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 Court
2 

––––––––––––––––––––––––––––––––––– 

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 plaintiffs filed suit against DaVita Healthcare 

Partners, Inc. and Total Renal Care, Inc. (collectively, DaVita) for violations of the 

Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. The district court 

dismissed the cases for failure to state a claim. In 2018, some of the plaintiffs from 

the 2017 cases filed new FLSA suits against DaVita. In these consolidated appeals, 

those plaintiffs appeal the district court’s dismissal of their 2018 cases as barred by 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 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 employees, all represented by the same 

counsel, filed a total of seven lawsuits against DaVita alleging that DaVita failed to 

pay overtime in violation of the FLSA, 29 U.S.C. § 207(a).1

 Two of the suits were 

filed by single plaintiffs;2

 the other five each involved multiple plaintiffs.3 DaVita 

moved to dismiss all seven complaints under Fed. R. Civ. P. 12(b)(6) for failure to 

state a claim. The plaintiffs amended their complaints within 21 days of service, 

rendering the motions to dismiss moot. DaVita then moved to dismiss the amended 

complaints, again for failure to state a claim. The plaintiffs responded to the motions 

but did not seek leave to amend their complaints a second time. 

 1

 Section 207(a)(1) provides, in relevant part, “[N]o employer shall employ 

any of his employees . . . for a workweek longer than forty hours unless such 

employee receives compensation for his employment in excess of the hours above 

specified at a rate not less than one and one-half times the regular rate at which he is 

employed.” 

2

 The single-plaintiff cases were Harris v. DaVita Healthcare 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 Partners, Inc., et al., No. 17-CV-02747-MSK (Wilson); Clark, 

et al. v. DaVita Healthcare Partners, Inc., et al., No. 17-CV-02748-MSK-NYW 

(Clark); and Coleman, et al. v. DaVita Healthcare Partners, Inc., et al., 

No. 17-CV-02749-MSK-NYW (Coleman). 
4 

On June 22, 2018, without waiting for DaVita to reply, the district court 

granted DaVita’s motions as to the five cases involving multiple plaintiffs.4

 The 

court concluded that the generalized allegations in the multi-plaintiff cases were 

insufficient to state a claim because they did not allege facts showing that any 

plaintiff individually worked more than forty hours in a workweek for which required 

overtime was not paid. The court expressly declined to sua sponte grant leave to 

amend, noting that the plaintiffs had not requested leave to amend 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, raising essentially the same 

arguments herein, and the Plaintiffs responded to those motions with the 

instant Amended Complaints. The Court thus assumes that the instant 

pleadings reflect the Plaintiffs’ best efforts to plead their FLSA clams. 

Aplt. App. Vol. 2 at 504 n.3. The plaintiffs did not file a motion to reconsider with 

the district court, or a direct appeal with this court. Three days later, on June 25, 

2018, the plaintiffs refiled their complaints against DaVita asserting FLSA violations 

supported by more specific factual allegations.5

 4

 The district court issued a single order in all seven cases. The court denied 

the motion to dismiss as to the single-plaintiff cases. The disposition of the 

single-plaintiff cases is not at 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 Partners, Inc., et al., No. 18-CV-1593-MSK-NYW (Fustero); and 

Weatherby, et al. v. DaVita Healthcare 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 plaintiffs’ FLSA 

claims were barred by the doctrine of res judicata. The district court agreed and 

dismissed all four cases. The plaintiffs timely appealed. 

Discussion 

“The doctrine of res judicata, or claim preclusion, will prevent a party from 

relitigating a legal claim that was or could have been the subject 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 which we review 

de novo. Id. To determine the preclusive effect of a prior judgment of a federal 

court, we look to federal law. Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 

1999). In this circuit, claim preclusion requires that three elements exist: “(1) a final 

judgment on the merits in an earlier action; (2) identity of the 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 unless 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 contest the district court’s determination that 

the three elements of claim preclusion are met, and thus they have 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 declined to consider 

arguments that are not raised, or are inadequately presented, in an appellant’s 

opening brief.”). Instead, the plaintiffs focus on the requirement that the party 
6 

resisting preclusion must have had a full and fair opportunity to litigate the claim in 

the prior suit. 

First, they argue this requirement is a fourth element of claim preclusion, 

which DaVita, as the party asserting the affirmative defense, had the burden to plead 

and prove. Because DaVita did not argue this element in its motion to dismiss, the 

plaintiffs contend it did not meet its burden. We have previously acknowledged that 

“[i]n a number of our cases, we have characterized the full and fair opportunity to 

litigate as a fourth requirement of res judicata.” MACTEC, 427 F.3d at 831 n.6 

(internal quotation marks omitted). But then 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 requirements are 

[otherwise] met.” Id. (citing Yapp, 186 F.3d at 1226 n.4). We recently reiterated our 

view that the absence of a full and fair opportunity to litigate is an exception to the 

application of claim preclusion. See Lenox MacLaren Surgical 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 plaintiffs’ contention that DaVita failed to meet its 

burden. 

Second, the plaintiffs argue the district court erred in sua sponte deciding on 

the pleadings and without adequate briefing that they had a full and fair opportunity 

to litigate their claims because such an opportunity was not evident from the face of 

their 2018 complaints or the procedural history of the 2017 cases. This argument is 

belied by the record. The district court did not act sua sponte; it ruled on DaVita’s 
7 

motion asserting claim preclusion as a defense. As explained above, DaVita was not 

required to affirmatively establish in its motion that the plaintiffs had a full and fair 

opportunity to litigate, and the plaintiffs were free to argue that they did not have 

such an opportunity in response to the motion to dismiss. Indeed, the district court 

considered whether the plaintiffs had a full and fair opportunity to litigate their FLSA 

claims because the plaintiffs argued that such an opportunity is a requirement of 

claim preclusion and the 2017 cases were not fully and fairly litigated. As the 

plaintiffs acknowledge, the district court could take judicial notice of its own 

decisions and records from the 2017 cases. See Grynberg v. Koch Gateway Pipeline 

Co., 390 F.3d 1276, 1278 n.1 (10th Cir. 2004). Contrary to the plaintiffs’ last 

argument, the decisions and records from the 2017 cases reveal that the plaintiffs did 

have a full and fair 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 fundamental fairness of 

preventing [that] party from relitigating 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 judgment was procured in a manner that satisfies due 

process. Lenox, 847 F.3d at 1243. “Often, the inquiry will focus on whether there 

were significant procedural limitations in the prior proceeding, whether the party had 

the incentive to litigate fully the issue, or whether effective litigation was limited by 

the nature or relationship of the parties.” Sil-Flo, 917 F.2d at 1521. Disagreement 
8 

with the decision in the prior proceeding does not mean a party was denied a full and 

fair opportunity to litigate. Id.

The plaintiffs contend that, in determining they had failed to state a claim, the 

district court fabricated facts, failed to accept all well-pleaded allegations in their 

complaints as true, failed to view those allegations in the light most favorable to the 

plaintiffs, and conducted an incomplete analysis using select facts from only one of 

the five cases. But these arguments all go to the merits of the district court’s 

decision, which the plaintiffs 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 deprive the defendants in the second action of their right to 

rely upon the plea of res judicata. A judgment merely voidable 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 internal quotation marks omitted)). 

The plaintiffs point to only one potential procedural limitation in the 2017 

cases; namely, the district court restricted their ability to amend their complaints 

when it assumed their first amended complaints reflected their “best efforts to plead 

their FLSA claims.” Aplt. Opening Br. at 33 (italics omitted). But the district court 

did not restrict the plaintiffs’ ability to amend. To the contrary, it declined to grant 

leave to amend sua sponte while explicitly acknowledging that the plaintiffs 

themselves could have sought leave to amend but had not. The plaintiffs’ contention 

that a motion to reconsider would have been futile under these circumstances is pure 
9 

speculation. Moreover, the plaintiffs have not asserted any procedural limitation on 

their ability to file a direct appeal from the dismissal of the 2017 cases. See Moitie, 

452 U.S. at 398 (noting that an erroneous judgment “can be corrected only by a direct 

review and not by bringing another action upon the same cause of action” (alterations 

and internal quotation marks omitted)). 

Conclusion 

 For the foregoing reasons, the judgment of the district court is affirmed. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge