Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. F 85-311-William C. Lee, Judge.
Wood, Jr., Coffey, and Manion, Circuit Judges.
The plaintiff-appellant John W. Farries appeals the district court's grant of summary judgment in favor of the defendant-appellee Stanadyne. We affirm.
According to the appellant's (John W. Farries') allegations in his complaint, he was employed as a laborer and "washer grader operator" with Standayne from November, 1968 until July 7, 1970, when he left Stanadyne to join the United States Air Force.*fn1 Stanadyne, on the other hand, submitted an affidavit stating that Farries worked for Stanadyne "until July 2, 1970, when he was terminated for failing to report to work."*fn2 Farries served in the United States Air Force until September 20, 1973, reenlisted, and then served until August 6, 1974.*fn3 In October 1974*fn4 and several times subsequently, Farries applied for reinstatement as a "washer grader operator" at Stanadyne but was denied. According to the Anderson affidavit Farries was denied reinstatement because:
"Review of Company records show that when Mr. Farries sought to return to employment with Stanadyne following military service, he was not rehired because of his past employment record, including the circumstances of his termination, and a provision of the then applicable collective bargaining agreement."
On March 23, 1977, the plaintiff's discharge from the United States Air Force was upgraded to "honorable" retroactive to August 6, 1974. He sought reinstatement with the appellee but was again denied. Wilson Given, who was Manager of Industrial Relations for Stanadyne in the late 1970s had several conversations with Farries when the appellant sought reinstatement with Stanadyne. According to the Anderson affidavit submitted by Stanadyne, "Mr. Given was the only employee of Stanadyne with knowledge of what occurred in those conversations." Given died on May 9, 1980.
Shortly after the March 23, 1977, upgrading of Farries' discharge from the Air Force, he was denied reinstatement with Stanadyne. At this time he requested the United States Department of Labor investigate his claim of unlawful refusal of reinstatement to his prior employment.*fn5 On December 6, 1978, the United States Department of Labor notified Stanadyne of Farries' claim and until June 19, 1980, Stanadyne continued to discussions and correspondence wit representatives of the Department of Labor with Farries concerning Farries' claim. In June of 1980, the Department of Labor informed the appellant that its investigation of his claim was concluded without a determination of fact and advised him of his right to pursue his claim in court.
Farries states he attempted from June 1980 until September 1982, without success, to employ counsel to pursue his claim against Stanadyne for unlawful denial of reinstatement. On September 23, 1982, the appellant filed an affidavit of financial status and pauper affidavit seeking the appointment of counsel in the United States District Court for the Southern District of Indiana, and on October 18, 1982, the district judge appointed counsel to represent Farries.
On March 30, 1983, Farries filed an action alleging that he had been unlawfully denied reinstatement pursuant to 38 U.S.C. § 2021. On June 20, 1983, Stanadyne made a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure on grounds of improper venue and laches. Attached to the motion was the affidavit of Arlan Anderson, Stanadyne's Manager of Industrial Relations. On July 19, 1985, the trial judge, after finding improper venue in the Southern District of Indiana, transferred the case to the United States District Court for the Northern District of Indiana.
On September 10, 1985, the district court entered a pretrial conference order stating:
"There is presently pending a motion to dismiss filed by defendant, which the parties agree is not fully briefed. The court will consider the rule on this motion within thirty (30) days from the date of this order. In the event the motion is denied, discovery shall then proceed and discovery shall terminate in this cause on January 10, 1986. A final pre-trial conference will be held in this cause on February 13, 1986, at 1:15 p.m. This cause is set for trial on March 17, 1986, at 10:00 a.m."
On October 1, 1985, without giving notice to the parties the district court converted Stanadyne's motion to dismiss into one for summary judgment stating:
"Although Stanadyne denominates its motion as a motion to dismiss, it is clear that its argument relies heavily on the affidavit of Arlan G. Anderson, its Manager of Industrial Relations. Proper treatment of the motion requires the court to refer to and rely upon the Anderson affidavit as well. When matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss will be converted into a motion for summary judgment. Fed. R. Civ. P. 12(b)(6)."
Relying on our decision in Lingenfelter v. Keystone Consolidated Industries, 691 F.2d 399 (7th Cir. 1982) the trial judge found that Farries' claim was barred by laches finding that each of the two elements set forth in our decision in Lingenfelter necessary to support a finding of laches were present: (1) a lack of diligence on the part of Farries in pursuing his claim and (2) Stanadyne suffered prejudice as a result of Farries' lack of diligence. As to Farries' lack of diligence in pursuing his claim, the district found that Farries "over eight year delay" was "inexcusable" and thus the first prong of the laches test under Lingenfelter was satisfied. Regarding the second factor necessary for laches, prejudice to Stanadyne as a result of Farries' lack of diligence, the trial judge found that Farries' delay in filing his claim prejudiced Stanadyne in that (1) it deprived Stanadyne of the deceased Given's testimony and any evidence he might provide since he expired in 1980 and (2) if Stanadyne were now required to reimburse Farries for lost wages, after having paid another employee for eight years, it would have to pay twice for the same labor caused by Farries' delay in bringing the suit. The court concluded that Farries "raised no issues which would amount to a material issue of fact" and granted Stanadyne summary judgment.
On appeal Farries makes two arguments: (1) the trial judge erred in failing to given him notice before converting Stanadyne's 12(b) motion into one for summary judgment and (2) the court ...