                                          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
                       ____________

                OPINION OF THE COURT
                     ____________

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
