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June 28, 1994



The opinion of the court was delivered by: CHARLES R. NORGLE

CHARLES R. NORGLE, SR., District Judge:

 Before the court is the Motion to Dismiss of Defendants Park Ridge Public Library Board and City of Park Ridge ("Park Ridge"). For the reasons stated below, the motion is denied.


 The United States Equal Employment Opportunity Commission ("EEOC") filed a complaint with the court in January 1994. EEOC alleges that Park Ridge terminated two of its employees in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"). 29 U.S.C. §§ 621-634. The EEOC claims that Park Ridge fired Carl Ostling ("Ostling") in December 1990 because he objected to the proposed discharge of Joseph Bawolek ("Bawolek"). EEOC also claims that in May 1991 Park Ridge fired Bawolek, who was seventy-nine years old at the time, because of his age.


 On a motion to dismiss, the court accepts all well-pleaded factual allegations as true, as well as all reasonable inferences drawn from those allegations. Mid America Title Co. v. Kirk, 991 F.2d 417, 419 (7th Cir. 1993). Because federal courts simply require "notice pleading," this court must construe pleadings liberally. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1163 (1993). A complaint's mere vagueness or lack of detail is not sufficient to justify a dismissal. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). A complaint need not specify the correct legal theory or point to the right statute to survive a motion to dismiss. Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134-35 (7th Cir. 1992) (citing Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992)).

 In Early v. Bankers Life and Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992), the Seventh Circuit Court of Appeals explained how liberal notice pleading is in a motion to dismiss. When defending against a motion to dismiss, a plaintiff may "allege without evidentiary support any facts he pleases that are consistent with the complaint, in order to show that there is a state of facts within the scope of the complaint that if proved (a matter for trial) would entitle him to judgment." Id. The court will interpret ambiguities in a complaint in plaintiff's favor, not defendants. Canedy v. Boardman, 16 F.3d 183, 188 (7th Cir. 1994). In fact, federal court standards for notice pleading are so lenient that, on appeal, the Seventh Circuit will allow an appellant to present facts which were not in the district court record--or an "unsubstantiated version of the events"--to demonstrate that the district court should not have dismissed the complaint. Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992).

 In construing reasonable inferences, however, the court need not stretch allegations beyond their sensible and reasonable implications. Chan v. City of Chicago, 777 F. Supp. 1437, 1440 (N.D. Ill. 1991). Moreover, although a party fails to state a claim upon which relief may be granted only if that party can prove no set of facts upon which to grant legal relief, Ross v. Creighton Univ., 957 F.2d 410, 413 (7th Cir. 1992), that party must allege all elements of the asserted cause of action necessary for recovery. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986).

 The court's first concern is the proper characterization of Park Ridge's motion. Because materials outside the pleading were submitted in the briefing process, the court should consider whether to treat Park Ridge's Motion to Dismiss as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(b)(6):

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motions shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .

 Fed. R. Civ. Pro. 12(b)(6). When considering materials outside the pleadings, it is in the court's discretion to characterize a motion as one for summary judgment. See St. Paul Ins. of Bellaire v. Afia Worldwide Ins., 937 F.2d 274, 277 (5th Cir. 1991) ("When material outside the pleadings is considered, however, the court will generally exercise its discretion to treat the motion as one for summary judgment."). For purposes of this motion, the court excludes from consideration those materials that are outside the four corners of the complaint, and treats Park Ridge's motion as a motion to dismiss.

 The court's second concern is also procedural. The issue is whether Park Ridge's main assertion--that EEOC violated the statute of limitations pursuant to 29 U.S.C. § 626(e)--may be presented in a motion to dismiss. The Federal Rules of Civil Procedure provide that a statute of limitations defense is an affirmative defense which should be set forth "in pleading to a preceding pleading." Fed. R. Civ. Pro. 8(c). However, "the running of the statute of limitations, which is an affirmative defense, will be an appropriate ground for dismissal if it 'clearly appears on the face the complaint.'" Rylewicz v. Beaton Services, Ltd., 698 F. Supp. 1391 (N.D. Ill. 1988) (citations omitted); see Vaughan v. Grijalva, 927 F.2d 476, 479 (9th Cir. 1991); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); King v. Federal Deposit Ins. Corp., 785 F. Supp. 58, 59 (D. Vt. 1992) (citing 2A Moore and Lucas, Moore's Federal Practice P 12.10 (2d ed. 1991)). In order to grant a motion to dismiss on limitations grounds, the complaint must facially show noncompliance with the limitations period. Morgan v. Kobrin Securities, Inc., 649 F. Supp. 1023 (N.D. Ill. 1986). Because the face of the complaint in this matter does evince a limitations issue, Park Ridge's defense is appropriately raised in its motion to dismiss.

 Park Ridge argues that 29 U.S.C. § 626(e) (referring to 29 U.S.C. § 255) provides for a two year limitations period which EEOC violated by filing this action in January 1994 although the two incidents complained of occurred in December 1990 and May 1991. In its Response, EEOC argues that it may avoid the limitations bar by establishing that Park Ridge acted willfully, which would extend the limitation period to three ...

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