Green v. Fishbone Safety Solutions, Ltd.

Decision Date19 March 2018
Docket NumberCivil Action No. 16–cv–01594–PAB–KMT
Citation303 F.Supp.3d 1086
Parties Michael GREEN, on behalf of himself and all similarly situated persons, Plaintiff, v. FISHBONE SAFETY SOLUTIONS, LTD., a Texas limited partnership, William S. Cain, BSC Interest, LLC, a Texas limited liability company, and Noble Energy, Inc., a Delaware corporation, Defendants.
CourtU.S. District Court — District of Colorado

Daniel S. Brome, Matthew Carl Helland, Nichols Kaster, PLLP—San Francisco, San Francisco, CA, David Hollis Seligman, Towards Justice—Denver, Denver, CO, Brian David Gonzales, Brian D. Gonzales, PLLC, Fort Collins, CO, for Plaintiff.

Andrew Wilson Reed, Gregory Scott Fiddler, Fiddler & Associates, P.C., David Bryce Jordan, Littler Mendelson, PC—Houston, Houston, TX, Christopher Michalski, Littler Mendelson, P.C.—Pittsburgh, Pittsburgh, PA, Michelle Lynn Gomez, Littler Mendelson, PC—Denver, Denver, CO, for Defendants.

PHILIP A. BRIMMER, United States District Judge


This matter is before the Court on Plaintiff's Motion for Approval of Hoffmann–La Roche Notice [Docket No. 62], Defendant Fishbone Safety Solutions, Ltd.'s Motion to Compel Arbitration as to Charles Young [Docket No. 73], Defendants William S. Cain and BSC Interest, LLC's Conditional Motion to Compel Arbitration as to Michael Green and Charles Young [Docket No. 83], and plaintiff's Motion to Reconsider, or to Certify to the Colorado Supreme Court, or to Certify for Interlocutory Appeal [Docket No. 87]. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.


This case arises out of plaintiff Michael Green's employment as a safety advisor for defendant Fishbone Safety Solutions, Ltd., a company that "provides safety inspection services to oil various states." Docket No. 6 at 3, ¶ 10. Plaintiff1 alleges that defendants Fishbone Safety Solutions, Ltd. ("Fishbone"), William S. Cain ("Cain"), BSC Interest, LLC ("BSC"), and Noble Energy, Inc. ("Noble") violated the Fair Labor Standards Act ("FLSA") and state labor laws by failing to pay him and other similarly situated individuals overtime. Id. at 7–10. Plaintiff seeks to hold defendants jointly and severally liable on the basis that (1) Cain and BCS "own and operate Fishbone Safety Solutions" and (2) Noble "contracted with Fishbone to provide Safety Advisor services." Id. at 2–3, ¶ 7.

Plaintiff filed his collective and class action complaint on June 22, 2016, Docket No. 1, and his first amended complaint on August 5, 2016. Docket No. 6. On December 9, 2016, Fishbone and Noble moved to compel arbitration. Docket No. 50.2 On January 9, 2017, Charles Young filed a notice of consent to join the action. Docket No. 58. Plaintiff subsequently moved for conditional collective action certification and Hoffman–La Roche notice to a class of "all current and former workers who performed safety advisor services for Defendant at any time from June 22, 2013 to present." Docket No. 62 at 5. On July 18, 2017, Fishbone filed a motion to compel arbitration as to Young. Docket No. 73.

The Court granted Fishbone's motion to compel as to Green on September 7, 2017. Docket No. 79. On September 11, 2017, BSC and Cain filed a motion to compel arbitration as to Green and Young. Docket No. 83. BSC was dismissed from the lawsuit on September 12, 2017, Docket No. 84, but the motion to compel, as asserted by Cain, remains pending. On October 15, 2017, plaintiff filed a motion requesting that the Court reconsider its September 7, 2017 order granting Fishbone and Noble's motion to compel. Docket No. 87. All of the pending motions are fully briefed and ripe for disposition.


The Court first considers plaintiff's motion for reconsideration and then turns to defendants' motions to compel and plaintiff's motion for conditional certification.

A. Motion for Reconsideration

The Federal Rules of Civil Procedure do not specifically provide for motions for reconsideration. See Hatfield v. Bd. of County Comm'rs for Converse County , 52 F.3d 858, 861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court's plenary power to revisit and amend interlocutory orders as justice requires. See Paramount Pictures Corp. v. Thompson Theatres, Inc. , 621 F.2d 1088, 1090 (10th Cir. 1980) (citing Fed. R. Civ. P. 54(b) ); see also Houston Fearless Corp. , 313 F.2d at 92. However, in order to avoid the inefficiency which would attend the repeated re-adjudication of interlocutory orders, judges in this district have imposed limits on their broad discretion to revisit interlocutory orders. See, e.g. , Montano v. Chao , No. 07–cv–00735–EWN–KMT, 2008 WL 4427087, at *5–6 (D. Colo. Sept. 28, 2008) (applying Rule 60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co. v. McCrerey & Roberts Constr. Co. , No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at *1–2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the duty-to-defend order). Regardless of the analysis applied, the basic assessment tends to be the same: courts consider whether new evidence or legal authority has emerged or whether the prior ruling was clearly in error. Motions to reconsider are generally an inappropriate vehicle to advance "new arguments, or supporting facts which were available at the time of the original motion." Servants of the Paraclete v. Does , 204 F.3d 1005, 1012 (10th Cir. 2000).

Plaintiff seeks reconsideration of the Court's order compelling arbitration on two grounds: (1) the Court clearly erred in finding that the unenforceable terms in the parties' arbitration agreement were severable from the agreement; and (2) the Court clearly erred in holding that plaintiff was equitably estopped from litigating his claims against Noble in court. Docket No. 87 at 3–8. As an alternative to reconsideration, plaintiff requests that the Court certify certain questions of law to the Colorado Supreme Court or allow plaintiff to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Id. at 8–12.

1. Severability

In the earlier order, this Court held that the provisions in plaintiff's arbitration agreement requiring him to (1) make a request for arbitration within one year of the challenged employment incident and (2) bear the costs of his legal representation were unenforceable. Docket No. 79 at 7, 9. Nevertheless, the Court concluded that the provisions could be severed from the arbitration agreement because they "[did] not affect the primary purpose or object of the agreement, which [was] to submit employment disputes to arbitration." Id. at 11. Plaintiff challenges this determination on two grounds. First, plaintiff argues that the Court's conclusion flows from an "incorrect premise" that it was plaintiff's burden to prove that the unenforceable terms were not severable. Docket No. 87 at 2–3. Second, plaintiff contends that the Court's ultimate holding on severability constituted clear error. Id. at 3–4.

In support of his first argument, plaintiff asserts that the Court improperly imported the Federal Arbitration Act's policy favoring arbitration into its analysis of a state law issue by making it plaintiff's burden to show that the parties did not intend to allow severance of the unenforceable provisions. Id. at 2. However, plaintiff does not cite any Colorado cases addressing which party bears the burden of demonstrating severability when the unenforceable terms are contained within an arbitration agreement governed by the FAA. See CapitalValue Advisors, LLC v. K2D, Inc. , 321 P.3d 602, 605–608 (Colo. App. 2013) (applying severability analysis to performance terms of debt financing agreement); John v. United Advert., Inc. , 165 Colo. 193, 439 P.2d 53, 54–56 (1968) (applying severability analysis to performance terms in contract governing construction, installation, and maintenance of outdoor display signs); see also Fuller v. Pep Boys—Manny, Moe & Jack of Delaware, Inc. , 88 F.Supp.2d 1158, 1162 (D. Colo. 2000) (noting, in analysis of whether unenforceable term was severable from arbitration agreement, that "[f]ederal case law and statutory law clearly creates a presumption in favor of arbitrability" and thus the court "must resolve all doubts in favor of arbitration").

Even if plaintiff is correct that he did not bear the burden of demonstrating the parties' intent not to allow severance, he has failed to demonstrate that the Court clearly erred in determining that the unenforceable provisions could be severed from the parties' arbitration agreement. It is true, as plaintiff points out, that a number of courts in this circuit have relied on the absence of a savings clause to hold that unenforceable terms were not severable from an arbitration agreement.

See, e.g. , Nesbitt v. FCNH, Inc. , 74 F.Supp.3d 1366, 1375 (D. Colo. 2014), aff'd , 811 F.3d 371 (10th Cir. 2016) ; Perez v. Hosp. Ventures–Denver, LLC , 245 F.Supp.2d 1172, 1174 (D. Colo. 2003). As stated in this Court's prior order, however, the courts in those cases did not rely on Colorado law or analyze the parties' intent regarding severability.3 Under Colorado law, "[t]he absence of a severability clause does not conclusively establish that the parties did not intend that the Agreement be severable." CapitalValue Advisors, LLC , 321 P.3d at 607. Plaintiff acknowledges that "there may be a narrow category of cases where a contract is divisible even in the absence of a severability provision." Docket No. 87 at 4. However, he argues that such cases involve other indicia of the parties' intent to allow severance, such as the existence of "multiple standalone promises each with separate consideration" in the contract at issue. Id. (citing CapitalValue Advisors , 321 P.3d at 607–08 ). But plaintiff cites no authority for the proposition that the absence of a severability provision is determinative in cases where the contract does not contain multiple standalone promises. Moreover, even if plaintiff is correct that the unenforceable...

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