Hickey v. Arkla Industries Inc‪.‬

In this case we confront the recurring issue of the adequacy of notice when a trial court converts a motion to dismiss for failure to state a claim into a motion for summary judgment by considering matters outside the pleadings.1 Once again, we hold that where the motion to dismiss is converted into a motion for summary judgment, the notice and hearing requirements of Federal Rules of Civil Procedure 12(b) and 56(c) must be followed. This case was a suit brought by the plaintiff under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. In the case at bar the trial judge notified the parties on January 25, 1978 that he would hold an informal conference on February 27 to hear argument on the defendants' motion to dismiss. The judge also instructed the plaintiff to submit a more detailed response to defendants' motion. On February 23, the plaintiff filed that response. On that same day, the defendants filed a brief in support of their motion. The brief made numerous references to plaintiff's deposition in support of the motion to dismiss. On the day of the hearing, plaintiff filed a rebuttal brief, also citing numerous passages from his deposition to buttress his legal position. The plaintiffs' deposition included testimony that favored his contention and some that militated against his position.