In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3939

DERRICK B. TARTT,

Plaintiff-Appellant,

v.

NORTHWEST COMMUNITY HOSPITAL and

NORTHWEST SUBURBAN

ANESTHESIOLOGISTS, LTD.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 7960—Charles R. Norgle, Sr., Judge.

____________

ARGUED FEBRUARY 10, 2006—DECIDED JULY 6, 2006

____________

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge. Derrick Tartt filed two almost

identical lawsuits, and the second one was dismissed by the

district court for the sake of convenience. The remaining

suit was dismissed for failure to state a claim and failure to

prosecute. It was not timely appealed. Undaunted, Tartt

continued litigating both actions. Due to an oversight by the

district court, this court reinstated the suit dismissed for

convenience, and Tartt filed a new complaint on remand.

But by that time res judicata had taken effect from the suit

Tartt failed to timely appeal. The district court held, inter

alia, res judicata barred the complaint filed after remand,
2 No. 04-3939

and Tartt appeals. After delving into the docket sheets of

each case to sort out the matter, we conclude Tartt’s

litigation ship has long since sailed and we affirm the

district court.

I. HISTORY

In July 1993, Derrick Tartt, an anesthesiologist, entered

an employment agreement with the Northwest Suburban

Anesthesiologists (“NSA”), a group of anesthesiologists

which served as the sole provider of anesthesiology services

at Northwest Community Hospital (the “Hospital”). Tartt

took a leave of absence for military duty, which led to a

dispute not before us. Upon Tartt’s return in 1996, Tartt

and NSA entered into a new employment agreement

purporting to resolve those differences. While employed

with NSA, Tartt had medical staff privileges at the Hospital. NSA terminated Tartt’s employment in November 2000.

Proceeding pro se, Tartt filed suit—two actually—on

December 20, 2000, in the Northern District of Illinois. The

first lawsuit, No. 00 C 7959 (“7959”), named NSA as the

only defendant. The second suit, No. 00 C 7960 (“7960”),

was filed against both NSA and the Hospital. The claims

raised by the two complaints were identical, with Tartt

seeking relief under the Uniformed Services Employment

and Re-employment Rights Act of 1994, 38 U.S.C. §§ 4301-

4333 (“USERRA”) and Title VII. The defendants separately

moved to dismiss Tartt’s complaints. On March 2, 2001, the

district court dismissed Tartt’s complaints, allowing him to

re-file should he comply with Federal Rule of Civil Procedure 8(a). In each action, Tartt filed identical amended

complaints pro se and subsequently hired an attorney.

On February 20, 2002, the district court, sua sponte,

issued a rule for Tartt to show cause why one of the cases

should not be dismissed. The defendants moved to dismiss

and to require Tartt to amend his complaint. After Tartt did
No. 04-3939 3

1 This attorney, Wyvonnia Bridgeforth, withdrew as counsel for

Tartt on November 6, 2002, and is no longer representing Tartt,

or for that matter, anyone else. See In re Wyvonnia Ford

Bridgeforth, No. 03CH0036 (Ill. Jan. 14, 2005) (license to practice

law suspended until further order); In re Wyvonnia Ford

Bridgeforth, No. 01CH0078 (Ill. Mar. 19, 2003) (license to practice

law suspended for one year). Tartt obtained his present counsel

shortly thereafter.

not respond, on May 30, 2002, the district court granted the

defendants’ joint motion to dismiss one of the cases. The

district court explained, “Cases 00 C 7959 and 00 C 7960

are redundant of each other, with each case pleading the

same claims against the same Defendants.” The district

court, mistakenly assuming that the parties named in both

actions were identical, chose to dismiss the 7960 case (the

only one naming both parties) and allowed Tartt to amend

his complaint in the 7959 matter (which only named NSA).

Pursuant to the May 30 order, on June 3, 2002, the district

court entered judgment to dismiss the 7960 suit.

On May 31, 2002, the day after the district court’s order,

Tartt filed his second amended complaint in the 7959

action, adding the Hospital as a defendant. At this point,

everything was fine; Tartt had filed a complaint against

both defendants in a single lawsuit. On June 21, the district

court denied the defendants’ motion to dismiss and allowed

Tartt to amend his complaint again, apparently to cure a

minor defect.

It was at this point Tartt’s counsel displayed a stunning

misapprehension of the procedural posture by reinstating Tartt’s misguided pro se strategy of pursuing parallel

lawsuits.1

 On June 26, 2002, Tartt’s counsel filed a third

amended complaint in the 7959 case naming only NSA—

and not the Hospital—as a defendant, pursuant to the

court’s leave. The same day, Tartt’s counsel filed a motion to reconsider the district court’s dismissal of the 7960
4 No. 04-3939

case. We reiterate, prior to these filings, the 7960 case

was a nullity, and both the Hospital and NSA were named

as defendants in the active 7959 lawsuit. But as a result

of Tartt’s counsel’s June 26 filings, the Hospital was no

longer a defendant in the 7959 suit, and its reinstatement

(as a defendant of the 7960 suit) was conditioned upon

the district court’s granting Tartt’s motion to reconsider, a

remote outcome given the court’s recent consolidation of the

litigation. We now depart from a chronological recitation of

the facts, and instead track each lawsuit’s progression

separately.

A. Progression of 7959 Suit—NSA Only Named Defendant

NSA moved to dismiss the 7959 case under Rule 12(b)(6)

and subsequently moved for sanctions and dismissal under

Rule 41(b) for Tartt’s alleged failure to prosecute. On

January 29, 2003, the district court ruled on both motions,

denying NSA’s request for sanctions and dismissing the

7959 suit under Rules 12(b)(6) and 41(b). Tartt did not

immediately appeal the judgment. He did move the district court for an extension to file a motion to reconsider,

which was granted on February 28, 2003. On March 14,

2003, Tartt sought leave to file another complaint. Due

to numerous extensions requested by Tartt’s counsel, the

district court did not rule on this motion until January 29,

2004. The court refused to consider Tartt’s motion, explaining, “[Tartt’s] attempt to re-litigate an issue previously

determined by the court, without citing any basis

for revisiting the issue and failing to properly present

the motion is denied.”

On March 12, 2004, Tartt filed a notice of appeal in the

7959 case, No. 04-1623, challenging the district court’s

judgment of dismissal and subsequent refusal to allow Tartt

to file a new complaint. We issued an order on March 18,
No. 04-3939 5

2004, in which we noted the deadline to appeal the district

court’s judgment had passed over a year before Tartt filed

his notice of appeal. We directed Tartt to show cause why

the appeal should not be limited to the district court’s order

refusing to allow Tartt to amend, and why that order should

not be summarily affirmed. In response, on April 4, 2004,

Tartt moved for voluntary dismissal pursuant to Federal

Rule of Appellate Procedure 42(b), which we granted on

April 5, 2004.

B. Progression of 7960 Case—Naming Both Defendants

In Tartt’s counsel’s motion to reconsider the dismissal of

the 7960 action, Tartt argued that the Hospital’s dismissal

“seriously injures [Tartt’s] ability to present a full picture to

this Court of the ‘joint-actions’ of the [Hospital] and [NSA]

. . . .” Apparently Tartt’s “full-picture” argument was

insufficient to apprise the district court that the named

defendants in the suits were different. In a minute order

entered on January 31, 2003 (the same day the 7959 suit

was dismissed), the district court denied Tartt’s motion for

reconsideration, again citing redundancy. Even though both

were issued the same day, Tartt appealed the order denying

his motion to reconsider, but not, as we explained in the

previous section, the judgment dismissing the 7959 action.

In an unpublished order dated October 21, 2003, we noted

the district court’s mistaken belief that the parties were

identical in each suit and vacated the dismissal of the 7960

suit and remanded it for further proceedings. Tartt v. Nw.

Cmty. Hosp., 79 F.App’x 219 (7th Cir. 2003) (unpublished

order). We explained that by previous order, “we limited

this appeal to a review of the district court’s January 31,

2003, order denying Dr. Tartt’s motion to reconsider based

on the fact that the motion, filed more than ten days after

the entry of judgment, did not toll the time to appeal.”

Treating Tartt’s motion to reconsider as a late-filed motion
6 No. 04-3939

2 To clarify, throughout this discussion we refer to res judicata

solely in the context of “claim preclusion,” and not its analogue

“issue preclusion” which is governed by the doctrine of collateral

estoppel. See Garcia v. Vill. of Mount Prospect, 360 F.3d 630,

634 n.6 (7th Cir. 2004) (distinguishing the two) (citations omitted).

to alter or amend a judgment under Rule 60(b), we concluded, “Because it appears from the record that the district

court erred in dismissing for redundancy Case No. 00-C7960, the case with both defendants, rather than Case No.

00-C-7959, the case naming only NSA, we remand the case

for further proceedings” pursuant to Rule 60(b)(1).

On remand, the district court granted Tartt’s request

to file his second amended complaint in the 7960 case,

which he did on April 23, 2004. Tartt alleged two counts:

the first against NSA and the second against the Hospital.

Both counts once again alleged violations of USERRA

and Title VII. On May 27, 2004, the defendants moved

to dismiss Tartt’s second amended complaint on res judicata

grounds, arguing Tartt was seeking to re-litigate the claims

of the 7959 case which had been dismissed with prejudice

on January 29, 2003. Alternatively, the defendants claimed

Tartt had failed to state a claim. On October 1, 2004, the

district court dismissed the 7960 action citing res judicata

and, out of an abundance of caution, the merits. Tartt

appeals the dismissal of the 7960 suit.

II. ANALYSIS

The defendants argue Tartt is seeking to re-litigate claims

in his 7960 suit which were losers in the 7959 case. Tartt

gives short shrift to the res judicata issue2

 and instead

focuses his efforts on appeal on the proceedings in the 7960

suit following remand. However, none of these issues

warrant discussion. Relevant and dispositive are

the proceedings beforehand, during which Tartt’s res

judicata problem arose.
No. 04-3939 7

“We review de novo the district court’s dismissal of a

suit on res judicata grounds.” Andersen v. Chrysler Corp., 99

F.3d 846, 852 (7th Cir. 1996) (citing Kratville v. Runyon, 90

F.3d 195, 198 (7th Cir. 1996)). Res judicata applies if there

is: “(1) a final judgment on the merits in an earlier action,

(2) an identity of the cause of action in both the earlier and

later suit, and (3) an identity of parties or privies in the two

suits.” Smith v. City of Chicago, 820 F.2d 916, 917 (7th Cir.

1987) (citing Lee v. City of Peoria, 685 F.2d 196, 199 (7th

Cir. 1982)); see Brzostowski v. Laidlaw Waste Sys., Inc., 49

F.3d 337, 338 (7th Cir. 1995) (citations omitted).

Because Tartt did not appeal the dismissal of the 7959

action within 30 days, the entry of judgment pursuant to

Rules 12(b)(6) and 41(b) on January 29, 2003, amounts to a

final judgment on the merits for res judicata purposes. See

Fed. R. App. P. 4(a)(1)(A); Horwitz v. Alloy Auto. Co., 992

F.2d 100, 102 (7th Cir. 1993) (citations omitted); Cannon v.

Loyola Univ. of Chicago, 784 F.2d 777, 780 (7th Cir. 1986)

(citations omitted); Phillips v. Shannon, 445 F.2d 460, 462-

63 (7th Cir. 1971) (citations omitted). Complicating matters,

however, is the subsequent procedural history of the 7960

case. Tartt argues there is no res judicata problem in light

of our order dated October 21, 2003, which he claims

resurrected the controversy in full. But our order stated

with precision the scope of the appeal: the district court’s

denial of Tartt’s motion to reconsider the dismissal of the

7960 case. Outside that scope was the district court’s grant

of NSA’s motion to dismiss the 7959 action. Our reinstatement of the 7960 action did not have the additional effect of

reversing the judgment in the 7959 action, which could have

been appealed by its own right. Thus the judgment dismissing the 7959 action, with only NSA as the defendant,

remains a final judgment with res judicata effect.

The second part of our res judicata analysis, identity of

actions, is met. “ ‘[T]wo claims are one for purposes of res

judicata if they are based on the same, or nearly the
8 No. 04-3939

same, factual allegations.’ ” Manicki v. Zeilmann, 443 F.3d

922, 925 (7th Cir. 2006) (quoting Herrmann v. Cencom

Cable Assocs., Inc., 999 F.2d 223, 226 (7th Cir. 1993)). As for

the appropriate level of abstraction in construing

facts—broad or narrow—we have said it is proper to

examine the “facts” at a sufficient level of specificity to

ensure fair notice to the parties and predictability.

Andersen, 99 F.3d at 852-53 (citing Colonial Penn Life Ins.

Co. v. Hallmark Ins. Adm’rs, 31 F.3d 445 (7th Cir. 1994); In

re Stoecker, 5 F.3d 1022 (7th Cir. 1993)). We need not explore the nuances of this standard, for the relevant complaints (the third amended complaint filed June 26, 2002,

in the 7959 suit, and the second amended complaint filed

April 23, 2004, in the 7960 case) are virtually identical.

In each complaint, Tartt alleged the following: he entered

into an employment agreement with NSA in 1993; he

entered the military in 1994 and took a leave of absence

from NSA; upon his return to NSA he was coerced into

signing an amended employment agreement; the amended

agreement denied him of retirement benefits, stock ownership, promotions, salary, training, and vacation. We agree

with the district court that in the 7960 case, Tartt merely

repeats the same factual allegations as the 7959 case.

As for the identity of parties, the 7959 judgment’s res

judicata effect clearly covers NSA, which is named as a

defendant in each suit. The Hospital seeks res judicata

protection by the 7959 judgment by proclaiming to be in

privity with NSA. Res judicata bars subsequent suits

against those who were not party to a prior suit if their

interests are closely related to those who were. See Tice v.

Am. Airlines, Inc., 162 F.3d 966, 971 (7th Cir. 1998) (citations omitted); see also Garcia, 360 F.3d at 636 (holding

village to be in privity with police pension board due to

agency relationship); Studio Art Theater of Evansville, Inc.

v. City of Evansville, 76 F.3d 128, 131 (7th Cir. 1996)
No. 04-3939 9

(holding privity exists where there is a link between parties

in successive suits which share a “clear congruence of legal

issues” (quotations omitted)).

Not only is it plain that the Hospital could have been

joined to the 7959 action (indeed it was joined before Tartt

filed his second amended complaint), but also that the

Hospital should have remained a party to the 7959 action.

Tartt’s former employer, NSA, is the exclusive provider of

anesthesiology services at the Hospital. Both of Tartt’s

employment agreements with NSA included clauses

conditioning his privileges at the Hospital upon his employment with NSA. All of the claims Tartt alleged against the

Hospital arose from his employment with NSA. As Tartt

himself argued, the Hospital and NSA were so intertwined

that dismissal of the Hospital from the lawsuit would

prevent him from showing the “full picture . . . of [their]

joint actions.” Thus it is clear NSA and the Hospital have a

“sufficiently close identity of interests” so that they are

indeed in privity.

The only difference between the two suits, as Tartt

recognizes, is that the later action named the Hospital

as a defendant while the earlier action did not. Because the

Hospital is in privity with NSA, res judicata properly bars

Tartt’s actions against them both.

III. CONCLUSION

The district court’s judgment is AFFIRMED.
10 No. 04-3939

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-6-05