SARGENT v. MAINEHEALTH

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

MONIQUE SARGENT, individually )

and on behalf of all those similarly )

situated, )

)

Plaintiff, )

)

v. ) 2:22-cv-00006-JAW

)

MAINEHEALTH, )

)

Defendant. )

ORDER ON DEFENDANT’S MOTION FOR JUDGMENT ON THE

PLEADINGS

A defendant parent company brings a motion for judgment on the pleadings

pursuant to Federal Rule of Civil Procedure 12(c) arguing that the action against it

should be dismissed because the plaintiff’s claims were improperly split from a prior

action filed against the defendant’s subsidiary. The Court concludes that the plaintiff

improperly split her claims against the parent company and subsidiary and dismisses

without prejudice the plaintiff’s complaint against the parent company.

I. PROCEDURAL HISTORY

On December 15, 2020, Monique Sargent filed a two-count complaint against

NorDx alleging disability discrimination under the Americans with Disabilities Act

(ADA) and the Maine Human Rights Act (MHRA). Sargent v. NorDx, No. 20-cv-

00467-JAW (Sargent I), Compl. at 5-6 (ECF No. 1) (Sargent I Compl.). NorDx

answered the complaint on April 23, 2021. Sargent I, Def.’s Answer to Pl.’s Compl.

(ECF No. 5). The Magistrate Judge set the discovery deadline for January 10, 2022.

Sargent I, Order (ECF No. 12).

On January 6, 2022, Ms. Sargent filed a four-count class-action lawsuit against

MaineHealth alleging retaliation and interference with her rights under the Federal

Family Medical Leave Act (FMLA), and discrimination and interference with her

rights under the Maine Family Medical Leave Act (Maine FMLA). Sargent v.

MaineHealth, No. 22-cv-00006-JAW (Sargent II), Compl. at 26-31 (ECF No. 1)

(Sargent II Compl.). That same day, Ms. Sargent filed a motion to amend the

scheduling order in Sargent I. Sargent I, Pl.’s Mot. to Amend Scheduling Order (ECF

No. 14). On January 11, 2022, NorDx opposed Ms. Sargent’s motion to amend the

scheduling order. Sargent I, Def.’s Opp’n to Pl.’s Mot. to Amend Scheduling Order

(ECF No. 16). In its opposition, NorDx indicated that it would move to stay Sargent

I pending the resolution of Sargent II, and that its parent company MaineHealth

intended to imminently file a motion to dismiss Sargent II. Id. at 1, 5-6; Sargent I,

Mot. to Stay (ECF No. 18). On January 12, 2022, Ms. Sargent responded to NorDx’s

motion to stay indicating that she did not oppose the stay. Sargent I, Pl.’s Resp. to

Def.’s Mot. to Stay at 2 (ECF No. 19). On January 13, 2022, the Magistrate Judge

issued an order granting NorDx’s motion to stay and deferring ruling on the motion

to amend the Sargent I scheduling order pending resolution of MaineHealth’s

anticipated motion to dismiss in Sargent II. Sargent I, Order (ECF No. 20).

On February 14, 2022, MaineHealth filed a motion for judgment on the

pleadings in Sargent II. Sargent II, Def.’s Mot. for J. on the Pleadings (ECF No. 6)

(Def.’s Mot.). On March 21, 2022, Ms. Sargent filed her opposition to MaineHealth’s

motion for judgment on the pleadings. Sargent II, Pl.’s Opp’n to Def.’s Mot. for J. on

the Pleadings (ECF No. 10) (Pl.’s Opp’n). MaineHealth replied on April 1, 2022.

Sargent II, Def.’s Reply in Supp. of Mot. for J. on the Pleadings (ECF No. 11) (Def.’s

Reply).

II. FACTS1

A. The Parties

MaineHealth is a non-profit corporation organized in the state of Maine.

Sargent II Compl. ¶ 5. It is the largest healthcare organization in the state and is

the parent company to multiple integrated healthcare providers operating under the

“MaineHealth” umbrella. Id. NorDx is a MaineHealth subsidiary and is authorized

by the state of Maine to operate as a human specimen laboratory. Id. ¶ 6. Ms.

Sargent is a resident of Biddeford, Maine, and was hired by NorDx in 2016 as a

phlebotomist in NorDx’s Biddeford oncology office. Id. ¶¶ 4, 24.

Ms. Sargent alleges that she was jointly employed by MaineHealth and NorDx

because they share common management, ownership, direction and control,

1 “A motion for judgment on the pleadings bears a strong family resemblance to a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), and these two types of motions are treated in

much the same way.” Kando v. R.I. State Bd. of Elections, 880 F.3d 53, 58 (1st Cir. 2018) (citing

Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006)). Accordingly, the Court relies upon the

allegations in Ms. Sargent’s complaints in both Sargent I and Sargent II. Foley v. Wells Fargo Bank,

N.A., 772 F.3d 63, 68 (1st Cir. 2014); Medina-Velázquez v. Hernández-Gregorat, 767 F.3d 103, 108 (1st

Cir. 2014) (“We examine whether the operative complaint states a claim for which relief can be granted

when we construe the well-pleaded facts in the light most favorable to the plaintiffs, accepting their

truth and drawing all reasonable inferences in the plaintiffs’ favor” (internal citation omitted)).

Moreover, “[a] court ‘is entitled to take judicial notice of all related proceedings and records in cases

before the same court.’” Gladu v. Correct Care Sols., No. 2:15-cv-00384-JAW, 2017 U.S. Dist. LEXIS

53465, at *9-10 (D. Me. Apr. 7, 2017) (quoting Doustout v. G.D. Searle & Co., 684 F. Supp. 16, 17 n.1

(D. Me. 1988)). The Court may therefore look to the pleadings in the related case, Sargent I.

administration of employee benefits, operations, employee health services, labor

counsel, and human resources. Id. ¶ 9. As a NorDx employee, Ms. Sargent was also

considered a “MaineHealth System Employee” working at the “SMHC Biddeford

Specimen Mgmt” department, which was also referred to as the “NDX Specimen

Mgmt SMMC.” Id. ¶¶ 10, 12. Employee documents and payroll records indicate that

Ms. Sargent worked for a company called “MaineHealth.” Id. ¶¶ 11, 14. Ms. Sargent

signed a “MaineHealth Confidentiality Agreement” upon her hiring, and she was

subject to MaineHealth’s attendance policy and code of conduct. Id. ¶¶ 13, 17-18. Ms.

Sargent also states that MaineHealth posted the job description for her position as

“Phlebotomist II” and listed “NorDx” as the relevant facility. Id. ¶ 19. Finally, Ms.

Sargent’s work email address ended in “mmc.org” and when she filed paperwork with

the Department of Labor following her termination from NorDx, “Maine Medical

Center” was the listed employer. Id. ¶¶ 13, 15-19.

B. Sargent I

In her first lawsuit filed on December 20, 2020, Ms. Sargent alleges that NorDx

violated the ADA and the MHRA by discriminating against her on the basis of her

disability. Sargent I Compl. ¶¶ 30-39. Ms. Sargent states that she has substantial

disfigurement involving extensive oral and tooth decay from a family history of “soft

teeth,” exacerbated by asthma and ADHD medication. Id. ¶¶ 12-14. She says that

her tooth decay is so severe that she tries to hide her teeth when she speaks and

avoids revealing her teeth when smiling. Id. ¶ 13.

In April 2019, Human Resources (HR) informed Ms. Sargent that she was

being transferred from the NorDx oncology office because her teeth did not conform

with NorDx’s image. Id. ¶ 16. In a meeting with HR employee Cassie Christie, Ms.

Christie informed Ms. Sargent that her appearance did not fit with the “image South

Portland was trying to receive” and threatened that Ms. Sargent would be out of work

until she fixed her teeth. Id. ¶¶ 17-18. Ms. Sargent contends that she would need

more time to save money to have her teeth fixed and being out of work would make

it impossible for her to have the procedure done. Id. ¶ 18.

NorDx ultimately allowed Ms. Sargent to continue to work in the NorDx office

but mandated that she wear a mask at all times, regardless of whether she felt ill.

Id. ¶¶ 19-20. Ms. Sargent alleges that up until April 2019 she was never asked to

wear a mask because of her appearance or because of bad breath, and was, instead,

praised by her patients for her phlebotomy procedures. Id. ¶¶ 21-23. Ms. Sargent

says she was shortly thereafter terminated for improperly viewing patient records,

which she contends was a pretext for termination on the basis of her medical

condition. Id. ¶¶ 25-26. She further asserts that she only reviewed patient records

of those individuals she worked with directly or who were the patients of other

phlebotomists in the oncology office who requested her assistance. Id. ¶ 27.

C. Sargent II

In her second lawsuit filed on January 6, 2022, Ms. Sargent asserts that

MaineHealth and NorDx have a longstanding pattern of FMLA retaliation. She

explains that she previously worked for NorDx, asserting that NorDx fabricated

pretextual reasons to terminate her after she requested medical leave in 2013.

Sargent II Compl. ¶¶ 25-26. Ms. Sargent says that MaineHealth and NorDx would

not have rehired her in 2016 had the 2013 accusations leading to her termination

been true. Id. ¶ 27.

By 2018 Ms. Sargent was again eligible for FMLA leave and needed it to take

her son to therapy three times per week and to doctor’s appointments due to his

mental health. Id. ¶¶ 29-30. NorDx employees, team lead Christie Gerrish and Ms.

Sargent’s supervisor,2 Irina Bachand, were both aware of this need, but NorDx failed

to give Ms. Sargent notice of her rights under FMLA. Id. ¶ 31. In early January,

2019, Ms. Sargent requested two hours of paid time off (PTO) on January 22, 2019,

so she could take her son to a doctor’s appointment; she requested an “early lunch”

on February 3, 2019, so that she could take her son to a doctor’s appointment that

would “only take about an hour”; and she requested four hours of PTO on February

7, 2019, so she could take her boys to a dentist appointment. Id. ¶¶ 32-34.

As team lead, Ms. Gerrish’s role was to assist with scheduling issues if a

phlebotomist who had been scheduled at a particular location called out. Id. ¶ 35.

On January 18, 2019, Ms. Gerrish contacted Ms. Sargent via Facebook Messenger at

7:30 am, a half hour before her scheduled shift in Biddeford was set to start, to ask

Ms. Sargent if she could instead work in the NorDx South Portland Office that day.

Id. ¶ 36. Ms. Sargent explained that her daughters’ cheering competition was

scheduled for that afternoon, and she would prefer not to go to the South Portland

2 Paragraph 31 of the Sargent II Complaint states: “NorDx employees, team lead (Christie

Gerrish) and her supervisor, (Irina Bachand), were both aware of Sargent’s need to take intermittent

leave . . ..” Sargent II Compl. ¶ 31. The way this is written, the Court cannot tell whether Mr. Bachand

was Ms. Sargent’s supervisor or Ms. Gerrish’s supervisor. For purposes of its recitation of the facts in

the Sargent II Complaint, the Court assumes that Ms. Bachand was Ms. Sargent’s supervisor, but this

issue is immaterial to the resolution of the pending motion.

office because she would miss the cheer competition. Id. ¶ 37. Ms. Gerrish told Ms.

Sargent to report to the Biddeford office as scheduled and that she would try to get

another phlebotomist to cover the South Portland office. Id.

However, on January 29, 2019, Ms. Bachand wrote up Ms. Sargent for not

reporting to the South Portland office on January 18, 2019. Id. ¶ 38. NorDx gives

phlebotomists two weeks’ advance notice of the location where they are to work on a

given day. Id. ¶ 40. On January 24, 2019, Ms. Bachand wrote to Ms. Gerrish about

Ms. Sargent stating that “we give two weeks [sic] notice on these things . . . if it’s

more you don’t need her approval,” which Ms. Sargent says establishes that less than

two weeks’ notice of a schedule change does require an employee’s pre-approval, and

that an employee who cannot change her schedule at the last minute is not

insubordinate, as Ms. Bachand wrote on Ms. Sargent’s January 29, 2019, corrective

action. Id. Ms. Sargent notes that although Ms. Bachand did not write her up with

a corrective action until January 29, 2019, she says that between January 18 and

January 29, Ms. Bachand and Ms. Gerrish exchanged emails discussing that Ms.

Sargent was unable to cover an upcoming shift because she needed an hour off

between 9:15-10:15 am for an appointment, which Ms. Sargent submits should have

been protected by the FMLA. Id. ¶ 43. Ms. Sargent contends that the timing of the

events gives rise to a strong inference of retaliation under the FMLA, and that Ms.

Bachand had notice of Ms. Sargent’s need for medical leave but never took the steps

to advise Ms. Sargent of her FMLA rights and responsibilities. Id. ¶¶ 44-45.

At the time of the events in January 2019, Ms. Gerrish was living with Ms.

Sargent. Id. ¶ 46. On January 31, 2019, Ms. Sargent received a call from her landlord

that an ambulance was parked in her driveway. Id. ¶ 47. Ms. Sargent returned home

to learn that Ms. Gerrish found her baby daughter unresponsive in the home, that

Ms. Gerrish had attempted to administer CPR on Ms. Sargent’s kitchen table in the

presence of Ms. Sargent’s children, and that Ms. Gerrish’s daughter had died from

SIDS.3 Id. ¶¶ 48-49. As a result of the events Ms. Sargent’s children were

traumatized and Ms. Sargent’s son had a panic attack caused by the trauma of the

events. Id. ¶ 49. From January 31 into the morning of February 1, 2019, Ms. Sargent

and her family remained with Ms. Gerrish to be interviewed by first responders and

the police. Id. ¶ 50.

After having been up all night, Ms. Sargent was unable to go to work the

following day on February 1, 2019, and none of Ms. Sargent’s children was physically

or mentally capable of going to school. Id. ¶ 51. Ms. Sargent determined that it would

have been unsafe for her to draw blood, so she called out of work. Id. However, NorDx

did not consider this absence protected by the FMLA and instead cited Ms. Sargent

for unexcused absences from work. Id. Everyone at NorDx who worked closely with

Ms. Gerrish and Ms. Sargent was aware that Ms. Sargent and/or her children

witnessed the traumatic events. Id. ¶ 52. Patricia Hazard, HR Director, sent an

3 The Sargent II Complaint uses the abbreviation SIDS. Sargent II Compl. ¶ 49. The Court

assumes the Complaint is referring to the common abbreviation for Sudden Infant Death Syndrome.

email to all SMMC4 lab staff, including Ms. Bachand, discussing a PTO donation to

Ms. Gerrish. Id. Kathy Messier, Ms. Sargent’s colleague, also suggested a PTO

donation for Ms. Sargent. Id.

Ms. Gerrish’s daughter’s funeral was scheduled for February 5, 2019, and Ms.

Gerrish asked Ms. Sargent to attend. Id. ¶ 53. Ms. Sargent thereafter emailed Ms.

Bachand and others asking for coverage and bereavement leave on February 5, 2019,

so that she could attend the baby’s funeral, as well as a memorial service for her

husband’s grandmother that was scheduled for that afternoon. Id. Ms. Sargent

called out of work on February 5, 2019, and Ms. Bachand counted this as an

unexcused absence and included it in the same corrective action disciplining her for

missing work on February 1, 2019. Id. ¶ 55.

Ms. Bachand began to investigate Ms. Sargent’s requests for bereavement

leave related to the baby’s death and funeral. Id. ¶ 56. Under MaineHealth’s policy,

bereavement leave is defined as “leave granted to give employees time to arrange and

attend funeral services for a member of their immediate family.” Id. ¶ 57.

“Immediate family” includes “other relative[s] living in the same household” which

Ms. Sargent reasonably believed to include Ms. Gerrish’s baby, as Ms. Gerrish was

living in Ms. Sargent’s home and Ms. Gerrish’s children called Ms. Sargent “auntie.”

Id.

4 The Sargent II Complaint uses the abbreviation SMMC. Sargent II Compl. ¶ 52. The Court

assumes that the Complaint is referring to Southern Maine Medical Center, which the Court

understands is a division of MaineHealth.

On February 13, 2019, Ms. Sargent requested three hours of PTO for March 1,

2019, to take her daughter to a dentist appointment and four hours of PTO on March

21, 2019, for her child’s orthodontist appointment. Id. ¶¶ 58-59. On February 14,

2019, Ms. Sargent notified Ms. Bachand that because she fell injuring her shoulder

and neck, she may have difficulty drawing blood at “weird angles” the next day. Id.

¶ 60. Ms. Bachand did not notify Ms. Sargent of her right to take intermittent FMLA

leave. Id.

On February 25, 2019, and March 7, 2019, Ms. Bachand asked Ms. Sargent to

pick up extra shifts in the evening and/or on the weekend, which Ms. Sargent told

her she could not do because she needed to spend time with her children and/or care

for a sick child. Id. ¶¶ 61-62. On March 11, 2019, Ms. Bachand gave Ms. Sargent a

corrective action for the period of time Ms. Sargent called out of work to attend the

baby’s funeral on February 5, 2019. Id. ¶ 64. Ms. Bachand wrote that “[u]pon

investigation, it was found that [Ms. Sargent] does not have any familial relation to

the person”; Ms. Bachand accused Ms. Sargent of acting dishonestly and violating the

code of conduct by making “false and misleading statements” about her relationship

with Ms. Gerrish’s deceased child. Id. ¶ 64.

On March 13, 2019, Ms. Bachand gave Ms. Sargent a third corrective action to

discipline Ms. Sargent for “accruing 6 unscheduled absences in a rolling calendar

year” in violation of NorDx policy. Id. ¶ 65. Ms. Sargent contends that two of the

absences were related to Ms. Gerrish’s daughter’s death and should have been

excused. Id. One of the unexcused absences occurred on November 8, 2018, when

Ms. Sargent had to take her son to the emergency department. Id. ¶ 67. There is no

record of Ms. Sargent having obtained PTO approval in advance because it was an

emergency, but Ms. Sargent says she gave NorDx enough information about the

absence to put it on notice of her need for FMLA-protected leave. Id. A second

incident flagged in the corrective action occurred on April 6, 2018, when Ms. Sargent

was late to work because she had to bring her son to the doctor. Id. ¶ 68. The March

13, 2019, corrective action informed Ms. Sargent that “[i]f you or a family member

has a serious health condition, you may qualify for FMLA.” Id. ¶ 69.

On March 18, 2019, Ms. Sargent notified NorDx that she was running late

because she had to bring her son to the doctor’s. Id. ¶ 70. The employee who took

Ms. Sargent’s call recorded the reason for her tardiness as “Family & Medical Leave

–Family – FML[A].” Id. The absence log entry was sent via email to Ms. Bachand

and others, putting them on notice that Ms. Sargent had a need for intermittent

FMLA leave. Id.

On March 19, 2019, Ms. Sargent emailed Ms. Bachand asking to change her

schedule to come in to work early and leave by 3:30 so she could bring her son to a

doctor’s appointment at 4:00 pm. Id. ¶ 71. Ms. Bachand ignored the request and

instead asked Ms. Sargent to work in South Portland until 4pm. Id. Ms. Sargent

again reiterated her request and alleges that instead of treating the request as one

for intermittent leave protected by the FMLA, Ms. Bachand wrote “Waiting on

confirmation, but it’s looking like it’ll be okay.” Id. Ms. Sargent submits that she

should not have had to repeatedly ask to leave early or emphatically thank her

supervisor in order to take protected FMLA leave. Id.

On March 28, 2019, Ms. Sargent submitted a time off request for four hours of

PTO on April 16, 2019, and three hours on May 7, 2019 (later changing that request

to eight hours), to bring her daughter to the orthodontist to have braces put on. Id.

¶¶ 72-73. She also requested a full eight hours of PTO for April 30, 2019, for two

medical appointments for her daughter. Id. ¶ 74.

On April 2, 2019, in an email exchange between Ms. Bachand and Ms. Gerrish,

Ms. Gerrish stated that “Monique makes my brain want to explode” and Ms. Bachand

responded, “agreed.” Id. ¶ 75. On April 25, 2019, Ms. Gerrish forwarded to Ms.

Bachand an email with Ms. Sargent where Ms. Sargent told Ms. Gerrish that she

could not work Monday morning rounds. Id. ¶ 76. Ms. Gerrish wrote to Ms. Bachand,

“you called it” followed by “smh,” which means “shake my head.” Id.

Ms. Bachand and HR Partner Cassie Christie, recommended Ms. Sargent for

termination, at which time HR Director Patricia Hazard, asked if Ms. Sargent was

on any protected leave. Id. ¶ 78. HR responded that the “Unum login” was not

working, but that the “HR Solution Center” listed Ms. Sargent as being on

intermittent FMLA leave between March and April 16, 2019. Id. NorDx has no

record that Ms. Sargent was advised of her FMLA rights and responsibilities. Id. ¶

79.

Ms. Sargent alleges that NorDx intensified its efforts to terminate her

employment in April and May 2019, during which time NorDx relocated Ms. Sargent

from the Biddeford oncology office to a Saco draw station, claiming that patients were

complaining about her teeth in the oncology office. Id. ¶ 81. Ms. Sargent further

alleges that NorDx’s accusations grew more egregious in May 2019 when

MaineHealth created an anonymous complaint about her despite no record of an

actual complaining patient. Id. ¶ 84. It was around this time that Ms. Sargent says

Ms. Bachand falsely accused her of HIPAA violations for accessing charts for patients

she was no longer assigned to. Id. ¶ 85. Ms. Sargent maintains that she only accessed

the patient charts in order to answer co-worker questions about those patients. Id.

III. THE PARTIES’ POSITIONS

A. MaineHealth’s Motion for Judgment on the Pleadings

MaineHealth brings a motion pursuant to Federal Rule of Civil Procedure 12(c)

requesting that the Court dismiss Sargent II with prejudice because Ms. Sargent has

“improperly split her claims in order [to] avoid demonstrating good cause for

amendment of her pleading” in Sargent I. Def.’s Mot. at 1. MaineHealth contends

that Ms. Sargent’s counsel initially informed it that she would move to amend her

Sargent I complaint to add FMLA claims but that Ms. Sargent reversed course,

stating her intent to file a second action against NorDx and MaineHealth and that

she would seek to consolidate the two actions. Id. at 2. Following a recitation of the

facts, MaineHealth asserts that “[i]n both Sargent I and Sargent II, Plaintiff

challenges the actions and motivations of the same decision-makers in NorDx human

resources and management, over the same period of time.” Id. at 4. As a result, “the

Court can reasonably and accurately infer that th[e] same history of progressive

discipline [in Sargent II] is directly at issue in [Sargent I]. Id. at 5.

In its analysis, MaineHealth submits that “[t]he doctrine against claim

splitting is closely related to the doctrine of claim preclusion,” and that, specifically,

“the claim splitting defense turns on establishing the second and third elements of

the test for claim preclusion” namely sufficient identicality between the causes of

action and the parties. Id. at 5-6.

In application, MaineHealth argues that the FMLA suit (Sargent II) “arise[s]

from the same employment relationship and nucleus of operative facts as [the]

discrimination claims in Sargent I” because “[b]oth sets of claims encompass the same

time period, the same decision-makers, . . . the same allegedly adverse employment

action . . . [and] also involve effectively the same parties.” Id. at 6. It differentiates

the two suits primarily on Ms. Sargent’s allegations of pretext in her termination,

namely disability discrimination in Sargent I and FMLA retaliation in Sargent II. Id.

at 10. In sum, MaineHealth submits that “there is no escaping the conclusion that

the two sets of claims are ‘related in time, space, origin, or motivation,’ and would

constitute a ‘convenient trial unit.’” Id. at 11 (quoting Havercombe v. Dep’t of Educ.

of the Commonwealth of P.R., 250 F.3d 1, 4-5 (1st Cir. 2001)).

Furthermore, MaineHealth contends that “the parties in both cases are

effectively identical for claim-splitting purposes.” Id. It specifically points to Ms.

Sargent’s admission in her Sargent II complaint that NorDx is a subsidiary of

MaineHealth and shares its ownership, management, operations, and human

resources functions, arguing that “Plaintiff plainly could have asserted her FMLA

claims against NorDx directly in Sargent I, or she could have added MaineHealth as

a party to that action and asserted these claims against MaineHealth, NorDx, or

both.” Id. at 12. It further argues that Ms. Sargent’s “styling of Sargent II as a class

action” does not save the case from dismissal because “Sargent is the only named

plaintiff in both actions, and it is axiomatic that claim preclusion applies to the named

plaintiffs in class actions, regardless of the outcome of the suit as to the unnamed

class members or whether the class is ever certified.” Id. at 12-13.

In conclusion, MaineHealth asserts that although a court may dismiss, stay,

enjoin, or consolidate a duplicative suit, here “the appropriate remedy is for the Court

to dismiss Sargent II with prejudice, unless Plaintiff seeks and is granted leave to

amend in Sargent I.” Id. at 13. MaineHealth says that “there is no valid justification

for Plaintiff bringing a second suit rather than seeking to amend her complaint in

Sargent I” where Ms. Sargent “has not alleged any facts in Sargent II that were

unavailable to her prior to filing Sargent I, as both suits arise out of her employment

relationship with Defendants and both sets of claims had accrued as of her

termination in May 2019.” Id. MaineHealth ultimately labels Sargent II “the type of

gamesmanship that the rule against claim splitting is intended to prevent.” Id. at

14.

B. Monique Sargent’s Opposition

Ms. Sargent contends that “Sargent II should proceed through discovery as the

more time-consuming and complex FMLA class action that seeks to consolidate and

adjudicate the rights of many employees” and that Sargent I should remain stayed to

“eliminate any ‘vexatious’ problems associated with concurrent litigation.” Pl.’s

Opp’n at 2. She further submits that “[b]ecause not a single deposition was conducted

in [Sargent I] until December 13, 2021, MaineHealth would not have been prejudiced

by Plaintiff requesting leave to amend to add an FMLA claim.” Id. at 3. She says

that “while litigating Sargent I in the Maine Human Rights Commission, Plaintiff

never saw documents related to rights and responsibilities under the FMLA.” Id. at

4. As a result, Ms. Sargent contends that she “had very little information about the

basis for an FMLA claim until the deposition stage” and it was “only after counsel sat

through Plaintiff’s deposition . . . that the full extent of NorDx’s FMLA violations

were realized.” Id.

Ms. Sargent further argues that “[t]he lag time between Sargent I’s July 9,

2021, deadline to amend and the depositions that occurred in December of 2021 was

a product of mutual agreement by the parties, not a lack of diligence” on her part. Id.

She therefore contends that she “would have met the Rule 16(b) ‘good cause’ standard

to amend in January of 2022” but instead chose, in light of Ms. Bachand’s deposition

testimony, to file a new suit because the “systemic nature” of the FMLA violations

made “clear that a class action was appropriate.”5 Id. at 4-5. “Even if [her] individual

FMLA claim were added to Sargent I,” Ms. Sargent says that “the remaining putative

class members’ interests would not be adjudicated.” Id. at 5. As a result, she says

that “[j]udicial economy would be promoted . . . [i]f this Court stays Sargent I through

5 Ms. Sargent attaches her deposition in Sargent I to support her opposition. However, in

resolving a Rule 12(c) motion the Court can only consider “documents incorporate by reference into

the complaint, matters of public record, and facts susceptible to judicial notice.” Grajales v. P.R. Ports

Auth., 682 F.3d 40, 44 (1st Cir. 2012); see also Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267

F.3d 30, 33-34 (1st Cir. 2001) (explaining when a court my rely on documents extrinsic to the complaint

in resolving a 12(b)(6) motion to dismiss). Ms. Sargent did not incorporate by reference her deposition

into the Sargent II complaint, nor is the deposition a matter of public record or information that the

Court may take judicial notice of. The Court therefore does not consider the deposition in resolving

this motion.

limited discovery and a determination of whether class certification is appropriate in

Sargent II.” Id. at 6. Ms. Sargent thus urges the Court to defer ruling on

MaineHealth’s motion “until such time as the class certification issue has been

decided.” Id.

As to the merits, Ms. Sargent argues that “[t]he First Circuit does not endorse

dismissal or bar concurrent litigation between similar parties absent of a final

judgment.” Id. at 8. Specifically, she says that MaineHealth “conflates the concept

of claim preclusion resulting from a final judgment with a common law doctrine of

‘claim-splitting’” and that the cases cited by MaineHealth “have no bearing here

because [Sargent I] has no final judgment.” Id. Alternatively, Ms. Sargent contends

that the Court should look to “[n]ormal principles of res judicata” which “do not

warrant dismissal of the instant action in the absence of a final judgment, especially

where [she] advocates for a continued stay in Sargent I to avoid duplicative litigation

or inconsistent outcomes.” Id. at 11.

Finally, Ms. Sargent argues that other employees’ potential involvement in

Sargent II should change the claim preclusion analysis. Ms. Sargent distinguishes

this case from Airframe Systems v. Raytheon Co., 601 F.3d 9 (1st Cir. 2010), because

she is representing a larger class of plaintiffs as part of a class action. She submits

that because this case could potentially involve 22,000 current employees and tens of

thousands of former employees going back six years, “[t]he universe of potential class

members in Sargent II, compared to the lone plaintiff in Sargent I, renders

Defendant’s claim-splitting argument meritless.” Id. at 14.

C. MaineHealth’s Reply

MaineHealth contests Ms. Sargent’s assertion that she lacked information to

support her FMLA claim until Ms. Bachand’s deposition in December 2021. Def.’s

Reply at 2. Specifically, MaineHealth asserts that Ms. Bachand only testified that

she did not know whether NorDx did or did not provide Ms. Sargent with a copy of

her FMLA rights because the requirement to do so did not fall within her job

responsibilities. Id. As a result, MaineHealth asserts Ms. Sargent would not have

good cause to amend her complaint in Sargent I. Id.

According to MaineHealth, Ms. Sargent conceded that Sargent II is duplicative

and advanced no valid argument against its dismissal. Id. at 3. In fact, MaineHealth

advances that the “Plaintiff’s arguments [to stay Sargent I while she pursues

discovery and class certification in Sargent II] are contrary to settled law and reflect

an extraordinary disregard for the equitable considerations underpinning the claim

splitting doctrine.” Id. It reiterates that “[c]laim splitting is . . . improper in the First

Circuit as it is in every other jurisdiction,” noting that “the First Circuit has found

that a defendant who fails to object to claim splitting during the pendency of the first

filed action will be deemed to have waived res judicata as a defense to the second

action.” Id.

Furthermore, MaineHealth submits that “Sargent II’s status as a putative

class action is immaterial because the only named plaintiff’s claims are barred by the

claim splitting doctrine.” Id. at 4. It says that Ms. Sargent “misperceives the issue”

because “[t]he question is not whether the ‘thousands’ of unnamed putative class

members have split their claims, but whether the named plaintiff has.” Id.

MaineHealth reasons that the Sargent II “claims are not suitable for class treatment,

which contributes to questions about Plaintiff’s motive” as “[t]he United States

Supreme Court has very clearly held that . . . claims [alleging unlawful application of

FMLA policies by individual managers] are not appropriate for class action

treatment.” Id. (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)).

Although MaineHealth admits that “the Court has broad discretion here,” it

submits that “permitting [the] Plaintiff to proceed with Sargent II while staying

Sargent I would be an abuse of that discretion.” Id. at 5. It says that “[s]ubordinating

the first-filed case over the objection of the defendant and permitting the second-filed

case to proceed is notably absent from the list of discretionary options available to the

Court.” Id. MaineHealth concludes by reiterating that “[d]ismissal of Sargent II with

prejudice is not only warranted, [but] is necessary to protect Defendant from legal

prejudice” and that no option other than dismissal with prejudice “simultaneously

protect[s] Defendant’s interests and further[s] the policies behind the claim splitting

prohibition.” Id. at 6. It contends that “[c]onsolidation is patently inappropriate

insofar as it would have the effect of granting Plaintiff an end run around the

Scheduling Order in Sargent I and obviate the need for Plaintiff to demonstrate good

cause for late amendment in that case.” Id. As to its request that the Court dismiss

Sargent II with prejudice, MaineHealth submits that dismissal without prejudice

“would be the most prejudicial result here because it would enable Plaintiff to refile

in state court, asserting only state law claims and depriving Defendant of a valid

claim splitting defense.” Id. at 7.

IV. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(c) “a party may move for

judgment on the pleadings” any time “[a]fter the pleadings are closed—but early

enough not to delay trial.” FED. R. CIV. P. 12(c). “A Rule 12(c) motion is ‘ordinarily

accorded much the same treatment’ as a Rule 12(b)(6) motion; the ‘modest difference’

is that, unlike a Rule 12(b)(6) motion, a Rule 12(c) motion ‘implicates the pleadings

as a whole.’” Musto v. Liberty Ins. Corp., No. 1:20-cv-00188-GZS, 2020 U.S. Dist.

LEXIS 229194, at *1 (D. Me. Dec. 7, 2020) (quoting Aponte-Torres v. Univ. of P.R.,

445 F.3d 50, 54-55 (1st Cir. 2006)). Thus, to survive dismissal on a Rule 12(c) motion,

“the plaintiff must have alleged sufficient factual matter in the pleadings ‘to state a

claim to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks omitted)); see also Rios-Campbell v. United

States DOC, 927 F.3d 21, 24 (1st Cir. 2019) (“If a motion for judgment on the pleadings

. . . is employed as a vehicle to test the plausibility of a complaint, the Rule 12(b)(6)

plausibility standard may again come front and center” (alterations in Rios-

Campbell) (internal quotation marks omitted) (quoting Grajales v. P.R. Ports Auth.,

682 F.3d 40, 44 (1st Cir. 2012))).

“Because [a Rule 12(c)] motion calls for an assessment of the merits of the case

at an embryonic stage, the court must view the facts contained in the pleadings in

the light most favorable to the nonmovant and draw all reasonable inferences

therefrom.” Collins v. Me. State Prison Warden, No. 1:18-cv-00435-NT, 2019 U.S.

Dist. LEXIS 53748, at *3 (D. Me. Mar. 29, 2019) (internal quotation marks omitted)

(alterations in Collins) (quoting R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182

(1st Cir. 2006)). “Like Rule 12(b)(6), Rule 12(c) does not allow for any resolution of

contested facts; rather, a court may enter judgment on the pleadings only if the

uncontested and properly considered facts conclusively establish the movant’s

entitlement to a favorable judgment.” Musto, 2020 U.S. Dist. LEXIS 229194, at *2

(quoting ACA Connects – Am.’s Commc’ns Ass’n v. Frey, 471 F. Supp. 3d 318, 323 (D.

Me. 2020)).

V. DISCUSSION

As a general principle “[a] litigant with multiple related claims must not

separate, or split, the claims into multiple, successive cases, but must include in the

first action all of the claims that fall within the Court’s jurisdiction.” Perry v.

Alexander, No. 2:15-cv-00310-JCN, 2017 U.S. Dist. LEXIS 112019, at *7-8 (D. Me.

July 19, 2017) (citing Kale v. Combined Ins. Co. of Am., 924 F.2d 1161, 1165 (1st Cir.

1991)). Undergirding this rule is the principle that “[b]y spreading claims around in

multiple lawsuits . . . parties waste ‘scarce judicial resources’ and undermine ‘the

efficient and comprehensive disposition of cases.’” Katz v. Gerardi, 655 F.3d 1212,

1217 (10th Cir. 2011) (quoting Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp.,

296 F.3d 982, 985 (10th Cir. 2002)).

Whether an action is duplicative of another turns on whether the “claims,

parties, and available relief do not significantly differ between the two actions.”

Carey v. Hillsborough Cnty. Dep’t of Corr., No. 05-cv-442-PB, 2006 U.S. Dist. LEXIS

23515, at *7 (D.N.H. Mar. 6, 2006) (quoting Serlin v. Arthur Andersen & Co., 3 F.3d

221, 223 (7th Cir. 1993)). Courts apply res judicata principles, although “the claim-

splitting doctrine does not fall within a conventional res judicata analysis.”6 Katz,

655 F.3d at 1218 (discussing the differences between claim splitting and res judicata);

see also Scholz v. United States, 18 F.4th 941, 952 (7th Cir. 2021) (“Thus, to determine

whether the district court correctly dismissed this case on claim-splitting grounds,

we must draw on principles of claim preclusion, although continuing to appreciate

the differences between the doctrines”); Hartsel, 296 F.3d at 986 (“[M]ore recent cases

analyze claim-splitting as an aspect of res judicata”).

“While claim-splitting and res judicata both promote judicial economy and

shield parties from vexatious and duplicative litigation, claim splitting is more

concerned with the district court’s comprehensive management of its docket, whereas

res judicata focuses on protecting finality of judgments.” Perry, 2017 U.S. Dist.

LEXIS 112019, at *8 (quoting Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833 (11th

Cir. 2017) (internal quotation marks omitted)). District courts are, accordingly, given

“‘a great deal of latitude and discretion’ in determining whether one action is

6 Ms. Sargent contends that the “Defendant conflates the concept of claim preclusion resulting

from a final judgment with a common law doctrine of ‘claim-splitting’” and that the First Circuit

caselaw “analyz[ing] the elements of claim preclusion . . . ha[s] no bearing here because [there is] no

final judgment.” Pl.’s Opp’n at 8. The Court disagrees. This District and other courts have

consistently relied on res judicata/claim preclusion concepts in analyzing claim splitting issues and

have rejected arguments similar to those brought by Ms. Sargent. See Katz, 655 F.3d at 1218 (“Infinity

claims that there can be no claim splitting as long as there is no final judgment in the[ir] other case.

We disagree. While it is correct that a final judgment is necessary for traditional claim preclusion

analysis, it is not required for the purposes of claim splitting”); Perry, 2017 U.S. Dist. LEXIS 112019,

at *8 (“In the claim-splitting analysis, the test is whether the first suit, assuming it were final, would

preclude the second suit” (internal quotation marks omitted) (citation omitted)).

Moreover, the First Circuit described the claim-splitting doctrine as “one application of the

general doctrine of res judicata.” Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849,

852 (1st Cir. 1947). Given the intersection of claim preclusion and claim splitting, it is proper for the

Court to rely on First Circuit claim preclusion precedent for guidance in applying the “same parties”

and “same action” prongs of the claim splitting test. Finally, circuit courts have reversed trial courts

that failed to apply the appropriate prongs of the res judicata analysis in such cases. See, e.g., Hartsel,

296 F.3d at 987 (“The district court erred by applying the claim-splitting prohibition without requiring

identity or privity between parties”).

duplicative of another.” Carey, 2006 U.S. Dist. LEXIS 23515 at *7 (quoting Serlin, 3

F.3d at 223); see also Colo. River Water Conservation Dist. v. United States, 424 U.S.

800, 817 (1976) (“As between federal district courts . . . [although] no precise rule has

evolved, the general principle is to avoid duplicative litigation”); Katz, 655 F.3d at

1217.

Typically, res judicata requires the following test: (1) a valid final judgment in

the first suit; (2) the same parties; and (3) the same cause of action. Hatch v. Trail

King Indus., 699 F.3d 38, 45 (1st Cir. 2012). Unlike res judicata, claim splitting

“applies where the second suit . . . has been filed before the first suit has reached a

final judgment.” Laccinole v. Diversified Consultants, Inc., No. 1:19-CV-00149-MSM-

LDA, 2020 U.S. Dist. LEXIS 65173, at *6 (D.R.I. Apr. 14, 2020). Thus, the test for

claim splitting “is whether the first suit, assuming it were final, would preclude the

second suit.” Perry, 2017 U.S. Dist. LEXIS 112019, at *8 (quoting Klane v. Mayhew,

No. 1:12-cv-203-NT, 2013 U.S. Dist. LEXIS 42053, at *5 (D. Me. Mar. 26, 2013)); see

also Scholz, 18 F.4th at 952; Katz, 655 F.3d at 1218 (“It is clear that a motion to

dismiss based on improper claim-splitting need not—indeed, often cannot—wait until

the first suit reaches final judgment”); WRIGHT, ARTHUR R. MILLER & EDWARD H.

COOPER, FEDERAL PRACTICE & PROCEDURE § 4406 (3d ed. 2022) (WRIGHT & MILLER)

(“In dealing with simultaneous actions on related theories, courts at times express

principles of ‘claim splitting’ that are similar to claim preclusion, but that do not

require a prior judgment”). Against this framework, courts recognize that “multiple

federal filings do not lend themselves to a rigid test, but require instead that the

district court consider the equities of the situation when exercising its discretion.”

Curtis, 226 F.3d at 138.

In accordance with the above principles, the Court considers: (1) the

“identicality between the causes of action asserted in” Sargent I and Sargent II and

(2) the “identicality between the parties in the two actions.” Hatch, 699 F.3d at 45.7

Finally, the Court considers issues of equity to determine whether either party will

be unfairly prejudiced.

A. Identicality of the Causes of Action

The First Circuit adopts the “transactional approach to determine whether

causes of action are sufficiently related to support a res judicata defense.” Mass. Sch.

of L. v. Am. Bar Ass’n, 142 F.3d 26, 38 (1st Cir. 1998). The Court accordingly applies

the First Circuit’s transactional approach to this portion of its claim-splitting

analysis.

“Under this approach, a cause of action is defined as a set of facts which can be

characterized as a single transaction or series of related transactions.” Id. (quoting

Apparel Art Int’l, Inc. v. Amertex Enters., Ltd., 48 F.3d 576, 583 (1st Cir. 1995)). The

analysis “boils down to whether the causes of action arise out of a common nucleus of

operative facts,” id., based on “factors such as ‘whether the facts are related in time,

space, origin, or motivation,’ ‘whether they form a convenient trial unit,’ and whether

7 Although Ms. Sargent contends that “Hatch has no precedential effect here” because “the First

Circuit’s dismissal in Hatch was based on claim preclusion because of a final judgment, which the

plaintiff opted not to appeal,” Pl.’s Opp’n at 11, the Court disagrees. As discussed in the previous

footnote, because claim preclusion and claim splitting are interrelated, it is proper for this Court to

rely on First Circuit claim preclusion precedent in applying the second two claim preclusion prongs as

typically included in the claim-splitting analysis.

treating them as a unit ‘conforms to the parties’ expectations.’” Gladu v. Correct Care

Sols., No. 2:17-cv-00504-JAW, 2019 U.S. Dist. LEXIS 183228, at *19 (D. Me. Oct. 23,

2019) (quoting Airframe Sys., 601 F.3d at 14).

To begin, the Court notes that it is immaterial that Ms. Sargent brought

Sargent II under a different legal theory (FMLA) than in Sargent I (disability

discrimination). As other judges in this District have noted, the requirement that the

cause of action be “identical” is a “red herring,” as identicality is based on the

similarity of the underlying factual disputes, rather than whether the two causes of

action are the same. Webb v. Calais Reg’l Hosp., No. 1:21-cv-00261-LEW, 2022 U.S.

Dist. LEXIS 10654, at *6 (D. Me. Jan. 20, 2022) (explaining that the identicality test

aims to prevent gamesmanship by requiring plaintiffs to bring all their related claims

in a single action). Indeed, if a litigant initiated one lawsuit and later initiated a

second based on precisely the same legal theories, a dismissal based on claim splitting

would seem a foregone conclusion.

Here, Sargent I and Sargent II share a common nucleus of operative fact even

though Ms. Sargent alleges some new facts and a new cause of action in Sargent II.

See id. at *7 (concluding that a second case was “functionally identical” to the first

case even though the “[p]laintiff . . . [came] before the court with additional facts and

new legal theories as to why she may recover under law” because “the factual nucleus

of [the] case remain[ed] the same”). In Webb v. Calais Regional Hospital, the district

court determined that both the plaintiff’s cases related to the same “series of

occurrences” surrounding a patient’s stillbirth in 2014, “the Hospital’s protracted

investigation into mistakes leading up to that incident, and the Hospital’s ultimate

decision to terminate Plaintiff’s employment.” Id. The same is true here.

First, both Sargent I and Sargent II center on the time period in early 2019

leading up to Ms. Sargent’s termination in May 2019. “The determinative question .

. . is not whether [Ms. Sargent] did previously raise claims relating to [NorDx’s]

alleged [FMLA retaliation], but whether she ‘could have’ done so.” Id. at *7-8

(emphasis in Webb) (quoting Haag v. United States, 589 F.3d 43, 46 (1st Cir. 2009)).

The shared time frame is important as the events that Ms. Sargent alleges in Sargent

II occurred before or concurrent with the events in Sargent I. In other words, this is

not a situation where Ms. Sargent could not have brought the claims alleged in

Sargent II earlier because they occurred after Sargent I was filed. See, e.g., Hobbs v.

Dart, No. 20 C 6513, 2021 U.S. Dist. LEXIS 90641, at *11 (N.D. Ill. May 12, 2021)

(denying motion to dismiss based on claim splitting because the events at issue in the

second case did not occur until August 1, 2019, well after November 2017, when the

first case was filed and it would have been “extremely difficult” to amend the first

complaint). Moreover, it is of no matter that the events in Sargent II (January 2019)

began earlier than the events alleged in Sargent I (April 2019) as the time frames

need not line up exactly. Cf. Sutcliffe Storage, 162 F.2d at 852-53 (concluding that a

plaintiff improperly split claims by filing three different cases involving three

successive years of leases of the same property).

Ms. Sargent contends that “[a]side from one line of text buried in nearly two

thousand pages . . . [she] had very little information about the basis for an FMLA

claim until the deposition stage” of Sargent I and “[i]t was only after counsel sat

through Plaintiff’s deposition, and then learned information the next day from Irina

Bachand, that the full extent of NorDx’s FMLA violations were realized.” Pl.’s Opp’n

at 4. This argument is unpersuasive. In Fernandes v. Quarry Hill Assocs., L.P., No.

09-11912-JGD, 2010 U.S. Dist. LEXIS 136884 (D. Mass. Dec. 28, 2010), the plaintiffs

similarly asserted that “they should not be precluded from pursuing their federal

claims for overtime pay because those claims were not in existence at the time they

filed their complaint.” Id. at *30. The district court for the District of Massachusetts

rejected this argument because all the facts that the plaintiff needed to establish her

claim occurred before the first suit was commenced. Id. The district court noted that

“as illustrated by the claims and allegations set forth in [the first] complaint, the

plaintiffs were fully aware of the fact that they had not been paid [for the work they

performed]” as alleged in their subsequent suit. Id.

Just as the plaintiffs in Fernandes had all the information necessary to bring

their additional claims earlier, based on the Sargent II Complaint, Ms. Sargent was

similarly fully aware of all facts necessary to bring an FMLA claim prior to the

depositions in December 2021. This is further supported by Ms. Sargent’s own

statement that she “did intend to amend [to] add a claim under the FMLA” which is

why she decided to ask Ms. Bachand questions regarding the FMLA in the deposition

in the first place. Pl.’s Opp’n at 3. Furthermore, as emphasized in Fernandes and

noted earlier, all the facts that Ms. Sargent alleges in Sargent II underlying her

FMLA claim occurred prior to her filing of Sargent I. Finally, Ms. Sargent admits

she was aware, through her own personal knowledge and experience, that she had

not been informed of her FMLA rights and responsibilities prior to her 2019

termination. Based on her claims and relevant time periods of the alleged illegal

conduct, the Court finds that Ms. Sargent could have alleged her disability

discrimination and FMLA claims in the same action, even though she decided not to

do so.

Second, both cases involve the same employment relationship between Ms.

Sargent and NorDx and both causes of action seek relief for the same wrong (Ms.

Sargent’s alleged improper termination) albeit on different legal grounds.

Importantly, the actors and events in Sargent I and Sargent II overlap. For example,

in Sargent II, Ms. Sargent directly references NorDx’s efforts to relocate her because

of her teeth as part of NorDx’s intensified efforts to find grounds for terminating her

employment due to her FMLA utilization. This allegation is at the heart of Sargent

I. Additionally, in both cases Ms. Sargent refers to Ms. Bachand’s and Ms. Christie’s

ultimate decision to terminate her employment as being the same in both cases. Ms.

Sargent makes no effort to differentiate her two cases on factual grounds and instead

acknowledges that she “pleads [Sargent II] in the alternative” to her prior disability

discrimination suit. Sargent II Compl. ¶ 83.

In sum, the Court concludes that Sargent I and Sargent II share a common

nucleus of operative facts and therefore are sufficiently “identical” theories of action

for purposes of the claim-splitting analysis.

B. Identicality of the Parties

In addition to presenting identical causes of action, the parties to Sargent I and

Sargent II must also be sufficiently identical. Res judicata, as applied in the claim-

splitting context, prohibits claim splitting by “parties to an original action and those

in privity with such parties.” Doe v. Urohealth Sys., 216 F.3d 157, 161 (1st Cir. 2000).

Generally “a ‘party’ to litigation is one by or against whom a lawsuit is brought.”

Smith v. Bayer Corp., 564 U.S. 299, 313 (2011) (cleaned up). “Under the concept of

privity, a non-party may be bound by a prior judgment if that party substantially

controlled or [is] represented by a party to the original action.” Urohealth Sys. at 162

(alteration in Uroheath) (quoting Com. Union Ins. Co. v. Pelchat, 727 A.2d 676, 680

(R.I. 1999)). To determine two parties’ privity, “courts often look to the commonality

of their interest in the matter” and whether “the companies are parent and wholly

owned subsidiary.” Id. However, a parent-subsidiary relationship does not

automatically establish privity. Id. Here, the Court considers whether MaineHealth

and NorDx are the same party or are in privity with one another.

In Doe v. Urohealth Systems, the First Circuit reversed the district court and

concluded that a subsidiary and its parent company were in privity with one another

for the purposes of the res judicata analysis. Id. The case involved a company that

designed and manufactured medical equipment, Dacomed, which was later acquired

by Urohealth, which subsequently manufactured and sold the medical products after

the acquisition. Id. at 159. The First Circuit concluded that Dacomed and Urohealth

were in privity because Urohealth took legal responsibility for Dacomed products and

actions, the parties shared an identical interest, and Dacomed was a wholly owned

subsidiary of Urohealth. Id. at 161-62. Other courts have also noted commonality of

counsel representing the two parties as suggestive of privity. See Sterling Equip.,

Inc. v. Gibson, No. 18-11230-RGS, 2019 U.S. Dist. LEXIS 111084, at *5 n.7 (D. Mass.

July 3, 2019).

Applying this framework, the Court concludes that NorDx and MaineHealth

are in privity and are thus the “same” party for purposes of this claim-splitting

analysis. First, NorDx is a wholly owned subsidiary of MaineHealth, as Ms. Sargent

alleges in her Sargent II Complaint. Sargent II Compl. ¶ 6. Beyond a mere “parent-

subsidiary” relationship, Ms. Sargent claims that “MaineHealth and NorDx were an

integrated enterprise and/or joint employer of [Ms. Sargent], because MaineHealth

and NorDx shared common management, ownership, direction and control,

administration of employee benefits, operations, employee health services, labor

counsel, and human resources.” Id. ¶ 9. Ms. Sargent also alleges that the same

employee, Ms. Christie, who she says decided to terminate her in Sargent I, made the

same decision in Sargent II. Compare Sargent I Compl. ¶ 17-18; with Sargent II

Compl. ¶ 78. Thus, there was substantial overlap between MaineHealth and NorDx

as demonstrated by the complex network of overlapping management and

administration and by Ms. Sargent’s account of the facts in both cases.

Second, because their supervisory and management structures are

interconnected, NorDx and MaineHealth share identical interests in resolving the

employment dispute with Ms. Sargent, especially as her allegations are based on the

same underlying circumstances, as discussed above. NorDx and MaineHealth’s

shared interest is further evidenced by the fact that both defendants are represented

by the same counsel. Moreover, there is nothing on the record that would suggest

that NorDx and MaineHealth have separate property holdings, or other

differentiating attributes that would overcome their identical interests, identical

boards of directors, and identical legal counsel. See Hartsel, 296 F.3d at 987.

C. Equitable Principles

Having concluded that the parties and claims in Sargent I and Sargent II are

identical, the Court next considers equitable factors including (1) the impact, if any,

of Sargent II’s status as a class action; and (2) the appropriate remedy.

1. Sargent II’s Status as a Class Action

First, the Court must determine whether Ms. Sargent’s status as a class

representative in Sargent II renders her a separate “party” for the purposes of the

claim-splitting analysis or renders the claim-splitting doctrine inapplicable. Ms.

Sargent argues that because Sargent II could involve tens of thousands of employees,

it is distinguishable from cases cited by MaineHealth outside of the class action

context. Pl.’s Opp’n at 12-13.

On this issue, some courts note that class actions are “exceptions” to the rule

against claim splitting in certain circumstances, although the parameters of this

exception remain unclear. See, e.g., Gooch v. Life Invs. Ins. Co. of Am., 672 F.3d 402,

428 n.16 (6th Cir. 2012) (holding that a class action presents a recognized exception

to the claim-splitting doctrine in circumstances where a putative class member later

seeks, for example, to pursue a damages claim that could not be advanced in the prior

action or was expressly excluded from the class action); Hebert v. MudTech Servs.,

No. 15cv0933, 2015 U.S. Dist. LEXIS 128164, at *13 (W.D. Pa. Sept. 23, 2015)

(“[W]hether the doctrine of claim splitting applies to class actions appears to be an

unsettled area of law”).

However, the Court need not address whether this area of law is or is not

settled, and, if settled, its parameters, based on the procedural posture of this case.

The class action exception to the claim-splitting doctrine typically arises when a party

bringing a lawsuit is already involved in a pending or resolved class action, in other

words, when the class action is the first lawsuit to be filed and where the party

opposing a claim-splitting defense is not the named representative of that class

action. See, e.g., Woodards v. Chipotle Mexican Grill, Inc., No. 14-4181 (SRN/SER),

2015 U.S. Dist. LEXIS 69606, at *2, 5-6 (D. Minn. Apr. 3, 2015) (involving a defendant

seeking to dismiss a class action lawsuit where the named plaintiff was involved in a

prior class action lawsuit, but not as the named representative); Greene v. H&R Block

E. Enters., Inc., No. 10-21663-CV-KING, 727 F. Supp. 2d 1363, 1367-68 (S.D. Fla.

2010) (granting dismissal where the class action at issue was brought subsequent to

a prior class action, which plaintiff had consented to join, brought by the same

attorneys, seeking the same relief, and based on the same factual scenario but

alleging a different cause of action).

In Hebert v. MudTech Services, 2015 U.S. Dist. LEXIS 128164, the court

dismissed without prejudice a suit naming the plaintiff as the lead representative in

a class action while he remained a party-plaintiff member in a second class action

suit involving the same underlying facts. Id. at *15-16. The Hebert Court recognized

that generally, class actions are an exception to the claim-splitting doctrine but

concluded that the plaintiff was “actively participating as a plaintiff in two cases”

involving attempts to “obtain overtime pay from his former employer.” Id. at *15.

The district court concluded that such a “blatant example of claim splitting” was

appropriately resolved under the “traditional Stark analysis” rather than a “class

adequacy” analysis. Id. at *15; see also Stark v. Starr, 94 U.S. 477, 485 (1876) (A

plaintiff is “not at liberty to split up his demand and prosecute it by piecemeal, or

present only a portion of the grounds upon which special relief is sought, and leave

the rest to be presented in a second suit, if the first fail”).

In this case, Ms. Sargent’s individual cause of action was filed first, followed

by the class action lawsuit. Moreover, Ms. Sargent is the named plaintiff in the class

action, not an unnamed party who merely signed on. The Court therefore does not

need to wait for resolution of class certification to determine whether Ms. Sargent is

a “party” for the purposes of the class-action litigation. Because Ms. Sargent is the

named representative of the class action, she is a party to Sargent II. Meridia Prods.

Liab. Litig. v. Abbott Lab’ys, 447 F.3d 861, 869 (6th Cir. 2006) (“Courts have held that

summary adjudication prior to class certification binds only the named plaintiffs”);

cf. Bowles v. Leprino Foods Co., No. 1:19-cv-00635-AWI-BAM, 2020 U.S. Dist. LEXIS

105114, at *10-11 (E.D. Cal. June 16, 2020) (deferring final resolution of a motion to

dismiss for claim splitting where the first class action lawsuit had not yet been

certified and it was thus unclear whether the plaintiff in the second action (who was

not a named plaintiff in the first) was a “party” to the prior lawsuit for the purposes

of the claim-splitting doctrine); Waldron v. George Weston Bakeries Distrib., 477 F.

Supp. 2d 295, 297-98 (D. Me. 2007) (stating that there was “no question with respect

to the third element” (identicality of the parties) because the plaintiffs in the second

suit were named plaintiffs in the first suit, which was a class action).

Just as the Hebert Court characterized a plaintiff as “actively pursuing [a]

matter as the lead representative on behalf of a putative class” while a “party-plaintiff

member of a class in [separate] litigation” as a “blatant example of claim splitting,”

Hebert, 2015 U.S. Dist. LEXIS 128164, at *15, the Court concludes that Ms. Sargent

is pursuing two separate cases in both Sargent I and Sargent II, both individually

and as a named representative. This is further supported by Sargent II’s recitation

of the facts underlying both cases which, as discussed above, the Court concluded

share a common nucleus of operative facts. Ms. Sargent is therefore not shielded by

her representative status in this class action lawsuit.

Finally, the Court agrees with MaineHealth that “[t]he question is not whether

the ‘thousands’ of unnamed putative class members have split their claims, but

whether the named plaintiff has.” Def.’s Reply at 4. Claim splitting and res judicata

require a party-by-party analysis and in this case, it is Ms. Sargent’s claims at issue,

not those of the other unnamed plaintiffs, who are, for the purposes of claim splitting

and res judicata, not yet plaintiffs. See Sparks v. Children’s Place, No. 17-1057, 2017

U.S. Dist. LEXIS 173896, at *4 (E.D. Pa. Oct. 19, 2017) (“Of course, the fact that other

potential class members are not splitting their claims, however, does not change the

fact that the Named Plaintiffs are”). A contrary conclusion would be inapposite, as it

would allow parties to bypass equitable principles of claim splitting by filing class

action lawsuits. Furthermore, this conclusion “does not bar other avenues of

recovery. . .. Plaintiffs will therefore retain the ability to pursue individual action if

they are so inclined, so long as any action complies with procedural safeguards and

limitations.” Greene, 727 F. Supp. 2d at 1368; see also Wright v. Schock, 742 F.2d

541, 544 (9th Cir. 1984) (“[D]efendants have prevailed only against the named

plaintiffs. The judgment will not be res judicata as to other individual plaintiffs or

other members of any class that may be certified. These individuals or class members

remain free to assert any claims they may have against the . . . defendants”). Thus,

to the extent that other potential members of the employee class wish to pursue the

FMLA claim, they are not prohibited from doing so. However, Ms. Sargent may not

pursue two separate cases that share a common nucleus of facts.

2. The Remedy

Now that the Court has determined that Ms. Sargent improperly split her

claims, it must decide what to do with Sargent I and Sargent II. “When claim splitting

occurs, ‘a court may stay the second suit, dismiss it without prejudice, enjoin the

parties from proceeding with it, or consolidate the two actions.’” Perry, 2017 U.S.

Dist. LEXIS 112019, at *8 (quoting Coleman v. B.G. Sulzle, Inc., 402 F. Supp. 2d 403,

421 (N.D.N.Y. 2005) (internal quotation marks omitted)).

MaineHealth argues that consolidation would be inappropriate and that

dismissal without prejudice would be the most prejudicial result because it would

allow Ms. Sargent to refile her claim in state court. Def.’s Reply at 7. Alternatively,

Ms. Sargent urges the Court to continue the stay of Sargent I and allow Sargent II to

proceed with discovery because it “presents a far broader and more complex piece of

litigation.” Pl.’s Opp’n at 5-6.

First, the Court agrees that consolidation would be inappropriate here because

it would allow Ms. Sargent to bring her Sargent II Complaint without having to seek

leave to amend, which would be inconsistent with Federal Rules of Civil Procedure

15 and 16. It would further give Ms. Sargent an end-run around the Court’s

scheduling order. See Geary v. Stanley, 2007 ME 133, ¶ 16, 931 A.2d 1064 (affirming

the trial court’s judgment because it “could have reasonably concluded that allowing

[plaintiff] to proceed with the second action would enable her to circumvent the

pretrial order and procedural rules”).

Second, the Court is not convinced by Ms. Sargent’s argument that staying

Sargent I would be the best course of action. Although “absent a statute or rule to

the contrary, federal district courts possess the inherent power to stay pending

litigation when the efficacious management of court dockets reasonably requires such

intervention[,] . . . stays cannot be cavalierly dispensed: there must be good cause for

their issuance; they must be reasonable in duration; and the court must ensure that

competing equities are weighed and balanced.” Marquis v. Fed. Deposit. Ins. Corp.,

965 F.2d 1148, 1154-55 (1st Cir. 1992)). Ms. Sargent’s argument that Sargent II

should proceed, and Sargent I should be stayed because Sargent II is broader in scope

as a class action lawsuit does not rise to the level of “good cause.” Ms. Sargent has

not persuasively argued why the Court should stay Sargent I instead of Sargent II,

nor has she cited any caselaw supporting this contention. Moreover, staying Sargent

I would allow Ms. Sargent to circumvent her strategic choices in that suit, contrary

to First Circuit principles. See Hatch, 699 F.3d at 45 (“It is axiomatic that claim

preclusion doctrine [and claim splitting] requires a party to live with its strategic

choices” (alterations and internal quotation marks omitted)).

Moreover, Ms. Sargent’s argument that Sargent I should be stayed instead of

Sargent II is unpersuasive given that Sargent I was the first case to be filed in this

court, has been pending since December 15, 2020, and discovery is substantially

complete.8 Ms. Sargent’s justification that she would have met the Rule 16(b) “good

cause” standard for amending her Complaint in Sargent I is immaterial as such a

motion is not currently before the Court, and Ms. Sargent has not cited caselaw to

support a conclusion that “good cause” to amend may be used to rebut a claim-

splitting defense. Finally, “one of the principal purposes of the rule against claim

splitting is ‘to protect[] the defendant from the necessity of litigating similar claims

in separate actions.” Fernandes, 2010 U.S. Dist. LEXIS 136884, at *33-34 (internal

quotation marks omitted). Staying Sargent II would still subject MaineHealth “to

the costs and uncertainties associated with multiple lawsuits.” Id. at *34. Moreover,

as previously discussed, there is no need to stay either case pending class certification

because Ms. Sargent is a named plaintiff in the class action; her party status does not

hinge on certification. The Court therefore declines to stay Sargent I beyond the

resolution of this motion.

8 As mentioned previously, the discovery deadline for Sargent I was January 10, 2022, which

Ms. Sargent sought to extend. Sargent I, Pl.’s Mot. to Amend Scheduled Order (ECF No. 14).

Regardless of the outcome of Ms. Sargent’s motion to amend, several depositions have already been

completed and documents exchanged in Sargent I.

The Court similarly declines to stay Sargent II pending resolution of Sargent

I. Such a stay would be inapposite with the articulated claim-splitting principles,

which courts developed in order to avoid having to stay a case pending the final

judgment in a prior case.

Ultimately, the Court concludes that dismissal of Sargent II without prejudice

is the more equitable solution. Such an outcome is consistent with equitable

principles designed to avoid unnecessarily burdening the defendant, while still

enabling Ms. Sargent to litigate her FMLA claim by filing a motion for leave to amend

her Sargent I Complaint.9 Nor does this outcome prejudice other potential members

of the class action. As discussed above, this order in no way restricts other potential

members of the putative class from bringing their own claims against NorDx and/or

MaineHealth for FMLA retaliation. See Greene, 727 F. Supp.2d at 1368. Although

NorDx is concerned about Ms. Sargent reinitiating the second lawsuit in state court,

the Court concludes that if that were to happen, the state court, not this Court, should

determine whether Ms. Sargent should be allowed to proceed in state court. Finally,

the Court is concerned about the potentially overlapping impact of the dismissal with

prejudice of the second lawsuit and what impact, if any, a with prejudice dismissal

should have on the first lawsuit. In the Court’s view, the first lawsuit should proceed

on its own merits.

9 Although Ms. Sargent incorporates arguments on the “good cause” standard for a motion to

amend, such a motion is not before the Court. Ms. Sargent is free to file a motion for leave to amend

her complaint in Sargent I, but the Court does not speak to the success of such a motion at this time.

VI. CONCLUSION

The Court GRANTS MaineHealth’s Motion for Judgment on the Pleadings, No.

2:22-cv-00006-JAW (ECF No. 6), and DISMISSES without prejudice Monique

Sargent’s Complaint in Sargent II, No. 2:22-cv-00006-JAW (ECF No. 1).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 14th day of June, 2022