The opinion of the court was delivered by: JOHN LIFLAND, Senior District Judge
MEMORANDUM AND ORDER CONVERTING MOTION TO DISMISS INTO SUMMARY
Plaintiff Richard Forsatz ("Forsatz") filed a one-count
Complaint in this Court on May 16, 2005, alleging wrongful
termination in violation of the Age Discrimination in Employment
Act ("ADEA"), 29 U.S.C. § 623 et seq. In the Complaint,
Plaintiff claims that he was fired from his employment on June 3,
2004 for unspecified reasons, and that his position was given to
someone sufficiently younger to permit the inference of age
discrimination. Defendant The Contributorship Companies
("Contributorship") moved to dismiss the Complaint pursuant to
Fed.R.Civ.P. 12(b)(6). Defendant asserts the affirmative
defense of the statute of limitations as the basis for its
motion. See Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380
, 1384 n. 1 (3d Cir. 1994) (noting that although "the
language of Fed.R.Civ.P. 8 (c) indicates a statute of
limitations defense cannot be used in the context of a Rule
12(b)(6) motion to dismiss, an exception is made where the complaint facially shows noncompliance with the limitations
period and the affirmative defense appears clearly on the face of
the pleading"). Specifically, Defendant argues that Plaintiff not
only failed to file a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC") as required by
29 U.S.C § 626(d), but also filed this action out of time, beyond
the statutory 300-day limitations period prescribed therein.
In opposition to the Defendant's motion, Plaintiff admits that
he failed to file with the EEOC as required by law and also filed
the instant Complaint out of time, but nevertheless contends that
principles of equitable tolling apply to excuse his
non-compliance with the statutory limitations provision at issue.
See Seitzinger v. Reading Hospital & Medical Ctr.,
165 F.3d 236, 240 (expressing a "willingness to invoke equitable tolling
in a number of circumstances: when the defendant has actively
misled the plaintiff; when the plaintiff in some extraordinary
way was prevented from asserting her rights; or when the
plaintiff timely asserted her rights in the wrong forum").
Defendant replies by pointing to certain factual information
which, it claims, contradicts Plaintiff's arguments.
Consideration of this factual dispute on a Rule 12(b)(6) motion
to dismiss is wholly improper. If on a Rule 12(b)(6) motion
"matters outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all parties
shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b).
The parties must have notice of this conversion. Rose v.
Bartle, 871 F.2d 331, 340 (3d Cir. 1989). Notice must be
"unambiguous" and must "fairly apprise the parties that the
court intends to convert the motion. Id. at 341-42. Although
this notice need not be express, the Court of Appeals has
recommended that the District Court provide express notice. In
re Rockefeller Ctr. Prop., Inc. Securities Litig., 184 F.3d 280,
288 (3d Cir. 1999).
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56. In evaluating a
summary judgment motion, a court must "draw all reasonable
inferences in favor of the non-moving party." Armour v. County
of Beaver, PA, 271 F.3d 417 (3d Cir. 2001) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). A
motion for summary judgment requires the non-moving party to set
forth specific facts showing that there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Albright v. Virtue, 273 F.3d 564, 570 n. 6 (3d Cir.
2001). The burden of showing that no genuine issue of material
fact exists rests initially on the moving party. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986); Huang v. BP Amoco Corp.,
271 F.3d 560, 564 (3d Cir. 2001). Once the moving party has made a properly supported motion for summary judgment, the burden
shifts to the non-moving party to "set forth specific facts
showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 242.
Here, the parties have identified a dispute suitable for
disposition by summary judgment; namely, whether material facts
exist to support Plaintiff's position that the statute of
limitations should be equitably tolled. Therefore, the Court
notifies the parties that the pending Rule 12(b)(6) motion is
converted to a Rule 56 summary judgment motion. Discovery may be
necessary. The Court will permit the parties to take pertinent
discovery to be overseen by Magistrate Judge Falk. Within a
reasonable time period, the parties shall augment their existing
briefs and supporting papers to address the issue articulated
Accordingly, IT IS on this 19th day of October 2005
ORDERED that Defendant's motion to dismiss pursuant to Rule
12 (b)(6) is converted to a motion for summary judgment pursuant
to Fed.R.Civ.P. 56, and it is further
ORDERED that pertinent discovery may be taken with respect to
the factual basis for asserting principles of equitable tolling.
Judge Falk is requested to supervise said discovery.
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