTNERS, INC.; TOTAL RENAL CARE, INC., Defendants - Appellees.

––––––––––––––––––– –––––––––––––––– FERNANDO FUSTERO; IDA DANDRIDGE, Plaintiffs - Appellants,

v. DAVITA HEALTHCARE PARTNERS, INC.; TOTAL RENAL CARE, INC., Defendants - Appellees.

––––––––––––––––––– –––––––––––––––– LACEY WILSON, Plaintiff - Appellant,

v. DAVITA HEALTHCARE PARTNERS, INC.; TOTAL RENAL CARE, INC., Defendants - Appellees. No. 18-1399 (D.C. No. 1:18-CV -01589-MSK-NYW) (D. Colo.)

No. 18-1400 (D.C. No. 1:18-CV -01593-MSK-NYW) (D. Colo.)

No. 18-1401 (D.C. No. 1:18-CV -01591-MSK-NYW) (D. Colo.) FILED United States Court of Appeals Tenth Circuit 

### July 2, 2019
Elisabeth A. Shumaker Clerk of Court2 ––––––––––––––––––– –––––––––––––––– DONNA WEATHERBY; LIAN TANG; KAREN JUDD, Plaintiffs - Appellants,

v. DAVITA HEALTHCARE PARTNERS, INC.; TOTAL RENAL CARE, INC., Defendants - Appellees. No. 18-1403 (D.C. No. 1:18-CV -01594-MSK-NYW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , BACHARACH , and McHUGH , Circuit Judges.

________________ _________________ In 2017, multiple groups of plain tiffs filed suit against DaVit a Healthcare Partners, Inc. and Total Renal Ca re, Inc. (collectively, DaVita ) for violations of the Fair Labor Standards Act (F LSA), 29 U.S.C. §§ 201-219

. The district court dismissed the cases for failure t o state a claim. In 2018, som e of the plaintiffs from the 2017 cases filed new FLSA sui ts against DaVita. In these c onsolidated appeals, those plaintiffs appeal the distr ict court’s dismissal of their 2018 cases as barred by

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1.3 the doctrine of res judicata. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Background In November 2017, numerous DaVita e mployees, all represented by the same counsel, filed a total of seven l awsuits against DaVita allegin g that DaVita failed to pay overtime in violation of t he FLSA, 29 U.S.C. § 207(a). 1 Two of the suits were filed by single plaintiffs; 2 the other five each invol ved multiple plaintiffs. 3 DaVita moved to dismiss all seven com plaints under Fed. R. Civ. P. 12( b)(6) for failure to state a claim. The plaintiffs a mended their complaints within 21 days of service, rendering the motions to dismiss moot. DaVita then moved to di smiss the amended complaints, again for failure to state a claim. The plaintiffs responded to the motions but did not seek leave to amend th eir complaints a second time.

1 Section 207(a)(1) provides, in re levant part, “[N]o employer s hall employ any of his employees . . . for a workweek longer than forty hou rs unless such employee receives compensation fo r his employment in excess of the hours above specified at a rate not less th an one and one-half times the re gular rate at which he is employed.” 2 The single-plaintiff cases were Harris v. DaVita Health care Partners, Inc., et al. , No. 17-CV-02741-MSK and Cope v. DaVita Healthcare Partners, Inc., et al. , No. 17-CV-02744-MSK. 3 The multi-plaintiff cases were Turner, et al. v. DaVita Healthcare Partners, Inc., et al. , No. 17-CV-02742-MSK ( Turner ); Sullivan, et al. v. DaVita Healthcare Partners, Inc., et al. , No. 17-CV-02745-MSK-NYW ( Sullivan ); Wilson, et al. v. DaVita Healthcare Pa rtners, Inc., et al. , No. 17-CV-02747-MSK ( Wilson ); Clark, et al. v. DaVita Healthca re Partners, Inc., et al. , No. 17-CV-02748-MSK-NYW ( Clark ); and Coleman, et al. v. DaVita Heal thcare Partners, Inc., et al. , No. 17-CV-02749-MSK-NYW ( Coleman ).4 On June 22, 2018, without waiting for DaVita to reply, the dist rict court granted DaVita’s motions as to t he five cases involving multipl e plaintiffs. 4 The court concluded that the general ized allegations in the multi-p laintiff cases were insufficient to state a claim b ecause they did not allege facts showing that any plaintiff individually worked more than forty hours in a workwe ek for which required overtime was not paid. The court expressly declined to sua spo nte grant leave to amend, noting that the plaintiff s had not requested leave to am end their complaints a second time and observing, DaVita previously moved on Rule 12(b)(6) grounds to dismiss the original Complaints in each of these cases, rais ing essentially the same arguments herein, and the Plain tiffs responded to those motions with the instant Amended Complaints. The Court thus assumes that the in stant pleadings reflect the Plaintiffs ’ best efforts to plead their F LSA clams. Aplt. App. Vol. 2 at 504 n.3. The plaintiffs did not file a mo tion to reconsider with the district court, or a direct appeal with this court. Three days later, on June 25, 2018, the plaintiffs refiled thei r complaints against DaVita as serting FLSA violations supported by more specifi c factual allegations. 5

4 The district court issued a si ngle order in all seven cases. The court denied the motion to dismiss as to the single-plaintiff cases. The di sposition of the single-plaintiff cases is not a t issue in these appeals. 5 The 2018 cases were Sullivan, et al. v. DaVita Healthcare Partners, Inc., et al. , No. 18-CV-01589-MSK-NYW ( Sullivan ); Wilson v. DaVita Healthcare Partners, Inc., et al. , No. 18-CV-01591-MSK-NYW ( Wilson ); Fustero, et al. v. DaVita Healthcare Pa rtners, Inc., et al. , No. 18-CV-1593-MSK-NYW ( Fustero ); and Weatherby, et al. v. DaVita He althcare Partners, Inc., et al. , No. 18-CV-1594-MSKNYW ( Weatherby ). Turner was not refiled. The named plaintiffs in Clark and Coleman changed, and they became Fustero and Weatherby , respectively.5 DaVita moved to dismiss the 2018 cases arguing that the plaint iffs’ FLSA claims were barred by the doctrin e of res judicata. The distri ct court agreed and dismissed all four cases. The plaintiffs timely appealed.
Discussion “The doctrine of res judicata, o r claim preclus ion, will preven t a party from relitigating a legal claim that was or could have been the subj ect of a previously issued final judgment.” MACTEC, Inc. v. Gorelick , 427 F.3d 821, 831 (10th Cir. 2005). Whether claim preclusion applies is a question of law w hich we review de novo. Id. To determine the preclusive effe ct of a prior judgment of a f ederal court, we look to federal law. Yapp v. Excel Corp. , 186 F.3d 1222, 1226 (10th Cir. 1999). In this circuit, claim pr eclusion requires that three e lements exist: “(1) a final judgment on the merits in an ear lier action; (2) identity of th e parties in the two suits; and (3) identity of the cause of action in both suits.” MACTEC , 427 F.3d at 831. “If these requirements are met, res judicata is appropriate unl ess the party seeking to avoid preclusion did not have a ‘full and fair opportunity’ to litigate the claim in the prior suit.” Id. (quoting Yapp , 186 F.3d at 1226 n.4). On appeal, the plaintiffs do not c ontest the district court’s d etermination that the three elements of claim preclusion are met, and thus they h ave waived any challenge to that portion of the district court’s decision. See Bronson v. Swensen , 500 F.3d 1099, 1104 ( 10th Cir. 2007) (“[W] e routinely have decl ined to consider arguments that are not raised, o r are inadequately presented, i n an appellant’s opening brief.”). Instead, the p laintiffs focus on the require ment that the party6 resisting preclusion must have had a full and fair opportunity to litigate th e claim in the prior suit. First, they argue this requirement is a fourth element of claim preclusion, which DaVita, as the party asser ting the affirmative defense, h ad the burden to plead and prove. Because DaVita did not argue this element in its mo tion to dismiss, the plaintiffs contend it did not mee t its burden. We have previou sly acknowledged that “[i]n a number of our c ases, we have characterized the full and fair opportunity to litigate as a fourth require ment of res judicata.” MACTEC , 427 F.3d at 831 n.6 (internal quotation ma rks omitted). But the n we explained that “the absence of a full and fair opportunity to litigate is more appropriately treated as an exception to the application of claim preclusion when the three referenced requi rements are [otherwise] met.” Id. (citing Yapp , 186 F.3d at 1226 n.4). W e recently reiterated our view that the absence of a ful l and fair opportunity to litigat e is an exception to the application of claim preclusion. See Lenox MacLaren Surgica l Corp. v. Medtronic,
Inc. , 847 F.3d 1221, 1239 ( 10th Cir. 2017) (citing MACTEC , 427 F.3d at 831 & n.6). Accordingly, we reject the pla intiffs’ contention that DaVita f ailed to meet its burden. Second, the plaintiffs argue the d istrict court erred in sua sp onte deciding on the pleadings and without adequate briefing that they had a ful l and fair opportunity to litigate their cl aims because such an o pportunity was not ev ident from the face of their 2018 complaints or the pro cedural history of the 2017 cas es. This argument is belied by the record. The distr ict court did not act sua spont e; it ruled on DaVita’s7 motion asserting claim preclusion as a defense. As explained a bove, DaVita was not required to affirmatively establi sh in its motion that the plai ntiffs had a full and fair opportunity to litigate, and the pl aintiffs were free to argue that they did not have such an opportunity in response to the motion to dismiss. Inde ed, the district court considered whether the plainti ffs had a full and fair opportuni ty to litigate their FLSA claims because the plaintiffs ar gued that such an opportunity i s a requirement of claim preclusion and the 2017 cas es were not fully and fairly l itigated. As the plaintiffs acknowledge, the distr ict court could take judicial notice of its own decisions and records from the 2017 cases. See Grynberg v. Ko ch Gateway Pipeline
Co. , 390 F.3d 1276, 1278 n.1 (10th Cir. 2004). Contrary to the pl aintiffs’ last argument, the decisions and reco rds from the 2017 cases reveal that the plaintiffs did have a full and fa ir opportunity to litigate their claims. “The requirement that the party against whom the prior judgment is asserted had a full and fair opportunity to be heard centers on the fund amental fairness of preventing [that] party from reli tigating an issue he has lost in a prior proceeding.” Sil-Flo, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1521 (10th Cir. 1990). The primary concern is that the prior judgmen t was procured in a manner tha t satisfies due
process. Lenox , 847 F.3d at 1243. “Often, the inquiry will focus on whether there were significant procedural limit ations in the prior proceeding , whether the party had the incentive to litigate fully th e issue, or whet her effective litigation was limited by the nature or relations hip of the parties.” Sil-Flo , 917 F.2d at 1521. Disagreement8 with the decision in the prior p roceeding does not mean a party was denied a full and fair opportunity to litigate. Id. The plaintiffs contend that, in d etermining they had failed to state a claim, the district court fabricated facts, f ailed to accept all well-plea ded allegations in their complaints as true, failed to view those allegations in the lig ht most favorable to the plaintiffs, and conducted an incom plete analysis using select f acts from only one of the five cases. But the se arguments all go to the merits of th e district court’s decision, which the plain tiffs did not appeal. See Federated Dep’t Stores, Inc. v.
Moitie , 452 U.S. 394, 398 (1981) (“[A]n erroneous conclusion reached by the court in the first suit does not depr ive the defendants in the second action of their right to rely upon the plea of res judicata . A judgment merely voida ble because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause of action.” (alterations and intern al quotation marks omitted)). The plaintiffs point to only one potential procedural limitatio n in the 2017 cases; namely, the district court restricted their ability to a mend their complaints when it assumed their first ame nded complaints reflected their “best efforts to plead their FLSA claims.” Aplt. Ope ning Br. at 33 (italics omitted). But the district court did not restrict the plaintiffs ’ ability to amend. To the cont rary, it declined to grant leave to amend sua sp onte while explicitly acknowledging that t he plaintiffs themselves could have sought lea ve to amend but had not. The p laintiffs’ contention that a motion to reconsider woul d have been futile under these circumstances is pure9 speculation. Moreover, the plain tiffs have not asserted any pr ocedural limitation on their ability to file a direct appeal from th e dismissal of the 2017 cases. See Moitie , 452 U.S. at 398 (noting that an erroneous judgment “can be corr ected only by a direct review and not by bringing anothe r action upon the same cause o f action” (alterations and internal quotation marks omitted)).
Conclusion For the foregoing reasons, the j udgment of the district court is affirmed.

Entered for the Court
Carolyn B. McHugh Circuit Judge