DAVITA INC.'S ANSWER (NO CV6-504) (NO. CV05-

2023) - 1

[38585-0002/SL061010.200] 

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Perkins Coie LLP

1201 Third Avenue, Suite 4800 

Seattle, Washington 98101-3099 

Phone: (206) 359-8000 

Fax: (206) 359-9000 

THE HONORABLE JAMES L. ROBART 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

LENNY COULOMBE, 

 Plaintiff, 

 v. 

TOTAL RENAL CARE HOLDINGS, INC., 

DAVITA, INC., 

 Defendants. 

NO. CV6-504 

ANSWER 

I. ANSWERS 

Defendant DaVita Inc. ("DaVita") f/k/a Total Renal Care Holdings, Inc., in answer 

to Plaintiff's Complaint, admits, denies and alleges as follows: 

1.1 Answering paragraph 1.1 of Plaintiff's Complaint, Defendant admits that 

Plaintiff is a resident of the State of Washington and that he was employed by DaVita 

until November 28, 2005. Except as so admitted, Defendant denies the allegations 

contained in the paragraph. 

1.2. Answering paragraph 1.2 of Plaintiff's Complaint, Defendant admits that 

DaVita is a foreign corporation doing business in the state of Washington, including King 

County. Except as so admitted, Defendant denies the remaining allegations contained in 

the paragraph. 
DAVITA INC.'S ANSWER (NO CV6-504) (NO. CV05-

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[38585-0002/SL061010.200] 

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Perkins Coie LLP

1201 Third Avenue, Suite 4800 

Seattle, Washington 98101-3099 

Phone: (206) 359-8000 

Fax: (206) 359-9000 

2.1 Answering paragraph 2.1 of Plaintiff's Complaint, Defendant admits that 

Plaintiff was hired by Total Renal Care Holdings, Inc. n/k/a Davita Inc. in August 1996. 

Except as so admitted, Defendant denies the allegations contained in the paragraph. 

2.2 Answering paragraph 2.2 of Plaintiff's Complaint, Defendant admits the 

same. 

2.3 Answering paragraph 2.3 of Plaintiff's Complaint, Defendant admits that 

Plaintiff's first position with DaVita, then known as Total Renal Care Holdings, Inc. was 

in the accounts receivable department. Except as so admitted, Defendant denies the 

allegations contained in the paragraph. 

2.4 Answering paragraph 2.4 of Plaintiff's Complaint, Defendant admits that 

Plaintiff was paid a salary and provided with employee benefits. Defendant further 

admits that Plaintiff did receive discretionary bonuses at certain times during his 

employment. Defendant further admits that Plaintiff was granted stock options during his 

employment. Except as so admitted, Defendant denies the allegations contained in the 

paragraph. 

2.5 Answering paragraph 2.5 of Plaintiff's Complaint, Defendant admits that 

Plaintiff was granted a stock option in April 1997 pursuant to a written stock option 

agreement and stock option plan. Defendant further admits that the original vesting 

schedule for the option shares was 25% per year on the anniversary date of the 

agreement. Defendant further admits that pursuant to the terms of the option agreement, 

no shares could vest after termination of Plaintiff's employment. Defendant further 

admits that under the terms of the option agreement Plaintiff was to have three months 

from his date of termination to exercise any then vested option shares. Except as so 

admitted, Defendant denies the allegations contained in the paragraph. 

2.6 Answering paragraph 2.6 of Plaintiff's Complaint, Defendant admits that 

the expiration date for the option shares granted under the April 1997 option agreement 
DAVITA INC.'S ANSWER (NO CV6-504) (NO. CV05-

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[38585-0002/SL061010.200] 

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Perkins Coie LLP

1201 Third Avenue, Suite 4800 

Seattle, Washington 98101-3099 

Phone: (206) 359-8000 

Fax: (206) 359-9000 

was April 2007. Except as so admitted here, and in paragraph 2.5, above, Defendant 

denies the allegations contained in the paragraph. 

2.7 Answering paragraph 2.7 of Plaintiff's Complaint, Defendant admits that 

Plaintiff was granted a stock option in 1998 for 30,000 shares, pursuant to a written stock 

option agreement and stock option plan. Defendant further admits that the original 

vesting schedule for those option shares was 25% per year on the anniversary date of the 

agreement. Defendant further admits that under the terms of the option agreement, no 

shares could vest after the termination of Plaintiff's employment. Defendant further 

admits that under the stock option agreement Plaintiff was to have three months from his 

date of termination to exercise any then vested option shares. Except as so admitted, 

Defendant denies the remaining allegations contained in the paragraph. 

2.8 Answering paragraph 2.8 of Plaintiff's Complaint, Defendant admits that in 

November 2000, Plaintiff, and other DaVita executives and employees, were asked to 

voluntarily relinquish some of their option shares, both vested and unvested. Defendant 

further admits that at that time Plaintiff was vested in three-quarters of his 1997 option 

shares, and one-half of his 1998 option shares. Except as so admitted, Defendant denies 

the remaining allegations contained in the paragraph. 

2.9 Answering paragraph 2.9 of Plaintiff's Complaint, Defendant admits that 

Plaintiff was an "at-will" employee at all times during his employment with DaVita. 

Except as so admitted, Defendant denies the allegations in this paragraph. 

2.10 Answering paragraph 2.10 of Plaintiff's Complaint, Defendant admits the 

same. 

2.11 Answering paragraph 2.11 of Plaintiff's Complaint, Defendant admits the 

allegations except that Defendant denies that Plaintiff was advised on or about November 

30, 2005. 
DAVITA INC.'S ANSWER (NO CV6-504) (NO. CV05-

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Perkins Coie LLP

1201 Third Avenue, Suite 4800 

Seattle, Washington 98101-3099 

Phone: (206) 359-8000 

Fax: (206) 359-9000 

2.12 Answering paragraph 2.12 of Plaintiff's Complaint, Defendant admits that 

in December 2005, Plaintiff attempted to exercise the option shares he had previously 

relinquished. Except as so admitted, Defendant denies the allegations in the paragraph. 

2.13 Answering paragraph 2.13 of Plaintiff's Complaint, Defendant admits that 

in January 2005, DaVita did not permit Plaintiff to exercise the option shares he had 

previously relinquished. Except as so admitted, Defendant denies the allegations in the 

paragraph. 

2.14 Answering paragraph 2.14 of Plaintiff's Complaint, Defendant admits that it 

did not permit Plaintiff to exercise certain stock options because he had relinquished 

those options. Except as so admitted, Defendant denies the allegations in the paragraph. 

2.15 Answering paragraph 2.15 of Plaintiff's Complaint, Defendant admits the 

same. 

2.16 Answering paragraph 2.16 of Plaintiff's Complaint, Defendant admits that 

Plaintiff was promoted in 1999. Except as so admitted, Defendant denies the allegations 

in the paragraph. 

2.17 Answering paragraph 2.17 of Plaintiff's Complaint, Defendant admits that 

from approximately May 1999 through June 2002, Plaintiff reported to Jonathan Wallin. 

Except as so admitted, Defendant denies the allegations in the paragraph. 

2.18 Answering paragraph 2.18 of Plaintiff's Complaint, Defendant admits that 

during the period 1999 through 2002, Plaintiff received certain discretionary bonuses. 

Except as so admitted, Defendant denies the allegations in the paragraph. 

2.19 Answering paragraph 2.19 of Plaintiff's Complaint, Defendant admits that 

during the period 1999 through 2002, Plaintiff received certain salary increases. Except 

as so admitted, Defendant denies the allegations in the paragraph. 
DAVITA INC.'S ANSWER (NO CV6-504) (NO. CV05-

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Perkins Coie LLP

1201 Third Avenue, Suite 4800 

Seattle, Washington 98101-3099 

Phone: (206) 359-8000 

Fax: (206) 359-9000 

2.20 Answering paragraph 2.20 of Plaintiff's Complaint, Defendant admits that 

in November 2002, Plaintiff began reporting to Lori Pelliccioni. Except as so admitted, 

Defendant denies the allegations of the paragraph. 

2.21 Answering paragraph 2.21 of Plaintiff's Complaint, Defendant, based on 

current information and belief, lacks sufficient information to respond to the allegations 

contained in the paragraph, and therefore denies the same. 

2.22 Answering paragraph 2.22 of Plaintiff's Complaint, Defendant, based on 

current information and belief, lacks sufficient information to respond to the allegations 

contained in the paragraph, and therefore denies the same. 

2.23 Answering paragraph 2.23 of Plaintiff's Complaint, Defendant denies the 

same. 

2.24 Answering paragraph 2.24 of Plaintiff's Complaint, Defendant admits that 

Plaintiff received a discretionary bonuses for certain years prior to 2004 but denies that 

he received a discretionary bonus for each of the seven years prior to 2004. 

2.25 Answering paragraph 2.25 of Plaintiff's Complaint, Defendant admits that 

the only performance review of Mr. Coulombe conducted by Lori Pelliccioni reflected 

that Plaintiff's performance met or exceeded expectations in the identified categories. 

Except as so admitted, Defendant denies the allegations in the paragraph. 

2.26 Answering paragraph 2.26 of Plaintiff's Complaint, Defendant, based on 

current information and belief, lacks sufficient information to respond to the allegations 

contained in the paragraph, and therefore denies the same. 

2.27 Answering paragraph 2.27 of Plaintiff's Complaint, Defendant denies the 

same. 

3.1 Answering paragraph 3.1 of Plaintiff's Complaint, Defendant denies the 

allegations of the paragraph. 
DAVITA INC.'S ANSWER (NO CV6-504) (NO. CV05-

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Perkins Coie LLP

1201 Third Avenue, Suite 4800 

Seattle, Washington 98101-3099 

Phone: (206) 359-8000 

Fax: (206) 359-9000 

3.2 Answering paragraph 3.2 of Plaintiff's Complaint, Defendant denies the 

allegations of the paragraph. 

3.3 Answering paragraph 3.3 of Plaintiff's Complaint, Defendant denies the 

allegations of the paragraph. 

3.4 Answering paragraph 3.4 of Plaintiff's Complaint, Defendant denies the 

allegations of the paragraph. 

3.5 Answering paragraph 3.5 of Plaintiff's Complaint, Defendant denies the 

allegations of the paragraph. 

3.6 Answering paragraph 3.6 of Plaintiff's Complaint, Defendant denies the 

allegations of the paragraph. 

4.1 Answering paragraph 4.1 of Plaintiff's Complaint, Defendant denies the 

allegations of the paragraph. 

5. Answering Plaintiff's Prayer for Relief (paragraphs 5.1-5.7), Defendant 

denies that plaintiff is entitled to any relief whatsoever. 

II. DEFENSES AND AFFIRMATIVE DEFENSES 

WHEREFORE, Defendant set forth the following affirmative defenses: 

1. Plaintiff fails to state a claim upon which relief may be granted. 

2. Plaintiff's claims are barred, in whole or in part, because he failed to 

mitigate his damages, if any. 

3. Plaintiff's claims are barred, in whole or in part, by the equitable doctrines 

of, waiver, promissory estoppel, and equitable estoppel. 

4. Plaintiff's claims are barred, in whole or in part, by the applicable statute(s) 

of limitation and/or laches. 
DAVITA INC.'S ANSWER (NO CV6-504) (NO. CV05-

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Perkins Coie LLP

1201 Third Avenue, Suite 4800 

Seattle, Washington 98101-3099 

Phone: (206) 359-8000 

Fax: (206) 359-9000 

5. Plaintiff abandoned the stock option agreements through his voluntary 

relinquishment of his rights under those agreements, thereby excusing further 

performance by DaVita. 

6. Plaintiff voluntarily rescinded his rights under the stock option agreements 

through his voluntary relinquishment of those rights, thereby excusing further 

performance by DaVita. 

7. Plaintiff waived his rights under the stock option agreements through his 

voluntary relinquishment of those rights, thereby excusing further performance by 

DaVita. 

8. Plaintiff and Defendant mutually amended and modified the terms of the 

stock option agreements through their conduct. 

10. Plaintiff's claim for recovery of exemplary damages is barred because the 

conduct of Defendant was not reckless, malicious, willful, or grossly negligent and 

because exemplary damages are not otherwise recoverable or warranted in this action. 

III. PRAYER FOR RELIEF 

Having fully answered the Complaint, Defendants pray as follows: 

A. That the Complaint be dismissed with prejudice; 

B. That Defendant be awarded its costs and attorneys' fees; and 

C. That the Court award Defendant such other and further relief as the Court 

deems just and equitable. 
DAVITA INC.'S ANSWER (NO CV6-504) (NO. CV05-

2023) - 8

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Perkins Coie LLP

1201 Third Avenue, Suite 4800 

Seattle, Washington 98101-3099 

Phone: (206) 359-8000 

Fax: (206) 359-9000 

DATED: April 17, 2006. 

s/ James Sanders, WSBA #24565

James Sanders, WSBA #24565 

Brian Flock, WSBA #36919 

Perkins Coie LLP 

1201 Third Avenue, Suite 4800 

Seattle, WA 98101-3099 

Telephone: 206-359-8000 

Fax: 206-359-9000 

E-mail: JSanders@perkinscoie.com 

Attorneys for Defendant 

DaVita Inc. 
DAVITA INC.'S ANSWER (NO CV6-504) (NO. CV05-

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Perkins Coie LLP

1201 Third Avenue, Suite 4800 

Seattle, Washington 98101-3099 

Phone: (206) 359-8000 

Fax: (206) 359-9000 

CERTIFICATE OF SERVICE 

On April 17, 2006, I caused to be served upon counsel of record, at the address stated 

below, via the method of service indicated, a true and correct copy of the following documents: 

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES 

David E. Breskin 

Short Cressman & Burgess, PLLC 

999 Third Avenue, Suite 3000 

Seattle, WA 98104-4088 

Attorneys for plaintiff 

___ Via hand delivery 

___ Via U.S. Mail, 1st Class, 

Postage Prepaid 

___ Via Overnight Delivery 

___ Via Facsimile 

_X Via E-filing 

I certify under penalty of perjury under the laws of the State of Washington that the 

foregoing is true and correct. 

DATED at Seattle, Washington, this 8th day of February, 2005. 

s/ James Sanders 

State Bar Number: 24565 

Attorneys for Defendant 

Perkins Coie LLP 

1201 Third Avenue, Suite 4800 

Seattle, WA 98101-3099 

Telephone: (206) 359-8000 

Fax: (206) 359-9000 

E-mail: JSanders@perkinscoie.com