DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

CHARLES R. NORGLE, Sr., District Judge.

Now comes Defendant, CATERPILLAR INC. NON-CONTRIBUTORY PENSION PLAN ("the Plan" or "Defendant"), by its attorneys, Seyfarth Shaw LLP, and pursuant to Federal Rule of Civil Procedure 12(c), respectfully submits this Motion for Judgment on the Pleadings on the basis res judicata. The grounds for this Motion are set forth below and are explained more fully in Defendant's accompanying Memorandum:

1. Defendant asserted the affirmative defense of res judicata in its Answer. In so doing, Defendant specifically alluded to — and attached public records of — the prior court action that bars Plaintiff's current suit.

2. Because "res judicata is an affirmative defense, [a] defendant should raise it [in its answer] and then move for judgment on the pleadings under Rule 12(c)." Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010).

3. "The three requirements for res judicata under federal law are: (1) an identity of the parties or their privies; (2) an identity of the causes of action; and (3) a final judgment on the merits." Highway J Citizens Group v. U.S. Dept. of Transp., 456 F.3d 734, 741 (7th Cir. 2006) (internal quotations and citations omitted).

4. Stewart v. Caterpillar Inc., No. 1:12-cv-05328 (N.D. Ill. dismissed Nov. 30, 2012) (Stewart I) was brought against Caterpillar Inc. — the Plan Sponsor and Plan Administrator — and was dismissed with prejudice over two years ago.

5. "A[n] order of dismissal with prejudice `is a final judgment on the merits.'" Local 25 SEIU Welfare Fund v. Great Lakes Maintenance & Security Corp., 55 Fed. Appx. 373, 374 n.2 (7th Cir. 2002) (citing Phillips v. Shannon, 455 F.2d 460, 462 (7th Cir. 1971)).

6. A cause of action has identity with a past suit if it "emerges from the same core of operative facts." Highway J Citizens Group, 456 F.3d at 741 (citation omitted). Furthermore, the fact that the two actions sought similar types of relief "ought to be given significant weight in determining whether there is an identity between the plaintiffs' cause of action for res judicata purposes." Id.

7. The complaint filed in Stewart I alleges the same facts asserted in the complaint in this action and these facts form the basis of Plaintiff's claims in both lawsuits. Moreover, both suits sought the same relief.

8. Two parties are in privity for the purpose of res judicata if they have a commonality such that they "sufficiently represent" each other's interest. Studio Art Theatre of Evansville, Inc. v. City of Evansville, 76 F.3d 128, 131 (7th Cir. 1996) (citing Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 301 (7th Cir. 1985)).

9. In this case, Caterpillar Inc. — sole defendant in Stewart I — is the Plan Sponsor and Plan Administrator. Therefore, the defendants in both actions share a commonality of interests.

WHEREFORE, Defendant respectfully requests that the Court grant its Motion for Judgment on the Pleadings and award Defendant its fees and costs incurred in preparing this motion.