The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION & ORDER
In this action, Plaintiff Elvira Morillo, proceeding pro se, appeals the denial of her application for pension benefits by Defendant 1199 SEIU Home Care Employees Pension Fund*fn1 ("Defendant"). The fund is a benefits plan governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"). Defendant has moved to dismiss the complaint, or, in the alternative, for summary judgment (Dkt. No. 10). Defendant argues that (1) Morillo's complaint is untimely; (2) Morillo failed to exhaust her administrative remedies; and (3) Morillo is not entitled to pension benefits under the terms of the relevant plans.*fn2 For the reasons stated below, Defendant's motion will be treated as one for summary judgment and will be GRANTED.
CONVERSION TO SUMMARY JUDGMENT
Defendant has styled its motion as one to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the complaint "fail[s] to state a claim upon which relief can be granted." (Fed. R. Civ. P. 12(b)(6); Def. Br. 7) In considering a motion to dismiss, that challenges the legal sufficiency of a complaint, the Court is limited to "the factual allegations in [the] . . . complaint, . . . documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, [and] documents either in plaintiff['s] possession or of which the plaintiff had knowledge and relied on in bringing suit." Brass v. Am. Film Techs., Inc. , 987 F.2d 142, 150 (2d Cir. 1993). Defendant has submitted certain documents that Morillo can fairly be said to have "relied on in bringing suit," such as letters denying her claim for pension benefits; but it has also submitted documents that fall outside that category, such as an affidavit from the 1199 SEIU Home Care Employees Pension Fund's Chief Pension Director. (Kaiser Aff., Ex. C)
In addition, Defendant has raised two affirmative defenses to Morillo's complaint: it alleges that her action is time-barred and that she has not exhausted her administrative remedies. See Fed. R. Civ. P. 8(c)(1) (statute of limitations is an affirmative defense); Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 445 (2d Cir. 2006) (failure to exhaust administrative remedies under ERISA is an affirmative defense). A complaint may be dismissed on the grounds of an affirmative defense only "'if the defense appears on the face of the complaint.'" Reid v. Supershuttle Int'l, Inc., 2010 WL 1049613, at *7 (E.D.N.Y. Mar. 22, 2010) (quoting Official Committee of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003)).
The Complaint does not address the timing of Morillo's application for benefits or whether she exhausted her administrative remedies.*fn3 (Cmplt. ¶ C) Accordingly, Defendant has asked this Court, in the alternative, to treat its motion as one for summary judgment, which would permit the Court to consider the full administrative record submitted by Defendant.
Federal Rule of Civil Procedure 12(b) provides:
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.
With respect to notice that a motion to dismiss may be converted to a motion for summary judgment, Local Civil Rule 12.1 provides that where a represented party moving to dismiss or for judgment on the pleadings has submitted evidence outside the pleadings, the following notice must be provided to a pro se litigant such as Morillo:
Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings
The defendant in this case has moved to dismiss or for judgment on the pleadings pursuant to Rule 12(b) or Rule 12(c) of the Federal Rules of Civil Procedure, and has submitted additional written materials. This means that the defendant has asked the court to decide this case without a trial, based on these written materials. You are warned that the Court may treat this motion as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For this reason, THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing sworn affidavits or other papers as required by Rule 56(e). . . . In short, Rule 56 provides that you may NOT oppose the defendant's motion simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial. . . .
If you do not respond to the motion on time with affidavits or other documentary evidence contradicting the facts asserted by the defendant, the court may accept defendant's factual assertions as true. Judgment may ...