                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                           Submitted November 14, 2005*
                            Decided November 15, 2005

                                      Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

No. 04-3730
                                             Appeal from the United States District
JOHN E. COVINGTON,                           Court for the Central District of
    Plaintiff-Appellant,                     Illinois

      v.                                     No. 04-1315

MITSUBISHI MOTOR                             Joe Billy McDade,
MANUFACTURING OF AMERICA,                    Judge.
INC., and UNITED AUTO
WORKERS LOCAL 2488,
      Defendants-Appellees.

                                    ORDER

      John Covington sued Mitsubishi Motors, his former employer, and the local
chapter of the auto workers union under § 301 of the Labor Management Relations
Act (LMRA), see 29 U.S.C. § 185(a), in connection with his termination. The


      *
       Because there are no appellees or attorneys to be served in this appeal, the
appeal has been submitted without the filing of appellees’ briefs. After an
examination of the appellant’s brief and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the appellant’s brief
and the record. See Fed. R. App. P. 34(a)(2).
No. 04-3730                                                                   Page 2

district court concluded that Covington’s claims were barred by the applicable six-
month statute of limitations and dismissed the complaint prior to service under 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. We reverse and remand.

       On September 13, 2004, Covington simultaneously filed a complaint and
application to proceed without prepayment of fees. Covington alleges that in 1999
Mitsubishi terminated his employment without just cause in violation of its
collective bargaining agreement with the union. He further alleges that the union
violated its duty of fair representation in October 2002 when it failed to arbitrate
his grievance and negotiate his rehire under the “last chance” clause of the
collective bargaining agreement. The district court correctly stated that the statute
of limitations for both claims is six months; section 301(a) of the LMRA borrows the
statute of limitations applicable to suits under § 10(b) of the National Labor
Relations Act, see 29 U.S.C. § 160(b). DelCostello v. Int’l Bhd. of Teamsters, 462
U.S. 151, 172 (1983); Chapple v. Nat’l Starch & Chem. Co., 178 F.3d 501, 505 (7th
Cir. 1999). The court dismissed the complaint for failure to state a claim, reasoning
that Covington brought his claims more than six months after the relevant events
and failed to explain his assertion that the statute of limitations had been tolled.

       We review dismissals under § 1915(e)(2)(B)(ii) for failure to state claim
de novo, having recognized that there is no reason to treat such dismissals
differently from those under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000). A complaint need not
anticipate or overcome affirmative defenses such as the statute of limitations. See
Gomez v. Toledo, 446 U.S. 635, 640 (1980); Xechem, Inc. v. Bristol-Myers Squibb
Co., 372 F.3d 899, 901 (7th Cir. 2004). For that reason, we have deemed it
“irregular” to dismiss a claim as untimely under Rule 12(b)(6). United States v. N.
Trust Co., 373 F.3d 886, 888 (7th Cir. 2004). A complaint does not fail to state a
claim simply because some defense is potentially available. Id.; see U.S. Gypsum
Co. v. Ind. Gas Co., 350 F.3d 623, 627 (7th Cir. 2003); Leavell v. Kieffer, 189 F.3d
492, 494 (7th Cir. 1999). Instead, dismissal under Rule 12(b)(6) on the basis of an
affirmative defense is appropriate only where the plaintiff pleads himself out of
court by “admit[ting] all the ingredients of an impenetrable defense.” Xechem, 372
F.3d at 901; see United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)
(explaining that dismissal is proper where complaint “plainly reveals that an action
is untimely under the governing statute of limitations”). In such cases, the validity
of the defense must be “apparent from the complaint itself” and “unmistakable.”
Walker v. Thompson, 288 F.3d 1005, 1010 (7th Cir. 2002).

       Here, Covington did not plead himself out of court by admitting the elements
of an affirmative defense; rather, the district court concluded that Covington failed
to draft his complaint with sufficient detail to overcome an anticipated defense
premised on the statute of limitations. See U.S. Gypsum Co., 350 F.3d at 626.
No. 04-3730                                                                  Page 3

Covington alleges in his complaint, without elaborating, that the statute of
limitations was tolled until a “recent discovery.” He anticipated—although he was
not required to—the assertion of an affirmative defense. The district court
essentially faulted him for failing to do even more and establish in the complaint
that he could defeat the anticipated defense. True, Covington must explain with a
great deal more specificity his grounds for tolling, but such an explanation was not
required at the complaint stage. Covington’s complaint states claims for breach of a
collective bargaining agreement and breach of the duty of fair representation.
Accordingly, dismissal under § 1915(e)(2)(B)(ii) was premature.

                                                      VACATED and REMANDED
