source: Caselaw Access Project

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    UNITED STATES of America and the State of Wisconsin, EX REL. Rose PRESSER, Plaintiff-Appellant, v. ACACIA MENTAL HEALTH CLINIC, LLC, and Abe Freund, Defendants-Appellees.
    No. 14-2804
    United States Court of Appeals, Seventh Circuit.
    Argued April 6, 2016
    Decided September 1, 2016

      Kathryn A. Keppel, Patrick J. Knight, Attorneys, Gimbel, Reilly, Guerin & Brown LLP, Milwaukee, WI, for Plaintiff-Appellant Rose Presser.
    Stacy C. Gerber Ward, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff United States of America.
    Thomas L. Storm, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Plaintiff State of Wisconsin.
    Patrick Coffey, Andrew A. Jones, Attorneys, Husch Blackwell LLP, Milwaukee, WI, for Defendants-Appellees.
    Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
   RIPPLE, Circuit Judge.

Relator and plaintiff Rose Presser filed a qui tam action under the False Claims Act, 31 U.S.C. § 3729 et seq. (“FCA”), and its Wisconsin analog, the Wisconsin False Claims Act, Wis. Stat. § 20.931 et seq. (“WFCA”), on behalf of the United States and the State of Wisconsin against defendants Acacia Mental Health Clinic, LLC (“Acacia”) and Abe Freund, the principal owner of Acacia. Ms. Presser alleges that Acacia and Mr. Freund engaged in “upcod-ing,” provided unnecessary medical procedures, and then charged the federal and state governments for those expenses. The district court granted the defendants’ motion to dismiss the complaint for failure to state a claim of fraud with particularity as required by Federal Rule of Civil Procedure 9(b). We affirm that judgment except as it relates to the claims against both defendants regarding the use of an improper billing code. We hold that Ms. Presser has stated those allegations with sufficient particularity and therefore reverse the district court’s judgment on those claims and remand for further proceedings.

I

BACKGROUND

A. Facts

Ms. Presser has twenty years of experience working as both a nurse and a nurse practitioner in the State of Wisconsin. In October 2011, Ms. Presser began working with Acacia as an independent contractor nurse practitioner. She provided psychiatric evaluations, managed patient medication, and provided other medical services. In her complaint, Ms. Presser alleges that Acacia was engaged in the following practices and policies.

First, Acacia mandated that patients be assessed by a minimum of four different individuals before they were provided with medication. Patients were required to see a receptionist, a medical nurse practitioner (who could not conduct medical examinations but did provide acupuncture and similar treatments), a psychotherapist, and then a nurse practitioner. Patients incurred separate charges for each of these four steps. Ms. Presser alleges that, “[biased on [her] years of experience and training, Acacia’s four-step policy was not medically necessary.”

Second, the clinic manager directed Ms. Presser to utilize American Medical Association Current Procedural Terminology code 90801 when billing her assessments. The receptionist and the medical nurse practitioner used this same billing code for their encounters with the patient. This “code is applied to ... a full psychological assessment by a therapist (or therapist in training), or a psychiatric medical evaluation by a psychiatrist or psychiatric nurse practitioner,'the type of assessment [Ms.] Presser was expressly told to discontinue conducting.” Ms. Presser asked the clinic manager why billing code 90801 was being used by receptionists, medical nurse practitioners, and nurse practitioners. The clinic manager shrugged his shoulders in-response.

Third, patients were required to undergo a mandatory urine drug screening during each visit. Each of these screenings was billed. The clinic manager told Ms. Presser that the tests allowed Acacia to determine whether patients were taking their medication. Ms. Presser alleges, “[b]ased on her personal knowledge and experience,” that “the policy made no sense as the screenings would not establish when the patients took their medications and whether they were taking them at the proper times.”

Fourth, both Mr. Freund and the clinic director told the clinic staff that patients were required to come to the clinic in person in order to obtain a prescription refill or to speak with a physician. Patients regularly told Ms. Presser that they had called to speak with her over the phone, but were told by the receptionist that they needed to come to Acacia in person. If a patient missed an appointment or was not seen for a period as short as thirty days, he or she was discharged and would need to restart the assessment process. Before obtaining a new prescription, patients were required to see a psychotherapist at the clinic. Patients were billed for these encounters. “Based on [Ms.] Presser’s years of experience and training,” Ms. Presser alleges that these prescription refill and appointment policies “were medically unnecessary.”

In her complaint, Ms. Presser provided examples of what she believed to be “unnecessary medical billings.” John Doe 1 and Jane Doe 2 saw Ms. Presser for treatment of anxiety disorders during Ms. Presser’s previous tenure at Aurora Behavioral Health. In her “clinical judgment,” neither patient was an “appropriate candidate for psychotherapy.” Ms. Presser had similar opinions about John Doe 2 and Jane Doe 1, whom she also saw for medication. The clinic manager and Mr. Freund nonetheless directed that all four individuals undergo the assessment process established by Acacia, which included psychotherapy.

Before Ms. Presser began working at Acacia, Mr. Freund told her “that Acacia could take all insurance.” Mr. “Freund also told [Ms.] Presser that almost all of Acacia’s patients were ‘on Title 19.’ ” According to the amended complaint:

Based on those discussions, as well as her experience at other clinics, she knew that Acacia submitted bills to individual patients, to private insurers, and to Medicare and Medicaid programs run by the United States and the State of Wisconsin for services provided to patients, subject to them individual circumstances. She also knew those bills were based on services provided to patients, as coded by Acacia staff, in accordance with Acacia’s mandatory policies and procedures discussed above.[]

Ms. Presser calculated what she believed to be the appropriate annual revenue for Acacia, “[b]ased on her experience and her knowledge of the patient volume and activity at Acacia.” Actual revenue for 2011 was double Ms. Presser’s calculation.

Ms. Presser and other clinicians questioned the efficacy of the aforementioned procedures, but the clinic director told them that “[t]his is how Abe [Freund] wants it.” When Ms. Presser sent emails that questioned procedures, Mr. Freund would respond, even when those emails were not addressed to him. He also had cameras in the office and could monitor the treatment being provided. According to the complaint, he therefore “knew that Acacia was billing Medicare and Medicaid for all services provided by the staff at Acacia, including services that Acacia’s clinical staff told him were not medically necessary or contrary to protocols and procedures established by Medicare and/or Medicaid.” He nevertheless continued to direct staff to comply with these policies.

B. Earlier Proceedings

Ms. Presser filed a qui tam complaint on January 18, 2013, under the FCA and the WFCA on behalf of the United States and the State of Wisconsin against Acacia and Mr. Freund. She alleged that they had submitted fraudulent medical bills to the federal and state governments for payment.

Acacia and Mr. Freund moved to dismiss the complaint on December 18, 2013, contending that Ms. Presser had not pleaded a single claim with sufficient particularity. Ms. Presser then moved to amend her complaint. The district court granted that motion and ordered Ms. Presser to “mak[e] any and all improvements she deems appropriate; no further leave to amend will be granted.” Ms. Presser subsequently filed an amended complaint.

Acacia and Mr. Freund moved to dismiss the amended complaint on April 11, 2014. They contended that Ms. Presser had failed to plead the FCA and WFCA claims with sufficient particularity, as required by Federal Rule of Civil Procedure 9(b), and had failed to state any claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted the defendants’ motion on July 15, 2014. The court noted that Ms. Presser had “failfed] to identify with specificity to whom bills for Acacia’s services were allegedly presented.” The court also held that, at most, the complaint discussed how Acacia submitted bills to patients, insurers, and Medicaid programs “subject to their individual circumstances.” In the view of the court, Ms. “Presser does not even definitively allege that at least one patient’s bill was submitted to the United States or the State of Wisconsin.” The district court concluded that none of Ms. Presser’s claims could survive a motion to dismiss.

The court also declined to grant Ms. Presser leave to amend her complaint. It noted that Ms. Presser already had been given the opportunity to file an amended complaint and concluded that the defendants would be prejudiced by the unresolved allegations of fraud. Ms. Presser now timely appeals.

II

DISCUSSION

“The FCA is an anti-fraud statute and claims under it are subject to the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure.” United States ex rel. Gross v. AIDS Research All-Chi, 415 F.3d 601, 604 (7th Cir. 2005). We review de novo a district court’s decision to dismiss a complaint for failing to satisfy the requirements of Rule 9(b). AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011).

Drawing on the Supreme Court’s holdings in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), we have made clear that the pleading standards under Rule 8 and Rule 9 remain distinct. Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010); see also Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736-37 (7th Cir. 2014). Under Rule 8, a plaintiff only needs to “give enough details about the subject-matter of the case to present a story that holds together.” Swanson, 614 F.3d at 404. Alternatively, under Rule 9(b), a plaintiff “alleging fraud or mistake ... must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). A plaintiff ordinarily must describe the “who, what, when, where, and how” of the fraud' — “the first paragraph of any newspaper story.” United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 853 (7th Cir. 2009) (internal quotation marks omitted).

While applying this shorthand to describe the requirements of Rule 9, we also have warned that “courts and litigants often erroneously take an overly rigid view of the formulation” and that the precise details that must be included in a complaint “may vary on the facts of a given case.” Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 442 (7th Cir. 2011). Nevertheless, plaintiffs must “use some ... means of injecting precision and some measure of substantiation into their allegations of fraud.” 2 James Wm. Moore et al., Moore’s Federal Practice § 9.03[1][b], at 9-22 (3d ed. 2015); see also Pirelli, 631 F.3d at 442.

Rule 9 requires heightened pleading standards because of the stigmatic injury that potentially results from allegations of fraud. United States ex rel. Bogina v. Medline Indus., Inc., 809 F.3d 365, 370 (7th Cir. 2016). “[A] public accusation of fraud can do great damage to a firm before the firm is (if the accusation [is] prove[d] baseless) exonerated in litigation ... .” United States ex rel. Grenadyor v. Ukrainian Vill. Pharmacy, Inc., 772 F.3d 1102, 1105 (7th Cir. 2014). We have observed, moreover, that “fraud is frequently charged irresponsibly by people who have suffered a loss and want to find someone to blame for it.” Ackerman v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999). If discovery is allowed to proceed, a defendant well may face a long period of time where it stands accused of fraud,

placing what may be undue pressure on the defendant to settle the case in order to lift the cloud on its reputation. The requirement that fraud be pleaded with particularity compels the plaintiff to provide enough detail to enable the defendant to riposte swiftly and effectively if the claim is groundless. It also forces the plaintiff to conduct a careful pretrial investigation and thus operates as a screen against spurious fraud claims.

Fid. Nat’l Title Ins. Co. of N.Y. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 749 (7th Cir. 2005); see also Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994) (discussing the Rule’s purpose of “minimizing ‘strike suits’ and ‘fishing expeditions’ ”); Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 924 (7th Cir. 1992) (“Rule 9(b) ensures that a plaintiff have some basis for his accusations of fraud before making those accusations ...

A.

We have applied the requirements of Rule 9(b) in the past, and that experience provides useful guideposts for our assessment of this case. We begin by focusing on the requirements of the FCA. Our court summarized them in United States ex rel. Yannacopoulos v. General Dynamics, 652 F.3d 818 (7th Cir. 2011):

The False Claims Act makes it unlawful to knowingly (1) present or cause to be presented to the United States a false or fraudulent claim for payment or approval, 31 U.S.C. § 3729(a)(1) (2006); (2) make or use a false record or statement material to a false or fraudulent claim, § 3729(a)(1)(B); or (3) use a false record or statement to conceal or decrease an obligation to pay money to the United States, § 3729(a)(7) (2006). Under the Act, private individuals ... , referred to as “relators,” may file civil actions known as qui tam actions on behalf of the United States to recover money that the government paid as a result of conduct forbidden under the Act. Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 912 (7th Cir. 2009). As an incentive to bring suit, a prevailing relator may collect a substantial percentage of any funds recovered for the benefit of the government. Id. To establish civil liability under the False Claims Act, a relator generally must prove (1) that the defendant made a statement in order to receive money from the government; (2) that the statement was false; and (3) that the defendant knew the statement was false. E.g., United States ex rel. Gross v. AIDS Research Alliance-Chicago, 415 F.3d 601, 604 (7th Cir. 2005).

Id. at 822 (footnote omitted). The WFCA similarly requires a relator to show these elements. See Wis. Stat. § 20.931(2)(a) (a person is liable who “[k]nowingly presents or causes to be presented to any officer, employee, or agent of this state a false claim for medical assistance”); id. § 20.931(2)(b) (á person is liable who “[kjnowingly makes, uses, or causes to be made or used a false record or statement to obtain approval or payment of a false claim for medical assistance”).

1.

We first consider whether the complaint states, with sufficient particularity, that Acacia and Mr. Freund made the alleged claims and statements to the federal and state governments. The defendants contend, and the district court held, that Ms. Presser had not alleged that the defendants actually sent any of the alleged claims or made any of the alleged statements to the state or federal governments.

Our case law establishes that a plaintiff does not need to present, or even include allegations about, a specific document or bill that the defendants submitted to the Government. In United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849 (7th Cir. 2009), for example, an engineer alleged that his employer knowingly certified engine parts that did not meet the specifications prescribed by the Government. Id. at 853-54. The engineer’s complaint described the parts that were shipped to the Government, noted that a contract required his employer to certify the parts in order to receive payment, and stated that payment was received. Id. at 853. However, the engineer did not provide an invoice showing a specific request for payment. Id. at 854. We held, nonetheless, that it was reasonably understood from the complaint that the employer had submitted a certificate containing false statements in asking for payment. Id. (noting that it was “possible that military procurement officers accepted and paid for the turbine blades without this certificate” but that the possibility was “remote”). In a similar case, we held that an employee of an educational training institution adequately pleaded fraud by alleging that the institution failed to comply with federal law, received funding, and “could only have received federal funding by certifying compliance” with federal law. Leveski v. ITT Educ. Servs., Inc., 719 F.3d 818, 839 (7th Cir. 2013). In each of these cases, the alleged facts necessarily led one to the conclusion that the defendant had presented claims to the Government.

Here, Ms. Presser stated in her complaint that Mr. Freund had told her “that almost all of Acacia’s patients were ‘on Title 19’ ” and that they dealt with Medicare. Ms. Presser’s complaint also makes clear that the questionable practices and procedures were applied to all patients at the clinic. Considering Ms. Presser’s position as a nurse practitioner, a position that does not appear to include regular access to medical bills, we do not see how she would have been able to plead more facts pertaining to the billing process. See Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1051 (7th Cir. 1998) (“[T]he particularity requirement of Rule 9(b) must be relaxed where the plaintiff lacks access to all facts necessary to detail [her] claim.”). Therefore, “[f]or now, an inference is enough.” Leveski, 719 F.3d at 839. We hold, consistent with Lusby and Leveski, that Ms. Presser has alleged adequately that Acacia billed Medicare for services that were provided pursuant to the challenged policies and procedures.

2.

We now must consider whether the policies and practices alleged in Ms. Presser’s complaint describe the alleged fraudulent activity in sufficient detail. Although a pleading need not “exclude all possibility of honesty in order to give the particulars of fraud,” Lusby, 570 F.3d at 854, “[t]he grounds for the plaintiffs suspicions must make the allegations plausible, even as courts remain sensitive to information asymmetries that may prevent a plaintiff from offering more detail.” Pirelli, 631 F.3d at 443 (emphasis in original).

We begin with the allegations related to the use of billing code 90801. According to the complaint, this code is only meant to apply to full psychological assessments by a therapist or an evaluation by a psychiatrist. Ms. Presser alleges that her superiors directed her to use this code even though they also “expressly told [her] to discontinue conducting” psychiatric evaluations. She also alleges that receptionists and medical nurse practitioners used this code, even though their job description clearly does not include psychological assessments. The clinic director indicated to Ms. Presser that the use of this specific code was the policy and that Mr. Freund wanted these policies in place. Acacia mandated that all patients be assessed by a receptionist, nurse practitioner, and medical nurse practitioner, and each of these encounters were billed separately. These allegations state clearly and specifically that Acacia provided non-psychiatric evaluations and then falsely presented those services as psychiatric evaluations on bills to the state and federal governments.

Indeed, the allegations involving this billing code are even more specific than those presented in Universal Health Services, Inc. v. United States ex rel. Escobar, — U.S. —, 136 S.Ct. 1989, 195 L.Ed.2d 348 (2016). In Universal Health Services, a relator alleged that the owner of a mental health facility had employed mental health counselors who lacked the requisite licensing. Id. at 1997. The facility submitted reimbursement claims to Medicaid using payment codes “such as ‘Individual Therapy’ and ‘family therapy.’ ” Id. The Supreme Court concluded that, “by submitting claims for payment using payment codes that corresponded to specific counseling services, [the owner of the facility] represented that it had provided individual therapy, family therapy, preventive medication counseling, and other types of treatment.” Id. at 2000. The Court held that the use of these codes “without disclosing [the] many violations of basic staff and licensing requirements for mental health facilities ... constituted misrepresentations” that could serve as a basis for liability under the FCA. Id. at 2000-01. Ms. Presser’s allegations involve more than the “misleading half-truths” that the Court identified in Universal Health Services. Id. at 2001. In that case, the defendant allegedly billed Medicaid for the correct type of therapy but failed to note that the therapy was provided by an unqualified individual. Id. at 1999. Here, Acacia and Mr. Freund allegedly billed Medicaid for a completely different treatment. The claim therefore does not involve a misrepresentation by omission; it involves an express false statement. Ms. Presser’s complaint sufficiently alleges that the defendants misused a billing code and falsely represented to the state and federal governments that a certain treatment was given by certain medical staff when in fact it was not.

By contrast, Ms. Presser’s remaining allegations present significant cause for concern. Ms. Presser challenges the propriety of the four-person evaluation process, mandatory drug screenings, and policies on prescription refills and appointments. She claims that these policies violate 42 U.S.C. § 1395y(a)(1)(A), which states that the Medicare program will not provide reimbursement for services which “are not reasonable and necessary for the diagnosis or treatment of illness or injury.”

However, in her complaint, Ms. Presser provides no medical, technical, or scientific context which would enable a reader of the complaint to understand why Acacia’s alleged actions amount to unnecessary care forbidden by the statute. For instance, the complaint does not reference policies or practices at other medical clinics, regulations, or other publications which call Acacia’s policies into question. Further, although the complaint identifies four individuals who received treatment at Acacia that was, in Ms. Presser’s view, medically unnecessary, the complaint does not provide any reasons why these treatments actually were unnecessary other than Ms. Presser’s personal view.

We previously have affirmed dismissals of complaints that fail to put the defendant’s alleged activity into its relevant context. In Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d 436 (7th Cir. 2011), for example, we considered a complaint which alleged that a pharmacy chain systematically filled prescriptions for one form of a medication with a more expensive form of the same medication. Id. at 438. The plaintiff relied, in part, on data showing that the chain had sought reimbursement for the more expensive form of the drug eleven times. Id. at 444. We noted, however, that patients may have specific medical reasons that make the more expensive form of the drug preferable to the other form. Id. at 445. “[T]he data” presented in the complaint, “untethered as they are, cannot corroborate a fraud because their free-floating nature stymies any meaningful understanding of what the numbers mean.” Id. We explained that:

Putting the numbers in context could tell us whether [the plaintiff] also reimbursed [the pharmacy] for the cheaper form of the drugs in the five-year period that [the plaintiff] examined. To the extent it did not, the fraud claim would be supported; to the extent it did, it would be undermined. Or we could see if reimbursements for the more expensive forms of the drugs outstripped reimbursements for the cheaper versions in an unlikely way. [The plaintiff] did not need to dance to [a] comprehensive statistical tune, but did need to provide firsthand facts or data to make its suspicions plausible. [The plaintiffs] de min-imis showing tells us little and does not fulfill Rule 9(b)’s purpose of “forcing] the plaintiff to do more than the usual investigation before filing his complaint.”

Id. (last alteration in original) (emphasis in original) (quoting Ackerman, 172 F.3d at 469).

The complaint in this case similarly lacks a concrete basis for the plaintiffs allegations. Like the complaint in Pirelli, Ms. Presser’s complaint fails to demonstrate how Acacia’s policies compare to other clinics or could otherwise be understood as “unusual.” See id. Acacia’s policies could have entirely innocent explanations. A four-step evaluation process may be in place to ensure that patients are diagnosed properly and receive proper treatment. Mandatory drug-screening and in-person refill policies may ensure that prescriptions are not being abused. Without additional context providing reason to question the appropriateness of these policies, the complaint does not present allegations of fraud with sufficient particularity.

Not only does the lack of context make these allegations too indefinite, but each of the allegations depends entirely on Ms. Presser’s personal estimation — an estimation that is not supported in any concrete manner. Many potential relators could claim that “in my experience, this is not the way things are done.” However, relators may not be in a position to see the entire picture or may simply have a subjective disagreement with the other party on the most prudent course of action. Further, their perspective may be colored by considerable bias or self-interest, such as in the case of a disgruntled employee. The heightened possibility of mistake or bias supports the need for a higher standard of specificity for fraud compared to other civil litigation. See, e.g., Fid. Nat'l Title Ins. Co., 412 F.3d at 749 (noting that Rule 9(b) “forces the plaintiff to conduct a careful pretrial investigation and thus operates as a screen against spurious fraud claims”); Ackerman, 172 F.3d at 469 (“[F]raud is frequently charged irresponsibly by people who have suffered a loss and want to find someone to blame for it.”); Unv'Quality, Inc., 974 F.2d at 924 (“Rule 9(b) ensures that a plaintiff have some basis for his accusations of fraud before making those accusations and thus discourages people from including such accusations in complaints simply to gain leverage for settlement or for other ulterior purposes.”). Ms. Presser’s subjective evaluation, standing alone, is not a sufficient basis for a fraud claim.

We hold that Ms. Presser sufficiently has alleged facts that constitute a fraudulent scheme involving the use of billing code 90801. However, without an ascertainable standard or more context, Ms. Presser’s other allegations of fraud do not suffice. The latter claims were properly dismissed by the district court.

B.

A party has the right to amend the complaint once as a matter of right and has the opportunity for further amendment at the district court’s discretion. Fed. R. Civ. P. 15(a); see also Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015). Here, Acacia and Mr. Freund moved to dismiss Ms. Presser’s initial complaint, contending in part that Ms. Presser had not pleaded a single claim with sufficient particularity. The district court granted Ms. Presser’s motion for leave to amend her complaint and directed Ms. Presser to “mak[e] any and all improvements she deems appropriate; no further leave to amend will be granted.” When the court subsequently dismissed Ms. Presser’s amended complaint, it concluded that Ms. Presser was on notice that she would not receive additional leave to amend and “that any further amendment would be unduly prejudicial to Defendants.”

Ms. Presser does not challenge the district court’s decision not to grant further leave, and therefore this issue is waived. See Fluker v. Cty. of Kankakee, 741 F.3d 787, 795 (7th Cir. 2013) (holding that a party that failed to develop a legal argument on appeal regarding the district court’s denial of its attempt to file a second amended complaint had waived the issue). Considering that some of her claims are proceeding to the discovery stage, the district court may choose to revisit the question of amendment because the potential for undue prejudice to Acacia and Mr. Freund that previously was identified by the district court now may be diminished. The decision whether to grant further leave to amend is entirely within the discretion of the district court.

Conclusion

For the foregoing reasons, we affirm the district court’s judgment except with respect to the claims about the use of billing code 90801. With respect to those claims, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion. Whether, under these circumstances, further amendment should be allowed, is left to the district court’s discretion. The parties shall bear their own costs in this appeal.

AFFIRMED in part; REVERSED and REMANDED in part

HAMILTON, Circuit Judge,

concurring in part and dissenting in part.

I agree with my colleagues that the dismissal of Presser’s claims alleging fraudulent use of billing codes must be reversed. Judge Ripple’s opinion explains why Presser alleged sufficiently that the defendants presented the allegedly false claims to the federal and state governments for payment and why those allegations are sufficiently specific for purposes of Rule 9(b) regarding the improper billing codes.

However, I respectfully part company on the dismissal of Presser’s other fraud claims based on the unnecessary four-person evaluation process, mandatory drug screenings, and policies on prescription refills and appointments. I would allow those claims to go forward as pleaded. In any event, the district court will need to exercise its sound discretion in deciding whether to allow further amendments to revive these other claims.

On these other claims, Presser alleged the “circumstances” of the fraud with particularity as required by Rule 9(b) by providing “the who, what, when, where, and how, the first paragraph of any newspaper story.” U.S. ex rel. Hanna v. City of Chicago, 834 F.3d 775, 778-79 (7th Cir. 2016), quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). She has identified the defendants’ practices that led to much higher billings to the government. The majority does not disagree. In addition, Presser has alleged fraudulent intent adequately as to all of her claims. The majority acknowledges as much in footnote 29, which also reminds us that Rule 9(b) allows fraudulent intent to be alleged “generally.”

Yet the majority concludes on pages 779 to 781 that Presser failed to allege something else essential, apparently some additional factual basis to support her contention that these other challenged practices are in fact fraudulent rather than innocent. That discussion is in tension with note 29 and more broadly with our case law interpreting Rule 9(b) and the ability to plead fraudulent intent generally.

The majority tells us that what is missing is “an ascertainable standard or more context,” and the majority suggests that a reference to a professional standard might provide the missing allegations. Ante at 780. The majority is concerned that plaintiff has not identified anything other than her own experience and judgment as a basis for saying that defendant was billing the federal and state governments for unnecessary care. The majority also speculates about possible innocent .explanations for the allegedly fraudulent practices. Ante at 780.

With respect, the majority’s insistence on an external standard or “context” goes beyond the requirements of Rule 9(b). The circumstances of the alleged fraud have been alleged with particularity here. We have long rejected demands for more than the “who, what, when, where, and how” under Rule 9(b). E.g., Hefferman v. Bass, 467 F.3d 596, 602 (7th Cir. 2006) (reversing dismissal of fraud claim); Fidelity Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 749 (7th Cir. 2005) (same); General Electric Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1078 (7th Cir. 1997) (affirming denial of dismissal under Rule 9(b)); Midwest Commerce Banking Co. v. Elkhart City Centre, 4 F.3d 521, 524 (7th Cir. 1993) (error to dismiss under Rule 9(b)); Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 683 (7th Cir. 1992) (plaintiff need not “plead facts showing that the representation is indeed false”); accord, Windy City Metal Fabricators & Supply, Inc. v. CIT Technology Financing Services, Inc., 536 F.3d 663, 668-69 (7th Cir. 2008) (complaint need not plead evidence of fraud). The majority seems to demand that the relator plead evidence or in essence prove her case in the complaint.

In fact, the majority here comes close to applying the special pleading standard from the Private Securities Litigation Reform Act, which requires a securities fraud plaintiff to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2); see also Tellabs v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319-20, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (explaining how PSLRA requirement for pleading fraudulent scienter goes beyond Rule 9(b)). That standard does not apply here, but by suggesting innocent explanations for the challenged practices and criticizing the relator’s failure to negate them in her complaint, the majority applies something very close to the “strong inference” standard from the PSLRA.

To justify this unusually demanding interpretation of Rule 9(b), with its amorphous requirement for pleading “context,” the majority highlights one of the policy concerns reflected in Rule 9(b): the danger that a defendant’s reputation might be tarnished unfairly by conclusory allegations of fraud. That is one important policy at stake here, but so too are the liberal pleading policies reflected in Rules 8 and 9(b). We and other courts try to strike the right balance, guided by the rules’ texts and purposes, by insisting that the “circumstances” of alleged fraud be stated with particularity while allowing general pleading of fraudulent intent. That balance does not include the majority’s uncertain requirement for pleading “context” or for facts refuting the majority’s suggested innocent explanations for the allegedly fraudulent practices. These additional claims may fail later on for lack of evidence, but it seems to me, for now at least, that they have been pleaded sufficiently.

This case will return to the district court for discovery and further proceedings. It is possible the relator Presser may seek to amend her complaint to meet the newly articulated requirement for “context” or “external standards,” or at least for more factual details supporting the other fraud claims. The majority says at page 781 that the decision on any further amendment of the complaint “is entirely within the discretion of the district court.” It should go without saying that discretion must be exercised according to law. Rule 15(a)(2) provides that the “court should freely give leave when justice so requires.” If a further amendment is sought here, the case for allowing it would be very strong because of a mistake the district court made at the outset of the case.

When the defense filed its original motion to dismiss, the district judge told the relator that she would have only one chance to amend her complaint. Such a rigid ruling at the outset of most cases would be an abuse of discretion. See Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 522 (7th Cir. 2015) (2009 amendment to Rule 15(a) “did not impose on plaintiffs choice of pleading a regime of ‘one-and-done’ ”). In this case, the “one- and-done” ruling was an abuse of discretion since it was based on the judge’s own clear legal mistake. He wrote that the complaint failed to state a claim under the Falsé Claims Act because it asserted a claim under “31 U.S.C. § 3729(a)(2).” See U.S ex rel. Presser v. Acacia Mental Health Clinic, LLC, 2014 WL 3530747, at *1 (E.D. Wis. July 15, 2014) (summarizing earlier order). The flaw that prompted the “last chance” warning, was merely a problem with a citation, which was not even necessary.

The original complaint quoted the correct language from the False Claims Act— “knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim.” The problem was that the original complaint cited - the pre-2009 version, 31 U.S.C. § 3729(a)(2), rather than the post-2009 version in which that same language appears in § 3729(a)(1)(B). The complaint was not required to include a legal theory, let alone a correct citation. E.g., Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005); Bartholet v. Reishauer A.G., 953 F.2d 1073 (7th Cir. 1992). Such a minor citation error should not be fatal, nor should it shut the door to any further needed amendments, keeping in mind the “when justice so requires” standard of Rule 15(a)(2).

More generally, in the post-/g6ai-and-Twombly world of civil pleading, it is difficult for any plaintiff to know what a particular district judge will require by way of details in a complaint. Variations among district judges and appellate panels can be substantial, suggesting that the Iqbal and Twombly project is leading not to more clarity and less litigation, but to less clarity and more litigation. The majority acknowledges this problem, noting accurately that “the precise details that must be included in a complaint ‘may vary on the facts of a given case.’ ” Ante at 776, quoting. Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 442 (7th Cir. 2011); accord, In re Healthcare Compare Corp. Securities Litig., 75 F.3d 276, 284-85 (7th Cir. 1996) (Ripple, J., dissenting) (“Reasonable minds can — and will — differ on the adequacy of the factual specificity in an allegation of fraud.”). To emphasize the uncertainty, Pi-relli noted that the plaintiff in that case may have provided too much detail. 631 F.3d at 439 n.1.

Too much? Too little? More “context”? What is a plaintiff to do? The best approach is to let the plaintiff try her best, and then to be liberal in allowing amendments (“when justice so requires”) once the court has indicated what is necessary. E.g., Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 519-20 (7th Cir. 2015) (reversing dismissal). We should not decide cases, or invite district judges to decide cases, based on a plaintiffs incorrect prediction about just how much detail a particular district judge or appellate panel might require. See Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). Such decisions about amending pleadings are left to district judges’ sound discretion, not to their whims, and certainly not to their impatience based on their own legal mistakes, as occurred in this case.

      . On July 12, 2015, the Wisconsin legislature repealed the Wisconsin False Claims Act in its entirety. See 2015 Wis. Act 55, § 945n. However, under Wisconsin law, "[t]he repeal of a statute hereafter shall not remit, defeat or impair any civil or criminal liability for offenses committed, penalties or forfeitures incurred or rights of action accrued under such statute before the repeal thereof.” Wis. Stat. § 990.04.

      . R.31 at 9 ¶ 26.

      . Id. at 8 ¶ 22. Based on the complaint, it appears that the clinic manager asked Ms. Presser to discontinue these evaluations in the first two months of her employment, in order to conform to Acacia’s four-step assessment procedure. See id. at 8 ¶ 21. However, the complaint is not entirely clear on this point.

        . Id. at 10 ¶ 28.

      . Id. at 12 ¶ 39.

      . Id. at 13 ¶ 42.

      . Due to the Privacy Rule established in the Health Insurance Portability and Accountability Act of 1996, the patients’ identities are undisclosed. See id.

      . Id. at 13-15 n 43, 46.

      . The amended complaint does not specify whether John Doe 2 or Jane Doe 1 were prior patients at Aurora Behavioral Health or were seen for the first time at Acacia.

      . Id. at 17 ¶ 55.

      . Id. at 17 ¶ 57.

      . Id. at 18 ¶ 59.

      . Id. at 19 ¶'62.

      . Id. at 6 ¶ 14; see also id. at 15 ¶ 48.

      . Id. at 16 ¶ 52; see also id. at 17 ¶ 57 (telling Ms. Presser that patients were on Title 19).

      . Ms. Presser also presented a conspiracy claim, a common law claim of payment under mistake of fact, and a common law claim of unjust enrichment. The district court dismissed those claims, and Ms. Presser does not appeal their dismissal.

      . R.30 at 2 (emphasis omitted). In the view of the district court, Ms. Presser cited a provision of the FCA which did "not provide for liability.” Id. at 1. It stated that, absent an amendment, it therefore "would be obliged to dismiss this case for failure to state a claim.” Id. Although the district court only referenced this supposed jurisdictional defect as the basis for its order, it did state that Ms. Presser should make all appropriate improvements to her complaint. Id. at 1-2.

      . R.40 at 7 (emphasis in original).

      . Id. (emphasis omitted) (quoting R.31 at ¶¶ 59-60).

      . Id. at 7-8 (emphasis in original).

      . We also review de novo a decision to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6). O’Gorman v. City of Chi., 777 F.3d 885, 888 (7th Cir. 2015). However, a complaint that satisfies the heightened pleading standards of Rule 9(b) necessarily satisfies the pleading standards of Rule 12(b)(6). See

        Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736-37 (7th Cir. 2014).

      . See also AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir. 2011); Vincent v. City Colls. of Chi., 485 F.3d 919, 923 (7th Cir. 2007); Emery v. Am. Gen. Fin., Inc., 134 F.3d 1321, 1323 (7th Cir. 1998).

      . In enacting the FCA, Congress sought "to encourage any individual knowing of Government fraud to bring that information forward.” S. Rep. No. 99-345, at 2 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5266-67.

      . R.31 at 17 ¶¶ 57-58.

      . Id. at 8 ¶ 22.

      . The Supreme Court remanded the case to determine whether this misrepresentation was sufficiently "material.” Universal Health Servs., Inc. v. United States ex rel. Escobar, — U.S. —, 136 S.Ct. 1989, 2002-04, 195 L.Ed.2d 348 (2016).

      . See R.31 at 21 ¶ 72.

      . See, e.g., id. at 9 ¶ 26 ("Based on Presser's years of experience and training, Acacia's four-step policy was not medically necessary.”); id. at 10 ¶ 29 ("Based on Presser's years of experience and training, Acacia’s policy mandating a urine drug screen each time a patient came to the clinic was not medically necessary.”); id. at 12 ¶ 39 ("Based on Presser’s years of experience and training, Acacia’s policies requiring appointments to speak with clinicians, limiting refills without an appointment, and mandating psychotherapy and Medical Nurse Practitioner assessments to obtain refills of medications were medically unnecessary.”).

      . Ms. Presser has pleaded adequately the element of fraudulent intent for her remaining claims. The FCA's “scienter requirement defines 'knowing' and 'knowingly' to mean that a person has 'actual knowledge of the information,' 'acts in deliberate ignorance of the truth or falsity of the information,’ or 'acts in reckless disregard of the truth or falsity of the information.’ ” Universal Health Servs., 136 S.Ct. at 1996 (quoting 31 U.S.C. § 3729(b)(1)(A)). Unlike the other elements of an FCA claim, "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed. R. Civ. P. 9(b); see also Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 658 (7th Cir. 2015). According to the complaint, Ms. Presser was told by the clinic manager that Acacia's policy required the use of billing code 90801, and she was told that Mr. Freund endorsed this policy. One certainly could infer intent from these alleged facts. The defendants do not contend that Ms. Presser has failed to satisfy the element of intent, and we see no reason to affirm the dismissal of her complaint on these grounds.

      . R.30 at 2 (emphasis omitted).

      . R.40 at 10.


author: YANDLE, District Judge.

text:
    PINE TOP RECEIVABLES OF ILLINOIS, LLC, Plaintiff-Appellee, v. TRANSFERCOM, LTD., Defendant-Appellant.
    No. 16-1073
    United States Court of Appeals, Seventh Circuit.
    Argued May 31, 2016
    Decided September 1, 2016

      Mary Cannon Veed, Attorney, Mary Cannon Veed & Associates, Hinsdale, IL, for Plaintiff-Appellee.
    Edward F. Dunne, Robert A. Badgley, Attorneys, Karbal, Cohen, Economou, Silk & Dunne, Chicago, IL, for Defendant-Appellant.
    Before EASTERBROOK and WILLIAMS, Circuit Judges and YANDLE, District Judge.

       Of the Southern District of Illinois, sifting by designation.

   YANDLE, District Judge.

Pine Top Receivables of Illinois, LLC’s (“PTRIL”) sued Transfercom Limited (“Transfercom”) in state court. Transfer-com removed the case on diversity grounds. On PTRIL’s motion, the district court remanded the matter based on its determination that, due to the service of suit clause in reinsurance treaties between the parties, Transfercom waived the right of removal.

I.

Following the liquidation of Pine Top Insurance Company, some of its accounts receivable were assigned to PTRIL, a limited liability company incorporated in Delaware with its principal place of business in New York. Transfercom, an insurance company incorporated in the United Kingdom, assumed certain obligations of Nissan Fire and Marine Insurance Company (UK) Limited (“Nissan”), an insurance company organized under the laws of Japan which transacted business in the United States. Among the obligations assumed by Trans-fercom were those owed by Nissan to Pine Top Insurance Company before liquidation.

PTRIL filed suit in state court alleging breach of contract against Transfercom and seeking recovery of the receivables under two reinsurance treaties entered into by and between Transfercom’s predecessor and Pine Top in 1981 and 1982. Transfercom removed the litigation to federal court and PTRIL filed a motion to remand contending that Transfercom had waived its right to remove the case in the reinsurance treaties.

The reinsurance treaties are essentially identical and each contains a service of suit clause which provides, in relevant part:

It is agreed that in the event of the failure of the Reinsurer hereon to pay any amount claimed to be due hereunder, the Reinsurer hereon, at the request of the Company, will submit to the jurisdiction of any Court- of competent jurisdiction within the United States and will comply with all requirements necessary to give such Court jurisdiction and all matters arising hereunder shall be determined in accordance with the law and practice of such Court.

In remanding the case to state court, the district court found that, based on the plain and ordinary meaning of the service of suit clause, PTRIL reserved the exclusive authority to select both the jurisdiction and venue, and Transfercom waived its right to remove the case to federal court.

II.

28 U.S.C. § 1441(a) provides that, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” While the right of removal is a statutory right, it is a right that can be waived. One such mechanism for waiving the right of removal is through a forum selection clause. As early as 1949, the overwhelming majority of federal courts have held that service of suits clauses — such as the one at issue in this case — foreclose a defendant’s right of removal. See General Phoenix Corp. v. Malyon, 88 F.Supp. 502, 503 (S.D.N.Y. 1949); see also The Travelers Ins. Co. v. Keeling, 996 F.2d 1485, 1487-90 (2d Cir. 1993); Foster v. Chesapeake Ins. Co. 933 F.2d 1207, 1216-19 (3d Cir. 1991), cert. denied, 502 U.S. 908, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991); City of Rose City v. Nutmeg Ins. Co., 931 F.2d 13 (5th Cir. 1991); Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, et al., 119 F.3d 619, 622-23 (8th Cir. 1997); Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1047 (11th Cir. 2001).

Transfercom argues that a waiver of the statutory right of removal must be “clear and unequivocal”'and that, notwithstanding the district court’s finding that the language of the service of suit clause at issue is clear and unequivocal, the existence of an arbitration clause in the reinsurance treaties renders the clause ambiguous and unenforceable. The arbitration clause states: “As a condition precedent to any right of action hereunder, any irreconcilable dispute between the parties to this Agreement will be submitted for decision to a board of arbitration.” This language in no way muddies the water with respect to the meaning of the service of suit clause.

On appeal, Transfercom urges us to adopt a heightened “clear and unequivocal” interpretation standard which has been applied when the removing party’s actions in participating in state court proceedings prior to removal were interpreted as a waiver of the right to remove. See Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1217 n. 15 (3d Cir. 1991); see also Snapper, Inc. v. Redan, 171 F.3d 1249, 1260-61 (11th Cir. 1999). Such litigation-based waivers are distinguishable from contractual waivers and, like the Third Circuit in Foster, we decline to apply a “standard so stringent as to be contrary to the right of parties to contract in advance regarding where they will litigate.” Foster, 933 F.2d at 1217 n. 15. When called upon to interpret a contractual waiver of the right to remove, district courts should utilize the same standards of interpretation and construction they employ in resolving all preliminary contractual questions. See id.

Read as a whole, the reinsurance agreement requires Transfercom to submit to the jurisdiction of any court of competent jurisdiction chosen by PTRIL, whether it be to determine the arbitrable nature of the dispute, to confirm an arbitration award, to compel arbitration, or to resolve on the merits, a claim not subject to arbitration — including PTRIL’s breach of contract claim. See e.g., Travelers Ins. Co. v. Keeling, 996 F.2d 1485, 1490 (2d Cir. 1993); Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, subscribing to Retrocessional Agreement Nos. 950548, 950549, 950646, 584 F.3d 513, 554 (3d Cir. 2009) (service of suit clauses compliment rather than negate accompanying arbitration clauses).

III.

Lastly, relying on an Illinois Appellate Court decision, Whirlpool Corp. v. Certain Underwriters at Lloyd’s London, 278 Ill.App.3d 175, 214 Ill.Dec. 901, 662 N.E.2d 467 (1996), Transfercom contends that its right to remove this litigation is not waiva-ble. But Whirlpool addresses the issue of forum non conveniens, not removal. This distinction is significant — remand involves a purely private interest, while forum non conveniens involves a public interest. See Archdiocese of Milwaukee v. Underwriters at Lloyd’s, London, 955 F.Supp. 1066, 1069 (E.D. Wis. 1997) (noting that the defendants’ right to remove a case is their right alone which can be waived, exercised, or bargained away while forum non conveniens is based on the interests of both the parties and the public and, therefore, the court must still weigh the public interest involved). As such, Transfercom’s reliance on Whirlpool is misplaced.

IV.

Here, the service of suit clause unambiguously grants PTRIL the absolute right to choose the forum for litigating this matter and the district court properly concluded that to allow removal would be to ignore the contractual term’s plain and ordinary meaning. Accordingly, we AFFIRM.


author: WILLIAMS, Circuit Judge.

text:
    Marylee ARRIGO, Plaintiff-Appellant, v. Jay E. LINK and Link Stop, Inc., Defendants-Appellees.
    Nos. 13-3838 & 14-3298
    United States Court of Appeals, Seventh Circuit.
    Argued May 26, 2015
    Decided September 6, 2016

      James H. Raster, Attorney, Minneapolis, MN, for Plaintiff-Appellant.
    Daniel Alan Kaplan, Attorney, FOLEY & LARDNER LLP, Madison, WI, for Defendants-Appellees.
    Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

Marylee Arrigo maintained in this lawsuit that she was fired from her job for taking or requesting leave under the Family and Medical Leave Act. The jury did not agree, and she appeals. Arigo contends that her supervisor’s notes from a meeting he requested before she returned from medical leave were wrongly excluded from trial. We conclude that the district court did not abuse its discretion when it found the notes not relevant to the issues at trial, as Arrigo’s only claim at trial was under the FMLA and the notes do not suggest displeasure with Arrigo’s use of leave. She also argues that the district court erred when it denied her motion for leave to amend to add claims under Title VII and the Americans with Disabilities Act, but she has not shown good cause for filing the motion after the deadline. Finally, Arrigo maintains that the district court should not have dismissed a second lawsuit that she filed which alleged the same Title VII and ADA claims for which she unsuccessfully sought leave to amend in the first suit. Allowing the second lawsuit to proceed would undercut our decision to uphold the denial of leave to amend to add these very claims. Therefore, we affirm the judgment of the district court.

I. BACKGROUND

Marylee Arrigo was a long-time employee of Link Stop, a gas station and convenience store in northwest Wisconsin owned by David Link. She first began working there from 1999 to 2002, took a break for school, and then resumed working in 2004, this time as Link Stop’s bookkeeper. Over time, Arrigo took on bookkeeping for several of Link’s other businesses as well, including Grandma Link’s Restaurant & Lounge, Ashland Lake Superior Lodge, and Gordon Pines Golf Course. She also acquired some management responsibilities, and her duties included paying bills and invoices and generating monthly financial reports.

On Saturday, September 11, 2010, Arri-go suffered a severe anxiety attack and was taken by ambulance to the emergency room. Arrigo called Lydia Cook, Link’s long-time assistant, and informed her that she needed a period of medical leave. Link later told her to take the time she needed, and Arrigo was paid during her leave. Her doctor authorized her to return to work on September 27, 2010. When she called Cook to inform her of her return-to-work date, Cook told Arrigo to call Link, which she did. He was out of town and said he wanted to meet with her when he returned and before she began working.

Link testified at trial that he asked Arri-go to provide a return-to-work certification from her doctor before returning to work. When she failed to do so, he briefly delayed her return so he could meet with her before she returned to work. Arrigo and Link met on Friday, October 8, 2010. Link took handwritten notes during the meeting, which he titled “10/8/10 Leave of Absence Medical Review.” During the meeting, Link asked Arrigo for details about her condition, diagnosis, and treatment. Arrigo answered his questions and divulged information including that she had been prescribed medications and ordered to attend counseling. Link’s handwritten notes from the meeting state:

10-8-10 Leave of Absence Medical Review
Marylee -Hospital Sept. 11th Doctor (Ambulance)
-known since April/Doctor says one year
Anixity [sic] issue
-Panic attack — cold/sick/electric feeling
-Stress related
-Saratonin [sic] lacking (mood chemical) — chemical imbalance
-Treating with — ‘Paxil Drug’
-Former Zantax drug — (not for two weeks) — very addictive Today feels normal
Exhausted — 12hrs/day/7 days a week
-Learn to relax — like her father— brain does not shut off.
-Sleeping issues for five years
-Kelly’s mother’s death
Treatment
-Paxil working quickly
-Released to go back to work
*Physical therapy — every three -Sleeping aid weeks — ‘or as needed’
-Rest
Suggest to stop smoking File Personell [sic]
Suggest exercise "Marylee"
JLJ
11-5-10

The next page had three lines, which said:

-Need to change Christa — more training
-Quit being a control freak
Idea’s [sic] to Change

Arrigo returned to work on Monday, October 11, 2010. She says Link told her about several changes he was implementing, including her office relocation to the basement of his office/residence at Bond Lake. According to Arrigo, he also said that she would be moving away from her management role and focusing on financial reports. Arrigo maintains that Link treated her differently when she returned from medical leave; for example, she says, he no longer greeted her upon her arrival, and he instituted new work requirements. Link also told Arrigo she needed to complete the monthly financial reports by the first of the following month, something he conceded “can’t be done.”

About six weeks after her return to work, on November 22, 2010, Arrigo was in a car accident on the way to work. She was not seriously injured but went to the hospital, and she learned there that she was pregnant. As a result, her doctor directed her to stop taking her anti-anxiety medication. She suffered withdrawal symptoms that landed her in urgent care on a Saturday, and the doctor told her to take two days off work the following week. According to Arrigo, she informed Link that Monday that she was pregnant, to which he responded that she had missed enough work and needed to get back to work. Link, however, says Arrigo did not tell him then that she was pregnant. Arrigo returned to work the following day.

In early December, Link issued Arrigo the first written performance warning she had received during her time working for him. The warning cited untimely financial reports, which Arrigo maintains was partly because of her medical leave a few months earlier. Link and Arrigo met about the memorandum, and Link says they discussed a number of things that in his view needed improvement: work hours, availability, attitude, insubordination, getting along with other employees, and the timeliness of her financial reports. The memorandum expressed optimism that Arrigo would improve, stating in part, “To be realistic, I estimate that such improvement will take no time at all to become visible. Given your excellent performance record in the past, there is no reason to assume anything but success.”

On Monday, January 24, .2011, Arrigo emailed Link that her year-end reports would be completed by Wednesday and that she and another employee intended to take Thursday and Friday off from work. Link responded that day in an email: “Ma-rylee, a few days notice for two of my staff to take time off at the same time is not fair. We have a process in place to take time off, you know. If there is some emergency, please advise .... ” Link wrote the next day, “Looking back, it seems you do not have any vacation time. Are you requesting time off without pay?” Arrigo responded that she had three weeks of vacation time. She did not hear further from Link. Arrigo did not work that Thursday and Friday. The following Monday, Link terminated Arrigo’s employment.

Arrigo filed administrative complaints in Wisconsin asserting violations of the Wisconsin state Family and Medical Leave Act and pregnancy and discrimination claims under Wisconsin state law. She also filed a charge of discrimination with the EEOC asserting pregnancy and disability claims under Title VII and the-ADA. While Title VII and ADA claims require a right-to-sue letter before such claims can be asserted in federal court, Houston v. Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir. 1999), the FMLA has no comparable requirement. Arrigo asked the defendants to agree to toll the statute of limitations on her FMLA claims until the conclusion of the administrative proceedings, but they declined.

Arrigo filed suit in federal court in September 2012 asserting that she was fired for taking federal FMLA leave. Six months later, she moved for leave to amend her complaint to add pregnancy and disability claims under Title VII and the ADA. The district court denied that request, finding that Arrigo’s motion, filed four months after the deadline for amending pleadings, came too late. Arrigo filed a separate federal suit in September 2013 alleging the same Title VII and ADA claims, and the district court granted the defendants’ motion to dismiss the second suit.

The first case proceeded to trial in the spring of 2014 on the FMLA interference claim. The district court granted the defendants’ request to exclude Link’s handwritten notes from the October 8 meeting, as it found them irrelevant to Arrigo’s claims. The parties agreed before trial that Arrigo’s anxiety condition and her medication withdrawal in November 2010 were serious health conditions that entitled her to FMLA leave.

The jury heard about other direct reports of Link who had taken medical leave without being retaliated against or terminated. Cook took a four or five week medical leave in 2005, a medical leave in 2006, and a third medical leave in 2012. She also took maternity leaves of sixteen and twelve weeks while working for Link. Marilyn Lehman took frequent medical leaves to care for her newborn daughter in 2007, to care for her sick mother in 2011 and 2012, and to care for her husband following surgery in 2013. Michael Bobin, a previous Link Stop manager, took a four or five month medical leave due to a heart condition. The jury also heard about performance issues that Link believed existed with Arrigo.

After a five-day trial, the jury returned a verdict against Arrigo. It answered “no” to the question of whether she had proven that one of the reasons Link terminated her was that she took or requested medical leave in the fall of 2010 or that she had notified him that she needed to take maternity leave. So the jury did not reach the question of whether the defendants had proven Link would have terminated Arrigo even if she had not taken or requested medical leave or notified him she would need to take medical leave. Arrigo appeals.

II. ANALYSIS

A. Exclusion of Evidence from Trial

We turn first to Arrigo’s contention that the district court wrongly excluded evi-denee from trial that was relevant to her FMLA claim. The FMLA provides that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise” any rights provided under the FMLA. 29 U.S.C. § 2615(a)(1). One of these is an employee’s right to take twelve weeks of unpaid leave during a year for certain medical reasons. Id. § 2612. Another is the right following leave “to be restored by the employer to the position of employment held by the employee when the leave commenced” or to an equivalent position. Id. § 2614(a)(1). Arrigo maintained at trial that she was fired for taking FMLA leave, requesting such leave, or notifying her employer that she would be needing leave.

Evidence is relevant when “it has any tendency to make a fact more or less probable than it would be without the evidence,” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401. We review the district court’s evidentiary rulings during trial or beforehand on motions in limine for an abuse of discretion. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). In doing so, “[decisions to exclude evidence are given considerable deference.” Lewis v. City of Chi. Police Dep’t, 590 F.3d 427, 440 (7th Cir. 2009). And even if the district court erred in excluding evidence, “[a] new trial is warranted only if the error has a substantial and injurious effect or influence on the determination of a jury and the result is inconsistent with substantial justice.” Id.

In this case, the parties agreed, and the jury verdict form reflected, that the threshold question the jury had to answer was whether Arrigo had “proven by a preponderance of the evidence that one of the reasons that Defendant Jay E. Link terminated her was that she took or requested medical leave in the fall of 2010 or that she had notified Defendant Link that she would need to take maternity leave.” Only this FMLA claim was at issue in the trial. There was no claim under the ADA. Arri-go contends that the district court kept out evidence that was relevant to the question the jury had to answer.

1. Notes from October 8 Meeting

Arrigo first argues that Link’s handwritten notes from the October 8 meeting were wrongly excluded. The district court ruled that the notes were irrelevant to Arrigo’s claim at trial, explaining: “This exhibit is not relevant because it doesn’t go to what [Link’s] frustration was allegedly about her having taken any FMLA leave. Now there might have been a great claim about his antipathy toward people that have mental problems, but that’s not this lawsuit.” The effect of the ruling excluding the October 8 meeting notes from trial was that Arrigo also could not introduce evidence that the meeting notes had been placed in her personnel file, which was the first time notes had been placed in her file during her time there.

In contending that the notes were relevant in this trial, Arrigo first argues that the notes are evidence of Link’s anti-FMLA animus. She maintains they show he was evaluating her because of her FMLA leave since the purpose of the meeting was to “review,” per Link’s handwritten “Leave of Absence Medical Review” title on the notes,- Arrigo directly following her leave. We have said before that “remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based on illegal criteria will suffice as direct evidence of discrimination.” Whitfield v. Int’l Truck & Engine Corp., 755 F.3d 438, 443 (7th Cir. 2014) (quotations omitted) (finding word “black” written on file direct evidence of discrimination in race discrimination claim). But the notes do not suggest that she was being evaluated for having taken leave. The notes contain details about Arri-go’s anxiety, medications, and symptoms, but not about any leave. The only time the word “leave” appears on the notes is in the title (and it is factually true that Arrigo had taken leave). There is nothing in the notes discussing the leave itself or anything that foresees the potential for future leave.

In a similar vein, Arrigo argues that the evidence was also relevant because it demonstrated that the leave was weighing on Link’s mind. She contends a jury could infer from the notes and other evidence that Arrigo’s leave concerned Link enough that he wanted a record of it, that Link evaluated Arrigo differently following her leave, and/or that the leave impacted how he thought about Arrigo. She also argues that a jury could infer from Link’s questions about Arrigo’s anxiety that he was concerned about future leave. Arrigo does not, however, identify any part of the notes that demonstrate concern Link had about her use of leave. The notes focus exclusively on the details Arrigo provided about her mental health, including her anxiety attack, diagnosis, and her current condition. They do not say anything about, for example, whether Arrigo’s doctor expected that she might experience another anxiety attack requiring additional time off in the future, nor do they contain any mention of the expected duration of any future medical leave.

Arrigo also points to the last line in the notes, which states, with nothing below it, “Idea’s [sic] for Change.” Although Arrigo argues that the FMLA does not permit changing of duties after leave, the meeting notes do not suggest that Link was contemplating any change of duties. There is nothing underneath the phrase to which she points, and no indication that the “change” concerns a change in duties rather than, for example, lifestyle issues such as learning to relax and exercise that are mentioned elsewhere in the notes.

Arrigo also argues that the notes demonstrate Link delayed her return to work in a veiled attempt to interfere with her use of leave, and that the notes are therefore impeachment of Link’s trial testimony that he delayed Arrigo’s return because she had not provided the required certification from her doctor. We agree with Link that the notes do not impeach this testimony because they do not suggest that Link’s true reason for delaying Arri-go’s return was anything other than what he testified: Arrigo had not produced a certification, so he wanted to meet with her.

Arrigo’s rationale for wanting the notes admitted further supports the conclusion that the district court did not abuse its discretion when it excluded the notes. Federal Rule of Evidence 403 warns against the “danger of ... unfair prejudice, confusing the issues, undue delay, [and] wasting time.” Arrigo’s counsel told the district court that he wanted to use the notes to argue to the jury that Link had a bias against Arrigo’s particular serious medical condition. Arrigo’s counsel said, for example: “I think these notes demonstrate that precisely what we’ve been arguing about is true, that he had a bias against this particular condition, this particular serious medical condition.” But any bias Link had toward Arrigo’s medical condition was not at • issue in this trial, where the only claim was that Link fired Arrigo for using or wanting to use medical leave. There was no claim at trial that Link discriminated against her on the basis of her anxiety. That is, the issue was not whether Link had a bias against a particular condition, but whether Link had a bias toward the use of leave. So the district court did not abuse its discretion when it excluded the notes.

2. Other Evidentiary Issues

Arrigo maintains the district court excluded multiple other pieces of relevant evidence. She argues that she should have been allowed to offer additional testimony regarding her January 2011 vacation request, and specifically that she spoke with Cook, who encouraged her to take the vacation even without Link’s approval. Before the district court, Arrigo sought to introduce this testimony to show Arrigo’s “state of mind at the time she took the vacation. That’s all.” Although there was no evidence Link was aware of the conversation, Arrigo argued that because Link and Cook spoke about many business-related matters, the jury could assume that Cook must have disclosed this conversation to him as well.

The relevant question is what Link believed when he decided to fire Arri-go. “The proper inquiry mandates looking at [the plaintiffs] job performance through the eyes of her supervisors at the time of her suspension and termination.” Gates v. Caterpillar, Inc., 513 F.3d 680, 689 (7th Cir. 2008). The pretext inquiry asks not whether an employer correctly believed an employee was performing poorly, but rather whether the employer honestly believed so. Liu v. Cook Cty., 817 F.3d 307, 316 (7th Cir. 2016). So Arrigo’s state of mind and whether Arrigo believed she could take the vacation do not matter here. In addition, with no evidence that Cook had disclosed the conversation in question to Link, it was not an abuse of discretion for the district court to preclude testimony on the subject.

For similar reasons, the district court did not abuse its discretion when it excluded testimony from a manager and two of Arrigo’s subordinates who she says would have testified about her positive performance as a general manager of Link Stop. The district court limited their testimony about Arrigo’s performance and their opinions of it to what they communicated to Link and Cook. Again, these employees’ belief as to whether Arrigo was a good manager are not relevant here. Link’s honest belief is what matters. And the question is not whether Link was correct to believe that Arrigo performed poorly, but rather whether he honestly believed that she did. See Little v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004).

Arrigo also contends that she was wrongly precluded from introducing evidence about her arrival and regular hours. But Krista Schaaf testified that she and Arrigo drove to work together at 9:00 a.m., that they typically arrived at the Bond Lake office around 10:30 a.m., and that Link saw them when they arrived. The district court precluded testimony from Schaaf about how Schaaf and Arrigo spent the time between 9:00 a.m. and their arrival at the Bond Lake office, but Arrigo testified about how she spent the time. She said she arrived at Grandma Link’s Restaurant between 9:00 and 10:00 a.m., would then go to Link Stop, and would arrive at the Bond Lake office around 10:00 or 11:00 a.m. Precluding further testimony on the subject was not an abuse of discretion.

While Arrigo also argues that she should have been permitted to testify further about her condition, her treatment, and the underlying reasons for her FMLA leave, the district court did not abuse its discretion here either. Arrigo testified to the jury that she had an anxiety attack that resulted in emergency medical care, had a prescription for anxiety medication, and was instructed by her doctor to take some time away from work. Significantly too, the parties had stipulated before trial that Arrigo’s anxiety condition was a “serious health condition” under the FMLA that entitled her to leave, and the jury was instructed on this fact. The district court acted within its discretion when it excluded additional testimony about Arrigo’s condition when the only issue for the jury was whether Link fired her because of her use of protected leave.

Arrigo’s brief contains a list of other evidence that she believes was improperly excluded from trial as well. We do not find that the exclusion of any of the other evidence warrants a new trial. Cf. United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (perfunctory and undeveloped arguments are waived).

B. Denial of Leave to Amend Complaint to Add Title VII and ADA Claims

Arrigo’s complaint in federal district court did not include claims under Title VII or the ADA. Four months after the deadline for amendment of the pleadings that had been jointly proposed by the parties, Arrigo filed a motion for leave to amend her complaint to add claims that the defendants had discharged and discriminated against her on the basis of her sex and pregnancy, in violation of Title VII, and also on the basis of a disability, in violation of the ADA. We review the district court’s denial of that motion for an abuse of discretion. Bell v. Taylor, 2016 WL 3568139, at *3 (7th Cir. July 1, 2016). We may affirm the district court’s denial of a motion for leave to amend on any ground that is supported by the record. Sanders v. Venture Stores, Inc., 56 F.3d 771, 773-74 (7th Cir. 1995).

Delay alone is usually not sufficient to deny a motion for leave to amend. See Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 793 (7th Cir. 2004). But when the motion for leave to amend is filed after the deadline for such motions, “the generous standard in Rule 15(a)(2) for allowing amendments ‘is in some tension with’ Rule 16(b)(4), which governs scheduling orders and requires a showing of good cause to justify modifying time limits.” Adams v. City of Indianapolis, 742 F.3d 720, 734 (7th Cir. 2014) (quoting Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011)); see Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”). “To amend a pleading after the expiration of the trial court’s scheduling order deadline to amend pleadings, the moving party must show ‘good cause.’ ” CMFG Life Ins. Co. v. RBS Secs., Inc., 799 F.3d 729, 749 (7th Cir. 2015) (quotation omitted). We have upheld denials of motions for leave to amend filed months after the deadline where the plaintiffs did not demonstrate good cause. See Bell, 2016 WL 3568139, at *4 (eight months); Adams, 742 F.3d at 733 (six months).

Arrigo explains that she did not seek to add Title VII and ADA claims earlier because she was pursuing her sex and disability discrimination claims at the state administrative level, along with claims under Wisconsin’s Family and Medical Leave Act. Arrigo says she learned in early 2013 that the defendants did not employ a sufficient number of employees to be covered by Wisconsin’s FMLA (the defendants assert that they had argued since 2011 that the Wisconsin FMLA did not cover them), and that she then withdrew all her claims that were pending before the state administrative forum. She asked the defendants to stipulate to allowing her to add Title VII and ADA claims in the instant lawsuit, but they declined. She then filed a motion requesting leave to amend in the district court to add federal claims to the current lawsuit. She maintains that all along, she was trying to efficiently bring her claims.

We have addressed similar situations before, when for example a plaintiff argues that he was not able to obtain a right-to-sue letter from the EEOC, see 42 U.S.C. § 2000e — 5(f)(1), before the statute of limitations expired on another claim. And we have said, for many years now, “Plaintiffs in the same situation as [here] — seeking relief under § 1983 and Title VII or other federal employment discrimination statutes for the same adverse employment action — routinely ask district courts to stay the first lawsuit until they obtain a right-to-sue letter.” Czarniecki v. City of Chicago, 633 F.3d 545, 550 (7th Cir. 2011); see Barr v. Bd. of Trs. ofW. Ill. Univ., 796 F.3d 837, 840 (7th Cir. 2015); Palka v. City of Chicago, 662 F.3d 428, 438 (7th Cir. 2011); Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 339 (7th Cir. 1995) (stating plaintiff “could have delayed the filing of his first suit or requested that the court postpone or stay the first case'. What he cannot do, as he did here, is split causes of action and use different theories of recovery as separate bases for multiple suits.”); Herrmann v. Cencom Cable Assocs., 999 F.2d 223, 225 (7th Cir. 1993).

Arrigo could have taken the same course here. She knew about her sex and discrimination claims from the outset but gives no good cause for why she did not seek a stay, a course of action we have suggested for many years. Arrigo’s decision not to bring a motion for leave to amend earlier or to seek a right-to-sue letter earlier was a tactical litigation decision. Indeed, the parties filed a joint Federal Rule of Civil Procedure 26(f) pretrial report that noted the pending state claims, but nonetheless said, “The parties do not anticipate amending the pleadings.” A litigation decision to pursue claims in another forum without seeking a stay in federal court is not good cause for seeking leave to amend after the deadline to do so.

The defendants also assert that had the motion to add the new claims been granted, they would have needed additional discovery and therefore been prejudiced. The FMLA claim concerned only the use of leave, while the disability claim dealt with mental health and the Title VII claim concerned Arrigo’s pregnancy. The defendants would have needed additional depositions of employees, many of whom are no longer with the company, regarding how they were treated in instances of disability and pregnancy. The discovery on damages also would have been different, as FMLA damages don’t include emotional distress and punitive damages, while ADA and Title VTI claims do. See Xin Liu v. Amway Corp., 347 F.3d 1125, 1133 n.6 (9th Cir. 2003); Cianci v. Pettibone Corp., 152 F.3d 723, 728-29 (7th Cir. 1998). We decline to set aside the district court’s decision denying leave to amend to add claims after the deadline.

C. Dismissal of Second Lawsuit

After the district court denied Arrigo’s motion for leave to amend to add Title VII and ADA claims, she filed a new lawsuit asserting those same claims. Arrigo contests the district court’s dismissal of this second suit. We review a district court’s grant of a motion to dismiss de novo. Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016).

Arrigo argues that the district court dismissed her second lawsuit on res judicata grounds and that doing so was improper because there was not a final judgment on the merits. Res judicata, and in particular claim preclusion, bars claims that were litigated or could have been litigated in a previous proceeding when three elements are met: (1) identity of the parties or their privies between the two actions; (2) a final judgment on the merits in an earlier proceeding; and (3) identity of the causes of action. Palka, 662 F.3d at 437. The doctrine “promotes predictability in the judicial process, preserves the limited resources of the judiciary, and protects litigants from the expense and disruption of being haled into court repeatedly.” Id.

While our circuit has not yet decided whether the denial of a motion to amend constitutes a decision on the merits for res judicata purposes, other circuits have uniformly found that res judicata applies in such a situation. Christman v. Saint Lucie Cty., Fla., 509 Fed.Appx. 878, 879 (11th Cir. 2013) (unpublished); Hatch v. Trail King Indus., Inc., 699 F.3d 38, 45-46 (1st Cir. 2012); King v. Hoover Grp., Inc., 958 F.2d 219, 222-23 (8th Cir. 1992) (“It is well settled that denial of leave to amend constitutes res judicata on the merits of the claims which were the subject of the proposed amended pleading.”); see also, e.g., Huck v. Dawson, 106 F.3d 45, 49-50 (3d Cir. 1997). Commentators agree as well:

An order that denies leave to amend the pleadings to advance an additional part of a claim partially asserted might seem to fall within the principle that a plaintiff should be free to bring a second action on a theory that could not be advanced in the first action. It appears well-settled, however, that claim preclusion bars a second action on the part excluded from the first action. This result is sound. The abstract theory that amendment should be freely allowed is widely honored in practice. There is likely to be good reason when the court that has control of the first action concludes that a party should not be allowed to advance matters so closely related to the action as to be part of a single claim.

18 Charles Alan Wright et al., Federal Practice and Procedure § 4412 (2d ed. 2016).

To allow the second lawsuit to continue would render meaningless our decision to uphold the district court’s denial of Arrigo’s motion for leave to amend to add the same claims. Yet “[i]t is widely accepted that appeal is the plaintiffs only recourse” when a motion to amend is denied as untimely. Johnson v. SCA Disposal Servs. of New Eng., Inc., 931 F.2d 970, 976 (1st Cir. 1991).

The district court’s reasoning here was sound:

... it makes no sense to allow this ease to proceed further. Trial in [Arrigo’s first lawsuit] is scheduled for May 2014 while .trial in [Arrigo’s second lawsuit] is scheduled for February 2015. Thus, if I concluded in this order that [the first lawsuit] could not have preclusive effect until judgment was entered in that first case, dismissal of [the second case] would be inevitable, just delayed. Thus, denying defendant’s motion on the grounds that no judgment has been entered yet would serve no purpose but to waste more resources of both the parties and the court.
Moreover, if plaintiff were allowed to litigate a new lawsuit now, it would undermine the decision denying plaintiffs motion for leave to amend her complaint. I • denied the motion because it was untimely and would cause unfair prejudice to defendant. Forcing defendant to litigate claims in two different lawsuits proceeding on different schedules would be even more prejudicial than permitting the untimely amendment.

And to the extent Arrigo is arguing that dismissal was premature for lack of a final judgment, see Sklyarksy v. MeansKnaus Partners, L.P., 777 F.3d 892 (7th Cir. 2015), it is unclear what relief she is seeking. There is now unquestionably a final judgment in the first suit, and as we explained recently in an analogous situation:

Reversing the district court’s dismissal of the 2014 Case would have no practical effect. It is undisputed that at this point, the district court has entered final judgment for defendants. Thus, even if we were to remand the 2014 Case to the district court, the court could simply reissue the same opinion dismissing the 2014 Case based on res judicata. We decline Bell’s suggestion that we should use the limited resources of the judiciary in this manner. Therefore, we affirm the district court’s dismissal of the 2014 Case.

Bell, 2016 WL 3568139, at *6.

Most importantly, allowing Arrigo to proceed here would result in the very prejudice and inefficiency that the denial of the untimely amendment, which we upheld, was intended to avoid. To rule otherwise would undermine the principles animating the doctrines of res judicata and claim splitting, as well as our decision upholding on appeal the denial of the motion for leave to amend. See Barr, 796 F.3d at 840-41.

III. CONCLUSION

The judgment of the district court is affirmed.

      . Arrigo then followed up with Cook, who said, “If I were you, I would just go.” The juiy did not hear about this exchange with Cook.

      . If the jury answered "yes,” it would have then had to answer whether the defendants had proven that "Defendant Link would have terminated Link even if she had not taken or requested medical leave in the fall of 2010 or had not notified him that she would need to take maternity leave.” Because the jury answered "no” to the first question, it did not reach the second question.