In Re Asbestos Products Liability Litigation (No. VI)

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 14-1715, 14-1804

____________

In re: Asbestos Products Liability Litigation (No. VI)

PEGGY R. HASSELL, individually and as Personal

Representative of the Estate of Billie L. Hassell, deceased,

Appellant

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Nos. 2-09-cv-90863, 2-01-md-00875)

District Judge: Honorable Eduardo C. Robreno

____________

Argued November 19, 2015

Before: AMBRO, HARDIMAN, and NYGAARD,

Circuit Judges.

(Opinion Filed: May 16, 2016)

Howard J. Bashman

Suite G-22

2300 Computer Avenue

Willow Grove, PA 19090

John D. Roven [Argued]

Roven Kaplan

2190 North Loop West

Houston, TX 77018

Counsel for Appellant Peggy R. Hassell

Joseph E. Richotte [Argued]

Butzel Long

41000 Woodward Avenue

Bloomfield Hills, MI 48304

James E. Wynne

Butzel Long

150 West Jefferson Avenue

Suite 100

Detroit, MI 48226

Counsel for Appellee The Budd Company, Inc.

Holli Pryor-Baze [Argued]

John K. Grantham

Akin Gump Strauss Hauer & Feld

1111 Louisiana Street

44th Floor

Houston, TX 77002

Counsel for Appellee Resco Holdings LLC

2

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

Peggy Hassell, on behalf of herself and her deceased

husband’s estate, appeals an order of the District Court dis-

missing her civil suit against The Budd Company and Resco

Holdings LLC. Hassell asserted state law causes of action

arising from her husband’s exposure to asbestos during the

forty years he worked for the Atchison, Topeka and Santa Fe

Railway (the Railroad). Budd and Resco moved to dismiss,

arguing that Hassell’s claims were preempted by the Locomo-

tive Inspection Act, 49 U.S.C. § 20701 et seq., and the Safety

Appliance Act, 49 U.S.C. § 20301 et seq. The District Court

granted the companies’ motion, holding that Hassell’s claims

were preempted by the Locomotive Inspection Act.

In this appeal, Hassell claims that the District Court

erred procedurally by dismissing her complaint based on facts

that were neither in her complaint nor undisputed. Hassell al-

so contends that the District Court misapplied the preemptive

scope of the Locomotive Inspection Act to hold her claims

preempted. Because we agree with Hassell’s procedural ar-

gument, we will vacate the Court’s order and remand the case

for further proceedings consistent with this opinion.

I

Toward the end of the nineteenth century, the rapid

growth of the railroad industry in the United States brought

with it numerous accidents and deaths. See, e.g., Charles W.

3

McDonald, Federal Railroad Administration, The Federal

Railroad Safety Program 2–6 (Aug. 1993). In response to

these safety concerns and because of the variety of state laws

regulating the industry, Congress in 1893 passed the Safety

Appliance Act (SAA). Act of Mar. 2, 1893, ch. 196, 27 Stat.

531–32, amended by Act of Mar. 2, 1903, ch. 976, 32 Stat.

943, and Act of Apr. 14, 1910, ch. 160, 36 Stat. 298; see also

Lorenzo S. Coffin, Safety Appliances on the Railroads, 5 An-

nals of Iowa 561, 569–80 (1903). Full implementation of the

SAA, which required railroads to equip trains with automatic

couplers and power brakes, was delayed until 1900. See Note,

The Federal Safety Appliance Act as a Regulation of Inter-

state Commerce, 3 Mich. L. Rev. 387, 388 (1905). Eleven

years later, Congress began regulating locomotive steam boil-

ers through the Boiler Inspection Act (BIA). Act of Feb. 17,

1911, ch. 103, § 2, 36 Stat. 913–14. Soon thereafter, the BIA

was amended to cover the entire locomotive as well as its

“parts and appurtenances.” Act of Mar. 4, 1915, ch. 169, 38

Stat. 1192. The statute as amended has since been known as

the Locomotive Boiler Inspection Act, or simply the Locomo-

tive Inspection Act (LIA).1

The increased federal regulation of the locomotive in-

dustry resulted in conflicts with various state laws. Accord-

ingly, in Napier v. Atlantic Coast Line Railroad Co., 272 U.S.

605 (1926), the Supreme Court was presented with constitu-

1

The current version of the LIA is codified at 49

U.S.C. § 20701 and provides in relevant part that “[a] railroad

carrier may use . . . a locomotive or tender on its railroad line

only when the locomotive or tender and its parts and appurte-

nances . . . are in proper condition and safe to operate without

unnecessary danger of personal injury.”

4

tional challenges to laws in Georgia and Wisconsin that re-

quired the Court to decide whether Congress intended “to oc-

cupy the entire field of regulating locomotive equipment.” Id.

at 611. The Court noted that the SAA, which included specif-

ic requirements, and the BIA, which regulated only boilers,

did not preempt the field. Id. As amended in 1915, however,

the LIA included a “general” power that “extend[ed] to the

design, the construction, and the material of every part of the

locomotive and tender and of all appurtenances.” 272 U.S. at

611. The “broad scope” of this “general” authority led the

Court to conclude that Congress, in enacting the LIA, had

“occupied the field of regulating locomotive equipment.” Id.

at 607, 613. For that reason, “[b]ecause the standard set by

the [Interstate Commerce] Commission must prevail, re-

quirements by the states are precluded, however commenda-

ble or different their purpose.” Id. at 613.2

Almost a century later, the Supreme Court revisited the

LIA’s preemptive scope in Kurns v. Railroad Friction Prod-

ucts Corp., 132 S. Ct. 1261 (2012). Unlike Napier—which

involved the preemption of state statutes—Kurns considered

whether the LIA preempted state causes of action. The plain-

tiffs in Kurns asserted state law defective-design and failure-

2

The administration and enforcement of the LIA was

originally entrusted to the Interstate Commerce Commission.

See, e.g., Kurns v. R.R. Friction Prods. Corp., 132 S. Ct.

1261, 1266 & n.3 (2012). Since 1967, this authority has been

vested in the Federal Railroad Administration under the direc-

tion of the Secretary of Transportation. See id.; see also, e.g.,

49 U.S.C. 103(g); Federal Railroad Administration, Inspec-

tion and Maintenance Standards for Steam Locomotives, 64

Fed. Reg. 62,828, 62,828 (Nov. 17, 1999).

5

to-warn claims against the manufacturers of locomotive brake

shoes and locomotive engine valves that contained asbestos.

132 S. Ct. at 1265. Underscoring that “Napier defined the

field pre-empted by the LIA on the basis of the physical ele-

ments regulated,” the Court held that the state law claims

were preempted because they were “directed at the equipment

of locomotives.” 132 S. Ct. at 1269 (emphasis added); see al-

so id. at 1270 (Kagan, J., concurring) (“According to Napier,

the scope of the agency’s power under the [LIA] determines

the boundaries of the preempted field.”). The Court thus re-

jected the distinction between common law claims and posi-

tive law enacted through state legislation or regulation, hold-

ing that Napier’s “categorical conclusion admits of no excep-

tion for state common-law duties and standards of care . . .

[because] state ‘regulation can be . . . effectively exerted

through an award of damages.’” Id. at 1269 (quoting San Di-

ego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247

(1959)). And by holding the plaintiffs’ failure-to-warn claims

preempted, the Court also precluded the attachment of state

law duties or conditions to locomotive equipment because

such legal requirements would “inevitably influence a manu-

facturer’s choice whether to use that particular design.” Id. at

1268 n.4.

II

Having summarized the law of field preemption under

the LIA, we turn to the parties’ dispute in this appeal. Has-

sell’s civil action against Budd and Resco was filed in Texas

state court. The case was removed to the United States Dis-

trict Court for the Southern District of Texas and transferred

to the Eastern District of Pennsylvania as part of a multidis-

trict litigation. Hassell then filed an amended complaint as-

6

serting state law products liability claims based on the follow-

ing facts.

Between 1945 and the mid-1970s, Hassell’s husband

Billie was employed as an electrician by the Railroad. Billie’s

responsibilities included the maintenance and repair of pas-

senger railcars designed and manufactured by Budd’s and

Resco’s predecessors in interest. Steam pipes running under-

neath those railcars were insulated with material containing

asbestos, and he was exposed to asbestos contained in the

dust produced during the maintenance and repair of the rail-

cars. As a consequence of this exposure, Billie contracted as-

bestosis and mesothelioma. He died on May 30, 2009, during

the pendency of this lawsuit.

Budd, joined by Resco, moved the District Court to

dismiss Hassell’s amended complaint, arguing that her state

law claims were preempted by the LIA, the SAA, and the

Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20101 et

seq. The District Court denied the motion without prejudice

in light of our intervening opinion in Kurns v. A.W. Chester-

ton Inc. (Kurns I), 620 F.3d 392 (3d Cir. 2010), and the Su-

preme Court’s decision to grant a petition for writ of certiora-

ri to hear that case. See 131 S. Ct. 2959 (2011). By this point

in the proceedings, the parties had already completed substan-

tial discovery.

In February 2012, the Supreme Court affirmed our

judgment in Kurns I and Budd renewed its motion to dismiss

(which Resco again joined). See Kurns, 132 S. Ct. at 1264. In

the company’s renewed motion—which it “[a]lternatively”

styled as a motion for summary judgment, App. 37a—Budd

observed that the Supreme Court in Kurns had reaffirmed the

scope of LIA preemption as defined in Napier and argued that

7

the LIA preempted Hassell’s claims because the asbestos-

insulated steam pipes on the passenger railcars qualified as

locomotive “parts and appurtenances” under the statute. 49

U.S.C. § 20701. Budd claimed that the “pipes were connected

to the locomotive, which supplied heat from the locomotive’s

engine to the pipes,” and that “[t]his kind of interconnected

system qualifies as an appurtenance of the locomotive.” App.

49a. Hassell countered that Budd had produced no evidence

to support the company’s factual allegations, and that, in any

event, she had produced evidence that the Railroad had used

“power cars” to heat passenger compartments,3 such that the

passenger railcars “would not even have [had] a metaphysical

connection to a locomotive.” App. 85a. Hassell’s argument

therefore distinguished between “locomotive appurte-

nances”—to which she conceded LIA preemption applied—

and non-locomotive equipment on passenger railcars, which

she contended did not raise preemption concerns. See App.

79a.

After hearing argument from the parties, the District

Court granted Budd’s renewed motion to dismiss Hassell’s

amended complaint. In doing so, the Court began by constru-

ing “parts and appurtenances” under the LIA based on South-

ern Railway Co. v. Lunsford, 297 U.S. 399 (1936). In Luns-

ford, the Supreme Court defined “parts and appurtenances”

under the LIA as encompassing “[w]hatever in fact is an inte-

gral or essential part of a completed locomotive, and all parts

or attachments definitely prescribed by lawful order of the

Interstate Commerce Commission.” Id. at 402. Noting that it

3

A “power car” was equipped with a “portable boiler

that generated steam for many purposes including the heating

of passenger coaches on trains.” App. 177a.

8

had previously found railcar brake shoes to constitute “parts

and appurtenances” under the LIA because “they [were] part

of the interconnected locomotive braking system” in Perry v.

A.W. Chesterton, Inc., 985 F. Supp. 2d 669, 675 (E.D. Pa.

2013), the District Court found that the pipes responsible for

Billie’s asbestos exposure formed a “system of pipes that

connect the railcars and locomotives, which are an essential

and integral part of the completed locomotive.” App. 7a. Ac-

cordingly, the District Court held that Hassell’s claims were

preempted under the LIA. Hassell filed this appeal.4

III

The District Court had diversity jurisdiction to adjudi-

cate Hassell’s state law claims under 28 U.S.C. § 1332(a) be-

4

Prior to granting Budd’s renewed motion to dismiss,

the District Court denied Hassell’s motion for leave to file a

second amended complaint in which she sought to plead state

law claims alleging violations of federal standards of care

contained in the LIA and the SAA. The District Court found

that such amendments would have been futile because a vio-

lation of these statutes triggers strict liability under the Feder-

al Employers Liability Act (FELA), 45 U.S.C. § 51 et seq.,

FELA claims can be asserted only by railroad employees

against their employers (not manufacturers like Budd and

Resco), and neither the LIA nor the SAA provides a remedy

for a violation of their respective statutory requirements. See,

e.g., Del. & Hudson Ry. Co. v. Knoedler Mfrs., Inc., 781 F.3d

656, 663 (3d Cir. 2015) (citing Urie v. Thompson, 337 U.S.

163, 188–89 (1949)). Hassell has challenged this ruling on

appeal, but we decline to reach this issue in light of our dispo-

sition.

9

cause Hassel is a citizen of Texas, Budd and Resco are incor-

porated and have their principal places of business in states

other than Texas, and the amount in controversy exceeds

$75,000. See Hertz Corp. v. Friend, 559 U.S. 77, 85, 92

(2010); Johnson v. SmithKline Beecham Corp., 724 F.3d 337,

347 (3d Cir. 2013). We have appellate jurisdiction under 28

U.S.C. § 1291.

Our review of the District Court’s dismissal of Has-

sell’s amended complaint under Federal Rule of Civil Proce-

dure 12(b)(6) is plenary. See, e.g., Great W. Mining & Miner-

al Co. v. Fox Rothschild, LLP, 615 F.3d 159, 163 (3d Cir.

2010). In reviewing whether Hassell stated a viable claim, we

must accept as true all plausible facts alleged in her amended

complaint and draw all reasonable inferences in her favor.

See, e.g., Connelly v. Lane Constr. Corp., 809 F.3d 780, 786

n.2 (3d Cir. 2015). We review the District Court’s formula-

tion and application of the test defining the scope of the LIA’s

field preemption de novo. See, e.g., Addie v. Kjaer, 737 F.3d

854, 865 (3d Cir. 2013) (citing Fed. Kemper Ins. Co. v.

Rauscher, 807 F.2d 345, 348 (3d Cir. 1986)).

IV

A

Napier and Kurns establish that field preemption under

the LIA turns on one fundamental question: is the state regu-

lation or cause of action “directed at the equipment of loco-

motives”? Kurns, 132 S. Ct. at 1268. If it is, the regulation or

cause of action is preempted because it falls within the regu-

latory space assigned by the statute to the Federal Railroad

Administration. See Kurns, 132 S. Ct. at 1269; see also, e.g.,

Del. & Hudson Ry. Co. v. Knoedler Mfrs., Inc., 781 F.3d 656,

10

659 n.2, 661–62 (3d Cir. 2015); Oglesby v. Del. & Hudson

Ry. Co., 180 F.3d 458, 460 (2d Cir. 1999) (per curiam); Un-

ion Pac. R.R. Co. v. Cal. Pub. Utils. Comm’n (CPUC), 346

F.3d 851, 869 (9th Cir. 2003); Springston v. Consol. Rail

Corp., 130 F.3d 241, 245 (6th Cir. 1997); Mo. Pac. R.R. Co.

v. R.R. Comm’n of Tex. (MOPAC), 833 F.2d 570, 576 & n.7

(5th Cir. 1987); Marshall v. Burlington N., Inc., 720 F.2d

1149, 1152 (9th Cir. 1983).

Neither Napier nor Kurns had to determine precisely

which mechanical components of a train qualify as the

“equipment of locomotives” because the answer was obvious

in both cases. At issue in Napier were state statutes requiring

railroads to install cab curtains and automatic doors in loco-

motives. 272 U.S. at 208. Kurns involved the imposition of

state standards of care regarding locomotive brake shoes and

engine valves. 132 S. Ct. at 1264. Thus, neither case had to

confront the distinction between locomotive equipment and

equipment belonging to some other railroad apparatus—in

this case, passenger railcars. Nor are we aware of any other

federal court of appeals’ decision that has had to squarely

confront this distinction.

In the absence of clear guidance on the issue—and

perhaps justified by a comment we made in Kurns I, 620 F.3d

at 396 n.5— the District Court relied on Lunsford, in which

the Supreme Court construed the term “parts and appurte-

nances” under the LIA to encompass “[w]hatever in fact is an

integral and essential part of a completed locomotive, and all

parts or attachments definitely prescribed by lawful order of

the [Federal Railroad Administration].” 297 U.S. at 402. Alt-

hough Lunsford is not a case about preemption, see note 5,

infra, the implicit logical chain between Napier and Lunsford

inferred by the District Court is clear. The authority delegated

11

by the LIA permits the Federal Railroad Administration to

regulate “the locomotive . . . and its parts and appurtenances,”

49 U.S.C. § 20701, and those “parts and appurtenances” in-

clude anything that is “integral and essential” to the “com-

pleted locomotive,” Lunsford, 297 U.S. at 402. Therefore, be-

cause the scope of regulatory authority delegated by the LIA

is coextensive with the scope of field preemption under the

statute, the District Court reasoned that any state regulation of

an “integral or essential” locomotive component is preempt-

ed. See Kurns, 132 S. Ct. at 1268–69; see also Napier, 272

U.S. at 611–13.5

5

In light of our holding that the District Court erred

procedurally, we express no opinion as to whether Lunsford

appropriately defines the scope of field preemption under the

LIA as set forth in Napier and Kurns—Lunsford simply es-

tablishes the legal backdrop applied by the District Court to

determine the materiality of facts underlying Budd’s preemp-

tion defense. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986) (“Substantive law will identify which facts

are material.”). We note, however, that two of our sister

courts have declined to embrace Lunsford in the context of

LIA preemption. See MOPAC, 833 F.2d at 576 & n.7 (5th

Cir. 1987) (“Contrary to the Commission's assertion, [Luns-

ford] does not stand for the proposition that under the Loco-

motive Boiler Inspection Act state attempts to regulate are

preempted only to the extent they prescribe ‘integral or essen-

tial’ equipment of a complete locomotive.”); Marshall, 720

F.2d at 1152 (“The ordinary duty of care described

in Lunsford does not apply in these circumstances, and Luns-

ford in no way affects our holding that the [LIA] preempts

any state regulation of locomotive equipment.”). As the Fifth

12

B

As a necessary predicate to its conclusion that the as-

bestos-insulated pipes on the passenger railcars manufactured

by Budd and Resco were “integral and essential” to a locomo-

tive, the District Court found that the pipes were joined to

create a “system of pipes that connect the railcars and loco-

motives,” and that this system was “an essential and integral

part of the completed locomotive” under Lunsford. App. 7a.

These conclusions cannot be squared with Hassell’s amended

complaint, however, devoid as it is of any facts establishing a

“system of pipes” connecting the railcars to the locomotive.

As Hassell observes, the word “locomotive” never even ap-

pears in her amended complaint.6 Thus, the District Court

Circuit observed in MOPAC, the Supreme Court in Lunsford

was not confronted with a question of preemption. See 833

F.2d at 576 & n.7. Instead, the issue before the Court was

how to define the scope of absolute liability under FELA for

alleged violations of the LIA’s duty of care. 297 U.S. at 399–

400.

6

The amended complaint’s silence on this “system of

pipes” or whether the railcar pipes were ever connected in

some fashion to a locomotive—i.e., the facts assertedly giving

rise to preemption—is unsurprising because federal preemp-

tion is an affirmative defense on which the defendant bears

the burden of proof. See, e.g., Hawkins v. Leslie’s Pool Mart,

Inc., 184 F.3d 244, 256 & n.4 (3d Cir. 1999). This allocation

of the burden of proof suggests that a motion under Rule

12(c) for judgment on the pleadings is a more appropriate

procedural vehicle for dismissing cases on preemption

grounds, instead of a motion under Rule 12(b)(6), except for

cases in which preemption is manifest in the complaint itself.

13

necessarily relied on evidence extrinsic to her pleadings to

grant Budd’s motion.

This was error because “a court considering a motion

to dismiss under Federal Rule of Civil Procedure

12(b)(6) may consider only the allegations contained in the

pleading to determine its sufficiency.”7 Santomenno ex rel.

John Hancock Trust v. John Hancock Life Ins. Co. (U.S.A.),

See, e.g., Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C.

Cir. 2014); S.C. Johnson & Son, Inc. v. Transport Corp. of

Am., Inc., 697 F.3d 544, 547 (7th Cir. 2012); Fisher v. Halli-

burton, 667 F.3d 602, 609 (5th Cir. 2012). In deciding a mo-

tion under Rule 12(c), the court must “view the facts present-

ed in the pleadings and the inferences to be drawn therefrom

in the light most favorable to the nonmoving party,” and may

not grant the motion “unless the movant clearly establishes

that no material issue of fact remains to be resolved and that

he is entitled to judgment as a matter of law.” Jablonski v.

Pan Am. World Airways, Inc., 863 F.2d 289, 290–91 (3d Cir.

1988) (quoting Soc’y Hill Civic Ass’n v. Harris, 632 F.2d

1045, 1054 (3d Cir. 1980)).

7

Although phrased in relatively strict terms, we have

declined to interpret this rule narrowly. In deciding motions

under Rule 12(b)(6), courts may consider “document[s] inte-

gral to or explicitly relied upon in the complaint,” In re Bur-

lington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997) (emphasis in original), or any “undisputedly authentic

document that a defendant attaches as an exhibit to a motion

to dismiss if the plaintiff’s claims are based on the docu-

ment,” PBGC v. White Consol. Indus., 998 F.2d 1192, 1196

(3d Cir. 1993).

14

768 F.3d 284, 290 (3d Cir. 2014) (emphasis added) (citing

Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560

(3d Cir. 2002)). And while district courts are not required to

accept merely conclusory factual allegations or legal asser-

tions, see, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678–79

(2009), they still must accept as true all plausible factual alle-

gations made in the complaint and draw all reasonable infer-

ences in the plaintiff’s favor, see Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007); Williams v. BASF Catalysts LLC,

765 F.3d 306, 323 (3d Cir. 2014). Accordingly, the District

Court’s reliance on facts alleged outside of Hassell’s amend-

ed complaint constitutes a procedural error under Rule

12(b)(6).8

8

Budd contends that Hassell waived her procedural

objection by urging the District Court to rule on Budd’s mo-

tion to dismiss, but we disagree. “[W]aiver is the ‘intentional

relinquishment or abandonment of a known right.’” Tri-M

Grp., LLC v. Sharp, 638 F.3d 406, 432 n.1 (3d Cir. 2011)

(Hardiman, J., concurring) (quoting United States v. Olano,

507 U.S. 725, 733 (1993)). In her brief opposing dismissal,

Hassell characterized Budd’s motion as posing “questions of

law” in which the underlying “facts [were] not in dispute.”

App. 77a. By arguing to the District Court that Budd’s motion

was ripe for disposition, Hassell could have waived the argu-

ment that the District Court should not have ruled on the mo-

tion, but she did not waive the argument that the District

Court was bound by the procedural limits of Rule 12(b)(6),

nor was this argument forfeited for the purposes of appeal.

See id. (defining forfeiture as the “failure to make the timely

assertion of a right”).

15

That said, the District Court’s consideration of evi-

dence extrinsic to the complaint does not automatically re-

quire reversal. Federal Rule of Civil Procedure 12(d) provides

that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters

outside the pleadings are presented to and not excluded by the

court, the motion must be treated as one for summary judg-

ment under Rule 56.” See Messer v. V.I. Urban Renewal Bd.,

623 F.2d 303, 307 (3d Cir. 1980) (“[W]here matters outside

the pleadings are considered by the district court, a motion

under [Rule 12(b)(6)] for failure to state a claim upon which

relief can be granted will be treated as a Rule 56 motion for

summary judgment.”); see also 5B Charles Alan Wright &

Arthur R. Miller, Federal Practice & Procedure § 1366 (3d ed.

2015).9 Although Rule 12(d) requires that the parties be given

“reasonable notice,” the failure to give notice may be excused

as harmless error in the absence of prejudice to the nonmov-

ing party. See, e.g., SBRMCOA, LLC v. Bayside Resort, Inc.,

707 F.3d 267, 272–73 (3d Cir. 2013) (quoting Ford Motor

9

Where, as here, a district court expressly disclaims

the use of extrinsic evidence in deciding a motion under Rule

12(b)(6), we have held that “our review is as under a motion

to dismiss, even where additional materials were admitted in-

to the record.” Kulwicki v. Dawson, 969 F.2d 1454, 1562 (3d

Cir. 1992). Adherence to Kulwicki, however, is “procrustean”

when it is clear that the district court nonetheless considered

“matters outside of the pleadings” to reach its disposition.

Fagin v. Gilmartin, 432 F.3d 276, 286 (3d Cir. 2005). And,

although the district court in Kulwicki permitted the movants

to file supplemental information, it chose not to consider

those materials and properly considered the motion as one

under Rule 12(b)(6). See 969 F.2d at 1462.

16

Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 284–85 (3d

Cir. 1991)).

In this case, the District Court did not notify the parties

that it was converting Budd’s motion to dismiss to a motion

for summary judgment, but given that Budd alternatively pre-

sented its motion as one seeking summary judgment, it is un-

clear whether Hassell can demonstrate that she was unfairly

prejudiced by the lack of notice. See In re Rockefeller Ctr.

Props., Inc. Sec. Litig., 184 F.3d 280, 289 (3d Cir. 1999)

(“Failure to provide notice is harmless error if the plaintiff’s

complaint would not have survived a motion to dismiss.”);

Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989) (“[T]he

judgment may be affirmed if it appears that there is no set of

facts on which plaintiffs could possibly recover.”); see also

Schering Corp. v. FDA, 51 F.3d 390, 400 (3d Cir. 1995) (af-

firming summary judgment despite the district court’s failure

to give notice because the disputed issue—“the exclusivity of

the statutory definition of bioequivalence”—was purely legal

in nature). However we might consider the prejudice issue,

vacating the order dismissing Hassell’s complaint is still re-

quired because the District Court improperly applied the

standard for summary judgment under Rule 56.

17

In a typical formulation of the summary judgment

standard, it

is appropriate when the pleadings, the discovery

and disclosure materials on file, and any affida-

vits show that there is no genuine issue as to

any material fact and that the movant is entitled

to judgment as a matter of law. In making this

determination, we must view the facts in the

light most favorable to the nonmoving party and

draw all inferences in that party’s favor.

Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir.

2009) (internal quotation marks and citations omitted) (quot-

ing Norfolk S. Ry. Co. v. Bassell USA Inc., 512 F.3d 86, 91

(3d Cir. 2008)). The movant bears the burden of establishing

the undisputed facts and entitlement to judgment as a matter

of law. See El v. Se. Pa. Transp. Auth., 479 F.3d 232, 237 (3d

Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986)).

Viewed through this lens, summary judgment was not

appropriate in this case for at least three reasons. First, neither

Budd nor Resco produced any evidence supporting their as-

sertion that the railcar pipes responsible for Billie’s asbestos

exposure formed an “interconnected system” with the loco-

motive. App. 50a. Budd’s first motion included exhibits in

support of purely legal arguments concerning the scope of the

LIA and the Federal Railroad Administration’s regulatory au-

thority, and its second motion was unaccompanied by any ex-

hibits; Resco’s joinder in these motions was similarly devoid

18

of evidentiary support.10 Thus, the companies failed to carry

their burden of proof on the purportedly converted motion.

Second, even assuming that evidence for the “interconnected

system” could have been gleaned from the record, Hassell at-

tached in her opposition brief affidavit evidence from a for-

mer Railroad supervisor showing that, instead of being con-

nected to locomotives, the pipes were connected to “power

cars” that separately supplied steam heat to the passenger

coaches. She therefore established a genuine dispute of mate-

rial fact precluding summary judgment. See NAACP v. N.

Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d Cir.

2011) (“After the movant shows that there is no genuine issue

for trial, the non-moving party then bears the burden of iden-

tifying evidence that creates a genuine dispute regarding ma-

terial facts.”). Finally, the standard for summary judgment

requires that factual inferences be drawn in the light most fa-

vorable to the nonmoving party. Although the facts before the

District Court could have supported a reasonable inference

that the pipes were connected to locomotives, summary

10

Budd argued in its second motion before the District

Court that Hassell conceded the facts giving rise to the com-

pany’s preemption argument in a Rule 30(b)(6) deposition

notice filed by ACF Industries, L.L.C., a former codefendant

that is not a party to this appeal. See App. 49a (citing ECF

No. 28 in the District Court docket). This filing fails to sup-

port Budd’s contention as it was not even made by Hassell.

Further, Budd’s insistence in the motion that Hassell did not

dispute the company’s factual characterizations is misplaced

because she was not required to contest Budd’s version of the

facts necessary to support its preemption defense to establish

the viability of her case.

19

judgment would have been improper because there were other

facts of record supporting the contrary inference that the pipes

were connected to something else. See, e.g., Anderson v. Lib-

erty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility de-

terminations, the weighing of the evidence, and the drawing

of legitimate inferences from the facts are jury functions, not

those of a judge. . . . The evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his

favor.”); see also, e.g., United States v. USX Corp., 68 F.3d

811, 827 (3d Cir. 1995). Accordingly, whether viewed from

the perspective of Rule 12(b)(6) or Rule 56, on the record as

presented to us the District Court’s order cannot be af-

firmed.11

* * *

For the foregoing reasons, we will vacate the District

Court’s order and remand Hassell’s case for further proceed-

ings consistent with this opinion.

11

We take no position as to whether summary judg-

ment might be warranted on a different record after further

discovery.

20