Gordon v. Saul
MEMORANDUM AND ORDER Directing the Commissioner to file a Memorandum of Law. Signed by Magistrate Judge Deborah L. Boardman on 11/16/2020. (bas, Deputy Clerk)
Case 1:20-cv-01640-DLB Document 13 Filed 11/16/20 Page 1 of 2
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
DEBORAH L. BOARDMAN
UNITED STATES MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
Fax: (410) 962-2577
November 16, 2020
LETTER TO COUNSEL
Shawna G. v. Saul
Civil No. DLB-20-1640
The Commissioner moved to dismiss this case “pursuant to Rule 12 of the Federal Rules
of Civil Procedure” on October 23, 2020. ECF 11. Though the Commissioner did not explicitly
cite Rule 12(b)(6), his affirmative defense that plaintiff “failed to state a claim upon which relief
can be granted” by untimely filing suggests an intention to move for dismissal under 12(b)(6). Id.;
see Richards v. Berryhill, 759 F. App’x 187, 188 n.1 (4th Cir. 2019) (mem.) (per curiam).
The Commissioner attached to his motion matters outside the pleadings, including the
relevant Appeals Council denial, Administrative Law Judge decision, and a declaration from Janay
Podraza, Chief of Court Case Preparation and Review Branch 2 of the Office of Appellate
Operations. ECF 11-2. The Commissioner did not style the motion as a Rule 12 or in the
alternative Rule 56 motion. See ECF 11. Rule 12(d) prohibits, with few exceptions, consideration
of matters outside the pleadings when resolving a 12(b)(6) motion without converting the motion
to one under Rule 56. See Zak v. Chelsea Therapeutics Int’l Ltd., 780 F.3d 597, 607 (4th Cir.
Separately, both parties argued about the potential applicability of the doctrine of equitable
tolling. ECF 11; ECF 12. The Fourth Circuit recently clarified the rule for equitable tolling is a
two-part test: “[A] plaintiff must establish (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and prevented timely filing.” Edmonson
v. Eagle Nat’l Bank, 922 F.3d 535, 551 (4th Cir. 2019) (internal citations omitted) (internal
quotation marks omitted).
Accordingly, this Court orders the Commissioner to file a memorandum of law, citing
authority supporting his request to resolve his motion under Rule 12, or a statement of his intention
to file his motion as one under Rule 56 in the alternative. Additionally, both parties may file
supplemental briefing on whether, in light of Edmonson, the doctrine of equitable tolling applies
in the instant case. Filings should be submitted no later than December 16, 2020.
Case 1:20-cv-01640-DLB Document 13 Filed 11/16/20 Page 2 of 2
Despite the informal nature of this letter, it will constitute an Order of the Court and will
be docketed accordingly.
Deborah L. Boardman
United States Magistrate Judge
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