Issue: When can a statute of limitations defense be asserted on a Rule 12(b)(6) motion to dismiss for failure to state a claim?
| Area of Law: | Litigation & Procedure |
| Keywords: | Statute of limitations; Motion to dismiss for failure to state a claim |
| Jurisdiction: | Federal |
| Cited Cases: | None |
| Cited Statutes: | Rule 12(b)(6) |
| Date: | 01/01/2009 |
A statute of limitations defense cannot be asserted in a Rule 12(b)(6) motion unless “the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994); see Barry Aviation, Inc. v. Land O’Lakes Municipal Airport Comm’n, 377 F.3d 682, 688 (7th Cir. 2004).
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