United States District Court, N.D. Illinois, Eastern Division
October 1, 2004.
DERRICK B. TARTT, Plaintiff,
NORTHWEST COMMUNITY HOSPITAL[fn1] and NORTHWEST SUBURBAN ANESTHESIOLOGISTS, LTD. Defendants.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
*fn1 Plaintiff Tartt improperly names Defendant Northwest Community
Hospital as Northwest Community Healthcare.
OPINION AND ORDER
Plaintiff Derrick Tartt ("Tartt"), a licensed anesthesiologist,
has filed his second Amended Complaint against Defendants
Northwest Community Hospital ("NCH") and Northwest Suburban
Anesthesiologists ("NSA"). Tartt alleges employment
discrimination in violation of the Uniformed Services Employment
and Reemployment Rights Act of 1994 ("USERRA"), and Title VII of
the Civil Rights Act of 1964 ("Title VII").
Presently before the court are a total of five motions. The
following motions are granted: NCH's Motion to Strike [97-1],
NCH's Motion to Dismiss Amended Complaint [91-1], and NSA's
Motion to Dismiss Amended Complaint [90-1]. The following motions
are denied: NCH's Rule 11 Motion for Sanctions [90-2], and
Tartt's Motion for Leave of the Court to File The Plaintiff's
Answers to the Defendants' Motions to Dismiss Our Amended
Complaint, Instanter [92-1].
In order to properly understand the motions before the court,
the court undertakes a brief analysis of the protracted history
of Tartt's litigation against the Defendants. In July 1993,
Plaintiff Tartt, African American, signed an employment contract
with NSA. Mem. of Law in Supp. of Def. NCH's Mot. to Dismiss Am.
Compl., 1, Ex. A. NSA provided anesthesiology services to NCH.
Tartt worked for NSA, at NCH, as an anesthesiologist until July
1994. At that time, Tartt took a leave of absence in order to
join the United States military.*fn2 Tartt was honorably
discharged from the military, and returned to NSA and NCH in
NSA asserts that while Tartt was in the military, he practiced
anesthesiology at NCH (in violation of his employment agreement),
and misappropriated the proceeds he received for those services.
As a condition of his continued employment with NSA, Tartt signed
a revised employment contract in April 1997. Id., Ex. B. In
that revised contract, Tartt acknowledged that he had violated
provisions of the initial employment contract during his leave of
absence, and agreed to repay the $18,250 he had misappropriated
from NSA during that time. Id., Ex. B, 1-2. Tartt worked for
NSA, at NCH, until NSA terminated Tartt's employment in November
2000. On December 20, 2000, Tartt filed a pro se complaint (case
number 00-C-7960) against NSA and NCH, seeking relief under
USERRA*fn3 and Title VII. On that same date, Tartt filed a
nearly identical pro se complaint (case number 00-C-7959)
against NSA alone. The essence of Tartt's complaints is that,
following Tartt's return from military service, the revised
employment agreement Tartt signed with NSA unlawfully denied
Tartt employment benefits that he would have obtained but for his
race and his military service. For purposes of clarity, the court
will refer to the instant case, case number 00-C-7960, as "7960,"
and Tartt's second case, case number 00-C-7959, as "7959."
The court dismissed 7960 in March 2001, noting that Tartt could
not proceed on his Title VII claim, as he had failed to first
file a discrimination charge with the EEOC, nor could he proceed
on his USERRA claim, as it was "rambling, confusing, not concise,
not short and plain." See Minute Order of Mar. 1, 2001. The
court, however, granted Tartt leave to file an Amended Complaint.
Id. Tartt then filed, pro se, Amended Complaints in both 7959
and 7960. The first Amended Complaint in 7960, filed March 23,
2001, again alleged employment discrimination based on Tartt's
race and military service. This Complaint was thirty-four pages
long, failed to include numbers for all paragraphs, and contained
a rambling nineteen page section styled "Federal Question
Jurisdiction." Both Defendants filed Motions to Dismiss,
asserting that Tartt's claims must fail, as Tartt was never
employed by the NCH, stated no cognizable claim under USERRA, and
failed to file a EEOC complaint. The court denied these motions,
but, sua sponte, noted that cases 7959 and 7960 appeared to be nearly
identical, and issued a rule to show cause as to why one of them
should not be dismissed. Tartt, by now represented by counsel,
failed to respond to the court's rule. The court therefore
dismissed 7960. See Minute Order of May 30, 2002.
Tartt then filed a Motion to Reconsider the court's dismissal
of 7960, which the court denied. On appeal, however, the Seventh
Circuit reversed and remanded. Tartt v. Northwest Comty. Hosp.,
No. 03-1558, 2003 U.S. App. LEXIS 21917 (7th Cir. Oct. 21, 2003).
The court then granted Tartt leave to file a second Amended
Tartt then filed the second Amended Complaint, in case
00-C-7960, on April 23, 2004. In this Complaint, filed against
Defendants NSA and NCH, Tartt once again asserts violations of
USERRA and Title VII. See Tartt's second Amended Complaint of
April 23, 2004. Tartt once again asserts that NSA and NCH
discriminated against him on the basis of his military service
and race, and alleges that this discrimination adversely impacted
his right to retirement benefits, stock ownership, promotions,
increases in salary, and training. Id. at ¶ 27-28. In response,
Defendants assert that these claims are barred by the principle
of res judicata, and that Tartt has failed to state a claim
under which relief can be granted.
B. Procedural Framework
Following Tartt's second Amended Complaint, the parties filed a
total of five motions: 1) on May 27, 2004, Defendant NCH filed a
Motion to Dismiss under Rule 12(b)(6) [91-1]; 2) on May 27, 2004,
Defendant NSA filed a Motion to Dismiss under Rule 12(b)(6)
[90-1]; 3) on May 27, 2004, Defendant NSA filed a Motion for Sanctions under Rule
11 against Tartt and Tartt's counsel [90-2]; 4) on June 10, 2004,
Tartt filed a Motion for Leave of the Court to File the
Plaintiff's Answer to the Defendants' Motions to Dismiss Our
Amended Complaint, Instanter [92-1]; and 5) on August 6, 2004,
NCH filed a Motion to Strike Plaintiff Tartt's Answer to
Defendant Northwest Community Healthcare and Defendant Northwest
Suburban Anesthesiologists Motions to Dismiss Plaintiff Tartt's
Amended Complaint [97-1]. All of these motions are fully briefed
and before the court.
A. Tartt's Motion for Leave of the Court to File the
Plaintiff's Answers to the Defendants' Motions to Dismiss Our
Amended Complaint, Instanter
During a May 13, 2004 status hearing, counsel for Defendants
indicated to the court that they intended to file Motions to
Dismiss. In response, the court then set a briefing schedule for
these motions. Defendants were to file their motions by May 27.
Tartt was directed to file his response by June 10, and
Defendants were to file their reply by June 17. Defendants both
timely filed their Motions to Dismiss. Tartt, however, failed to
file his response by June 10. Instead, on June 10, Tartt's
attorneys, James Merle Childs, Jr. and Elijah Imanuel Meshiah,
filed something styled a "Motion for Leave of the Court to File
the Plaintiff's Answers to the Defendants' Motions to Dismiss Our
Amended Complaint, Instanter." Nowhere in this Motion is there
any direct response to Defendants' Motions to Dismiss. Instead,
Tartt's attorneys assert that it was not possible for them to
timely respond to Defendants' Motions, as Meshiah received a copy
of NSA's Motion on June 7. However, Childs and Meshiah admit that
they both received a copy of NCH's Motion on May 27, and that
Childs received NSA's Motion on June 3. Childs and Meshiah do not explain why one week was insufficient time to
prepare their response, nor do they explain why they failed to
ask the court for more time. As Tartt's attorneys have failed to
meet the court imposed deadline for filing their response to
Defendants' Motions to Dismiss, and have offered no reasonable
explanation for this failure, Tartt's Motion For Leave of Court
to File the Plaintiff's Answers to the Defendants' Motions to
Dismiss Our Amended Complaint, Instanter, is denied.
B. Defendant Northwest Community Hospital's Motion to Strike
As discussed above, see supra II A, Tartt offers no
reasonable explanation for his failure to timely respond to
Defendants' Motions to Dismiss. However, on July 8, 2004, Tartt's
attorneys filed Plaintiff Tartt's Answer to Defendant
Northwestern Community Healthcare and Defendant Northwestern
Suburban Anesthesiologists Motion to Dismiss Plaintiff Tartt's
Amended Complaint. Defendant NCH then filed its Motion to Strike,
correctly asserting that Tartt's attorneys had filed this
responsive pleading nearly one month late, without leave of the
court to do so. Defendant Northwestern Community Hospital's
Motion to Strike is therefore granted. See Fed.R. Civ. P.
C. Defendants Northwest Community Hospital's and Northwest
Suburban Anesthesiologist's Motions to Dismiss
1. Standard for Motions to Dismiss
When reviewing a motion to dismiss under Rule 12(b)(6), a court
merely looks to the sufficiency of the complaint. Autry v.
Northwestern Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir.
1998). In examining a motion to dismiss, a court should "accept
all well-plead allegations in the complaint as true," Flannery
v. Recording Indus. Ass'n of Am., 354 F.3d 632, 637 (7th Cir. 2004), and view "plaintiff's factual allegations
and any inferences reasonably drawn therefrom in a light most
favorable to the plaintiff." Yasak v. Ret. Bd. of the
Policemen's Annuity Fund, 357 F.3d 677, 678 (7th Cir. 2004).
Dismissal under Rule 12(b)(6) is proper when "it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations." Weizeorick v. Abnamro
Mortgage Group, Inc., 337 F.3d 827, 830 (7th Cir. 2003). Put
another way, "[d]ismissal under Rule 12(b)(6) is only appropriate
when there is no possible interpretation of the complaint under
which it can state a claim." Flannery, 354 F.3d at 637.
A complaint may be dismissed on the grounds of res judicata.
See Andersen v. Chrysler Corp., 99 F.3d 846, 852 (7th Cir.
1996). The doctrine of res judicata acts as a bar to prevent
plaintiffs from relitigating claims or issues already decided by
a court. See Brzostowski v. Laidlaw Waste Sys., Inc.,
49 F.3d 337, 338 (7th Cir. 1995). To obtain a dismissal on the basis of
res judicata, a defendant must show "(1) an identity of the
parties or their privies; (2) an identity of the causes of
action; and (3) a final judgment on the merits." Andersen,
99 F.3d at 852; Brzostowski, 49 F.3d at 338. "Res judicata is
intended to protect a `victorious party from being dragged into
court time and time again by the same opponent on the same cause
of action'. . . ." Lee v. Vill. of River Forest, 936 F.2d 976,
981 (7th Cir. 1991) (quoting Magnus Electronics, Inc. v. La
Republica Argentina, 830 F.2d 1396, 1403 (7th Cir. 1987)).
2. Res Judicata
Both NCH and NSA assert that Tartt's present Amended Complaint
is barred by res judicata. NCH and NSA direct the court's
attention to case 7959, which the court previously dismissed.
See Minute Order of January 29, 2003. To successfully argue
that Tartt's present claims are barred by res judicata, NCH and NSA must show that
1) there was a judgment on the merits in 7959, 2) they are either
the same party as, or in privity with, the Defendant in 7959, and
3) that the cause of action in 7959 is identical to the cause of
action in the present Amended Complaint. See Brzostowski,
49 F.3d at 338; Andersen, 99 F.3d at 852. Both defendants have
successfully made these showings.
There is no question that there was a final judgment on the
merits in 7959: the court dismissed that case with prejudice.
See Minute Order of January 29, 2003. A dismissal with
prejudice is a final judgment on the merits. See Elmore v.
Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000). "[A] dismissal
with prejudice is a final judgment on the merits which will bar a
second suit between the two parties for the same cause of
action." Phillips v. Shannon, 445 F.2d 460, 462 (7th Cir.
Defendant NSA is obviously the same party as the Defendant in
7959. A trickier question is whether Defendant NCH is in privity
with NSA. See In re L & S Indus., 989 F.2d 929, 932 (7th Cir.
1993) ("Privity is an elusive concept."). The Seventh Circuit has
explained that two parties are in privity, for the purposes of
res judicata, when their interests are closely related. See
Studio Art Theater of Evansville, Inc. v. City of Evansville,
Ind., 76 F.3d 128, 131 (7th Cir. 1996) (finding privity where
parties shared a "clear `congruence' of legal issues"). If two
parties have a "sufficiently close identity of interests," a
court may properly find that the parties are in privity. Tice v.
Am. Airlines, 162 F.3d 966, 971 (7th Cir. 1998). In this case,
there is a "sufficiently close identity of interests" between NSA
and NCH. Tartt, while employed by NSA, performed his services as
an anesthesiologist at NCH. NCH and NSA agreed that NSA would be
the exclusive provider of anesthesiology at NCH. All of Tartt's
claims against NCH arise out of his employment with NSA. The court therefore finds that
Defendants NCH and NSA are in privity for the purposes of res
Finally, the court finds that the causes of action in 7569 and
this case are identical. "A claim has `identity' with a
previously litigated matter if it emerges from the same `core of
operative facts' as that earlier action." Brzostowski,
49 F.3d at 338 (quoting Colonial Penn Life Ins. Co. v. Hallmark Ins.
Admin. Inc., 31 F.3d 445, 447 (7th Cir. 1994)). "Under the
federal common law of res judicata, a subsequent suit is barred
if the claim on which it is based arises from the same incident,
events, transaction, circumstances, or other factual nebula as a
prior suit that had gone to final judgment." Okoro v. Bohman,
164 F.3d 1059, 1062 (7th Cir. 1999) (citing Wilson v. City of
Chicago, 120 F.3d 681, 687 (7th Cir. 1997)). In his present
Amended Complaint, Tartt repeats the same allegations he made in
7959. He alleges, as he alleged in 7959, that he entered into an
employment agreement with NSA in 1993. Compare Def. NCH's Mot.
to Dismiss Amended Compl., Ex. 1, ¶ 6, with id., Ex. 2, ¶ 3.
He alleges that he entered the military in July 1994, and took a
leave of absence from NSA. Compare Def. NCH's Mot. to Dismiss
Amended Compl., Ex. 1, ¶ 9, with id. Ex. 2, ¶ 4. He alleges
that upon his return to NSA, he was coerced into signing a
revised employment agreement. Compare Def. NCH's Mot. to
Dismiss Amended Compl., Ex. 1, ¶ 13, with id. Ex. 2, ¶¶
14-15. Finally, he alleges that this revised employment agreement
denied him certain employment benefits, including, inter alia,
retirement benefits, stock ownership, promotions, and salary.
Compare Def. NCH's Mot. to Dismiss Amended Compl., Ex. 1, ¶ 28,
with id. Ex. 2, ¶¶ 5, 16-17, 19-21. Since Tartt's instant
claim is based on the same "factual nebula" as his prior claim in
7959, the court finds that, for the purposes of res judicata,
the claims are identical. See Okoro, 164 F.3d at 1062. Since Defendants have successfully shown that case 7959 reached
a final judgment on the merits, that Defendant NSA is the same as
the Defendant in case 7959, that Defendant NCH is in privity with
NSA, and that the causes of action in case 7959 and the present
Amended Complaint are identical, the court holds that Tartt's
present Amended Complaint is barred by res judicata. With an
abundance of caution, however, the court will examine Defendants'
alternative grounds for dismissal.
3. Tartt's Title VII Claims
A plaintiff seeking to file an employment discrimination suit
under Title VII must receive authorization from the Equal
Employment Opportunity Commission ("EEOC") to do so. See
42 U.S.C. § 2000e-5(b), (e), and (f). The plaintiff must file a
complaint with the EEOC, and receive from the EEOC a "statutory
notice of the right to sue," before bringing a Title VII action
in a federal court. Alexander v. Gardner-Denver Co.,
415 U.S. 36, 47 (1974) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 798 (1973)). In Illinois, the plaintiff must file an
EEOC claim within three hundred days of the allegedly
discriminatory conduct. EEOC v. Harvey L. Walner & Assocs.,
91 F.3d 963, 970 (7th Cir. 1996). Defendants correctly assert that
Tartt has failed to meet this three hundred day deadline. In
fact, Tartt has never filed an EEOC claim at all. Tartt's Title
VII claims therefore fail.
4. Tartt's USERRA Claims
In order to properly plead a claim of employment discrimination
under USERRA, Tartt must allege that his employer, NSA, took
discriminatory employment actions against him that were motivated
at least in part by his military service. 38 U.S.C. § 4311(c)(1).
"An employer shall be considered to have engaged in actions
prohibited (1) under subsection (a), if the person's membership, application for membership, service,
application for service, or obligation for service in the
uniformed services is a motivating factor in the employer's
action . . ." Id.; see also Miller v. City of
Indianapolis, 281 F.3d 648, 650 (7th Cir. 2002). Tartt's present
Complaint offers only the bare allegation that NSA discriminated
against him based on his service in the military. See Def.
Northwest Cmty. Hosp.'s Mot. to Dismiss Amended Compl., Ex. 1, ¶¶
22-28. Tartt has failed to allege any facts that would tend to
show that NSA took any adverse employment action towards him that
was motivated by his service in the military. See Panaras v.
Liquid Carbonic Industries Corp., 74 F.3d 786, 792 (7th Cir.
1996) ("While federal notice-pleading allows for a generous
reading of a complaint, in order to resist a motion to dismiss,
the complaint must at least set out facts sufficient to `outline
or adumbrate' the basis of the claim."); see also Looper
Maintenance Serv., Inc. v. City of Indianapolis, 197 F.3d 908,
911 (7th Cir. 1999) ("a complaint must allege facts bearing on
all material elements necessary to sustain a recovery under some
viable legal theory.") Tartt's USERRA claim against NSA therefore
D. Defendant Northwest Suburban Anesthesiologists' Rule 11
Motion for Sanctions
Contained within Defendant NSA's Motion to Dismiss was an
additional request for sanctions under Rule 11. One of the
purposes of Rule 11 "is to deter baseless filings in the district
court." Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998)
(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393
(1990)). Rule 11 sanctions may be imposed on a party for "making
arguments or filing claims that are frivolous, legally
unreasonable, without factual foundation, or asserted for an
improper purpose." Id. A frivolous argument or claim is one
that is "baseless and made without a reasonable and competent
The court understands NSA's frustration with this protracted
and costly litigation, and dismisses Tartt's claims in their
entirety. However, the Motion for Sanctions is not properly
before the court. NSA has failed to file its motion for sanctions
separately from its motion to dismiss. See Fed.R. Civ. P.
11(c)(1)(A) ("A motion for sanctions under this rule shall be
made separately from other motions or requests. . . ."). The
court therefore declines the invitation to sanction Tartt and his
For the foregoing reasons, NCH's Motion to Strike [97-1] is
granted, NCH's Motion to Dismiss Amended Complaint [91-1] is
granted, NSA's Motion to Dismiss Amended Complaint [90-1] is
granted, Plaintiff's Motion for Leave of the Court to File the
Plaintiff's Answers to the Defendants' Motions to Dismiss Our
Amended Complaint [92-1] is denied, and Defendant NSA's Rule 11
Motion for Sanctions [90-2] is denied.
IT IS SO ORDERED.