Stewart v. International Alliance of Theatrical Stage Employees Union AFL-CIO et al

Filing 24

ORDER. Defendants' motion to dismiss for failure to state a claim 18 is denied. Signed by the Honorable Jorge L. Alonso on 4/6/2015. Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BENNY L. STEWART,
Plaintiff,
v.
INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES
UNION AFL-CIO, THEATRICAL
STAGE EMPLOYEES LOCAL 2,
DANIEL KELLY KERINS, CRAIG
CARLSON, THOMAS CLEARY,
THOMAS HERMANN, THOMAS
KINSELLA, RICHARD CONRAD,
JEFFERY SCHNOEBELEN, and
WILLIAM RILEY, JR.,
Defendants.

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No. 14 C 7472
Judge Jorge L. Alonso

ORDER
Plaintiff sues defendants for their alleged violations of Title VII and the Labor Management
Relations and Disclosure Act. Defendant Theatrical Stage Employees Union Local 2 has filed a
Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, arguing that this suit is barred by res
judicata because it is duplicative of one dismissed by Judge Zagel. See Stewart v. Theatrical Stage
Employees Union Local 2, No. 13 C 538 (N.D. Ill.). The doctrine of res judicata precludes a party
from relitgating issues that were or could have been raised in a prior suit between the same parties
that ended in a final judgment on the merits. Smith v. City of Chi., 820 F.2d 916, 917 (7th Cir.
1987). The doctrine applies if there was “(1) a final judgment on the merits in an earlier action, (2)
an identity of the cause of action in both the earlier and later suit, and (3) an identity of parties or
privies in the two suits.” Id.

However, res judicata is an affirmative defense, see Fed. R. Civ. P. 8(c), and “[o]rders under
Rule 12(b)(6) are not appropriate responses to the invocation of defenses, for plaintiffs need not
anticipate and attempt to plead around all potential defenses.” Xechem, Inc. v. Bristol-Myers Squibb
Co., 372 F.3d 899, 901 (7th Cir. 2004). “Only when the plaintiff pleads [him]self out of court – that
is, admits all the ingredients of an impenetrable defense – may a complaint that otherwise states a
claim be dismissed under Rule 12(b)(6).” Id. It is not clear from the face of plaintiff’s complaint
that he is asserting the same claims here as he did in the suit before Judge Zagel or that the
additional defendants in this suit are in privity with Local 2, which was the only defendant in the suit
before Judge Zagel. Discovery may well establish that these elements are met, but because they are
not apparent from the face of the complaint, Local 2’s motion to dismiss [18] is denied.
SO ORDERED.

ENTERED: April 6, 2015

__________________________________
HON. JORGE ALONSO
United States District Judge

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