                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                               March 2, 2005
                         FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                           _________________                      Clerk

                              No. 04-10845
                            Summary Calendar
                           _________________


MICHAEL A MARAK

                  Plaintiff - Appellant

           v.

DALLAS FORT WORTH INTERNATIONAL AIRPORT BOARD

               Defendant - Appellee
_________________________________________________________________

           Appeal from the United States District Court
            for the Northern District of Texas, Dallas
                        No. 3:03-CV-1883-R
_________________________________________________________________

Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.

PER CURIAM:*

                            I.   BACKGROUND

     Plaintiff-Appellant Michael A. Marak is a former employee of

Defendant-Appellee Dallas/Fort Worth International Airport Board

(“DFW”).   On June 10, 2003, Marak’s employment with DFW was

terminated as part of a reduction-in-force program.      On August




     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                 - 1 -
21, Marak filed suit against DFW, making four claims.1    First,

Marak asserted a claim under 42 U.S.C. § 1983, alleging that DFW

terminated him in retaliation for publicly speaking out about

DFW’s allegedly poor compliance with environmental regulations.

Second, Marak asserted a state law tortious interference with

contract claim, alleging that DFW terminated him to prevent him

from becoming vested in a higher tier of benefits under DFW’s

pension plan.   Third, Marak asserted claims under the Texas

Commission on Human Rights Act, TEX. LAB. CODE ANN. § 21.051

(Vernon 1996), and the Age Discrimination in Employment Act of

1967 (“ADEA”), 29 U.S.C. § 621 et seq. (2000), alleging that he

was terminated because of his age.     Fourth, Marak asserted a

claim under the Family and Medical Leave Act of 1993 (“FMLA”), 29

U.S.C. § 2601 et seq. (2000), alleging that he was terminated in

retaliation for his plans to exercise certain rights under the

FMLA.

     On December 8, 2003, DFW answered Marak’s complaint.

Pursuant to the procedures set forth in the district court’s

scheduling order, on December 8, DFW also effectively filed a

motion to dismiss under FED. R. CIV. P. 12(b)(6).   Marak’s




     1
          On October 7, Marak filed a motion to amend his
original complaint, which the court granted. On November 17, the
court granted a second motion to amend the complaint. This
second amended complaint is the operative complaint for this
appeal.

                               - 2 -
response to DFW’s motion was not due until March 8, 2004.2    He

did not, however, file a response by that date.    In compliance

with the scheduling order, on March 10, DFW filed a notice of

default with the court.    On March 23, the court granted DFW’s

motion and dismissed all of Marak’s claims without prejudice.3

Marak now appeals the district court’s grant of DFW’s motion to

dismiss as to his ADEA claim.

                     II.    STANDARD OF REVIEW

     In this appeal we are called upon to review a district

court’s dismissal of a case under FED. R. CIV. P. 12(b)(6) for

failure to state a claim.    We review such dismissals de novo.

Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th

Cir. 2004).

                           III.   DISCUSSION

     On appeal Marak argues that DFW’s motion to dismiss only

pertained to his § 1983 and state law claims.    Because the motion

did not address his ADEA claim, Marak asserts that it should have

been beyond the scope of the court’s dismissal order.    Thus, in



     2
          Under the scheduling order, Marak originally had twenty
days to respond to DFW’s motion to dismiss. Through a series of
extensions, the response was not due until March 8.
     3
          Marak filed several motions with the district court in
response to its dismissal of his complaint. On March 25, Marak
filed a motion to amend his complaint. On March 29, Marak filed
a motion to clarify the dismissal order. On April 28, the court
denied these new motions. In response, on May 5, Marak filed a
motion to amend the judgment. This motion was denied on June 15.

                                  - 3 -
Marak’s view, the court’s dismissal of his ADEA claim was sua

sponte.   According to Marak, a sua sponte dismissal was

especially unjust because it was effectively with prejudice since

the ninety-day limitations period had long since passed.

     Upon inspection, it is absolutely clear that DFW’s motion to

dismiss cannot be read fairly to encompass Marak’s ADEA claim.4

DFW’s motion contains a heading concerning Marak’s federal civil

rights claims.   Since Marak’s ADEA claim is a federal civil

rights claim, DFW argues that its motion clearly concerned

Marak’s ADEA claim.   This argument, however, is of no moment

because DFW never actually mentioned the ADEA in this section.

Instead, it exclusively discussed issues relevant to Marak’s

§ 1983 claim.    Further, under the heading “Scope of Motion,” DFW

specifically says that the motion “seeks a dismissal of the

claims asserted against DFW Airport under 42 U.S.C. § 1983 due to

Plaintiff’s failure to state a claim.”   This section also states

that DFW seeks dismissal of Marak’s state law claims on sovereign

immunity grounds.   Nowhere does DFW mention the ADEA.   DFW’s

motion simply did not seek to dismiss Marak’s ADEA claim.

     Since DFW did not raise Marak’s ADEA claim in its motion,

the district court’s dismissal of the ADEA claim can be

characterized fairly as a sua sponte dismissal.    A district court


     4
          The motion to dismiss also failed to address Marak’s
FMLA claim. However, Marak has not appealed this claim so we
need not address it.

                                - 4 -
may only dismiss a case sua sponte for failure to state a claim

if the procedure employed is fair to the parties.              Bazrowx v.

Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (citing 5A CHARLES ALAN

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE   AND   PROCEDURE § 1357, at 301

(2d ed. 1990)).

     It is clear that the district court did not employ

procedures that were fair to Marak.           Given what appears on the

face of DFW’s motion to dismiss, Marak could have reasonably

believed that his failure to respond would only result in a

default on the claims covered in the motion.              He had no notice

whatsoever that he would also be defaulting on his ADEA claim.

Given that Marak was actively pursuing discovery at the time the

deadline to respond to DFW’s motion passed, it is quite difficult

to believe that he intended to abandon his entire case.

     As a backstop, DFW argues that even if its original motion

to dismiss did not address Marak’s ADEA claim, we should

nevertheless review Marak’s complaint ourselves.              Such review,

DFW argues, would lead to the clear conclusion that Marak’s

complaint failed to make several crucial allegations necessary to

state an ADEA claim.      We decline to consider DFW’s argument

regarding Marak’s supposedly missing crucial allegations, as this

argument is raised for the first time on appeal.              Lifemark

Hosps., Inc. v. Liljeberg Enters. (In re Liljeberg Enters.), 304

F.3d 410, 427 n.29 (5th Cir. 2002) (“arguments not raised in the

district court cannot be asserted for the first time on appeal”).

                                   - 5 -
                        IV.   CONCLUSION

     For the foregoing reasons, we REVERSE the judgment of the

district court.




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