But we cannot reach these issues. The plaintiff in opposing the motion to dismiss alleges that the motion cannot be granted since the ground for the motion is the bar of the statute of limitations, an affirmative defense which must be raised in an answer, citing Weber v. United States, D.C.W.D.N.Y.1948, 8 F.R.D. 161. We think that plaintiff's assertion is in error. The Eastern District of Pennsylvania has held otherwise. Sikes v. United States, D.C.1948, 8 F.R.D. 34. Cf. Continental Collieries v. Shober, 3 Cir., 1942, 130 F.2d 631. A motion to dismiss for failure to act within the limitations period is grounded on Rule 12(b)(6), Fed.R.Civ.Proc., 28 U.S.C., 'failure to state a claim upon which relief can be granted,' since averments of time are material under Rule 9(f). Berry v. Chrysler Corporation, 6 Cir., 1945, 150 F.2d 1002. Thus, the sufficiency of the complaint may be attacked under Rule 12(b). But a distinction has been made in the decisions to the effect that the sufficiency of the complaint may be attacked only if the defect appears on the face of the complaint. See, e.g., Sherwin v. Oil City National Bank, D.C.W.D.Pa.1955, 18 F.R.D. 188, 194, affirmed 3 Cir., 1956, 229 F.2d 835. The distinction in the case at bar favors the plaintiff, since the face of the complaint does not indicate that the claim was not duly filed. Indeed, the complaint states the contrary. See note 1, supra.
However, in 1946, Rule 12(b) was amended by the addition of the sentence: '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 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.' Here, the defendant has presented matters outside the pleadings and the record in support of its motion to dismiss, as it must do in these circumstances.
However, we cannot pass on the merits of the motion for summary judgment at this time. The supporting papers for a motion for summary judgment must be verified, and must be in the form of affidavits, depositions, or admissions. The statement of facts in defendant's brief and the letter exhibits attached to the brief
are insufficient as evidence. Accordingly, the motion will be denied without prejudice with leave to defendant to submit affidavits or other papers in support of its motion.
The plaintiff has also argued, in reply to defendant's motion to dismiss, that his pleading entitles him to have the issue of whether a claim was duly filed within the limitations period decided by trial and that it should not be denied by proceedings in the nature of a summary judgment, citing Frederick Hart & Co. v. Recordgraph Corporation, 3 Cir., 1948, 169 F.2d 580, and we take it that the plaintiff would pursue the same argument although defendant submits its proof in appropriate fashion by affidavits, etc. This case may present a situation different from the cited case. Among other possibilities, the allegation by the plaintiff that a claim was timely filed appears to involve a mixed question of fact and law, and if the parties reach agreement or demonstrate that there is no dispute as to the basic facts, e.g., as to exactly what was filed with the Post Office Department, the only question remaining may be one of law and the case ripe for summary judgment. We need not and do not express an opinion on this point, but if the defendant pursues further the matter of summary judgment, it will then be necessary for the court to inquire whether in the posture of the case as it will then exist, a motion for summary judgment may appropriately be granted.
Accordingly, the defendant's motion will be denied without prejudice.
An appropriate order may be submitted.