                                                                                FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                  TENTH CIRCUIT                                    May 7, 2013

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
MICHAEL S. JENSEN,

             Plaintiff - Appellant,

v.                                                          No. 12-4201
                                                    (D.C. No. 2:12-CV-00366-DN)
UTAH COURT OF APPEALS; FIFTH                                  (D. Utah)
JUDICIAL DISTRICT COURT, in and for
Washington County, State of Utah;
WELLS FARGO BANK, N.A.,

             Defendants - Appellees.

                             ORDER AND JUDGMENT*

Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.

      This case involves application of the Rooker-Feldman1 doctrine. Michael S.

Jensen, proceeding pro se, filed a petition seeking federal review of a judgment

      *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
      1
          See Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker
v. Fid. Trust Co., 263 U.S. 413 (1923); see also Merrill Lynch Bus. Fin. Servs., Inc. v.
previously entered by the Utah Court of Appeals. The district court dismissed for lack of

jurisdiction. We affirm.

                                      BACKGROUND

       Jensen owned a commercial building in Utah. When his tenant filed for

bankruptcy (and, presumably, quit paying rent), he was unable to continue making the

mortgage payments on the building. Wells Fargo Bank non-judicially foreclosed on the

property. Later, it obtained a $99,639.23 deficiency judgment against Jensen in Utah

state court. Although Wells Fargo produced a photocopy of the original note during the

state litigation, it was never required to produce the original note. See Utah R. Evid.

1003 (“A duplicate is admissible to the same extent as an original unless a genuine

question is raised about the original’s authenticity or the circumstances make it unfair to

admit the duplicate.”).

       In light of widely reported problems relating to transfers of notes secured by real

property, Jensen believed the Utah state court should have required Wells Fargo to

produce the original note to prove it was a holder in due course. Evidencing his

dissatisfaction with the state trial court’s decision he filed a pleading entitled “Writ of

Error Coram Vobis” with the Utah Supreme Court. It transferred the case to the Utah

Court of Appeals, which later affirmed the trial court’s decision. Jensen did not seek

further review in a state court.

Nudell, 363 F.3d 1072, 1074 n.1 (10th Cir. 2004) (overviewing the Rooker-Feldman
doctrine).

                                             -2-
       Instead, he filed his petition, captioned as a “Verified Petition for Appeal by Writ

of Error Coram Vobis,” in federal district court. He argued the Utah Court of Appeals

erred in affirming the trial court’s judgment and requested federal review to correct the

alleged error. In his view, Wells Fargo lacked standing to foreclose or obtain a

deficiency judgment because it had never produced the original note for the property. He

appeals from the dismissal of his petition for lack of jurisdiction.

                                       DISCUSSION

       In his briefing before this court, Jensen has two contentions: (1) the district court

erred in dismissing the petition as barred under the Rooker-Feldman doctrine and (2)

Wells Fargo lacked standing before the Utah courts, depriving the Utah courts of

jurisdiction to enter a judgment. (Appellant Br. 19-20.) Because the district court lacked

subject matter jurisdiction to review the Utah judicial proceedings, we need not go

beyond the first issue.

       We review the district court’s dismissal de novo. See Colo. Envtl. Coal. v.

Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004). Because Jensen proceeds without the

assistance of counsel, we construe his pleadings liberally. Ledbetter v. City of Topeka,

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

       “The Rooker-Feldman doctrine establishes, as a matter of subject-matter

jurisdiction, that only the United States Supreme Court has appellate authority to review a

state-court decision.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072,

1074-75 (10th Cir. 2004) (footnote omitted). “Thus, in applying the Rooker-Feldman

doctrine, we focus on whether the lower federal court, if it adjudicated plaintiff’s claims,

                                             -3-
would effectively act as an appellate court reviewing the state court disposition.” Id. at

1075.2

         Here, Jensen asked the district court to review the proceedings before the state trial

court and the Utah Court of Appeals and to correct the errors he identified:

         Jensen requested that the U.S. District Court look at all of the evidence
         Jensen submitted and argued at the Utah Courts and Order the reversal of
         their faulty decisions. Jensen wanted the U.S. District Court to Order the
         Utah Courts to adhere to the . . . [l]aw, and require Wells Fargo to evidence
         standing.

(Appellant Br. 24.) This is exactly what the Rooker-Feldman doctrine forbids.

         Although Jensen cites Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89

(1998) in support of the district court’s jurisdiction, that case is inapposite because it did

not involve the jurisdictional problem present here: the attempt to obtain federal judicial

review of an extant state court judgment.

         The district court correctly applied the Rooker-Feldman doctrine to conclude it

lacked subject matter jurisdiction. Moreover, because the Rooker-Feldman doctrine also

forecloses us from reviewing a final state court judgment, we lack jurisdiction to consider

Jensen’s contentions of error in the proceedings before the Utah courts. See Crutchfield

         2
         In two recent cases, the Supreme Court emphasized the narrowness of the
Rooker-Feldman doctrine. The doctrine does not deprive the district court of jurisdiction
of a controversy brought by “nonparties to the earlier state-court judgment” nor does it
apply when a litigant seeks relief in federal court prior to the issuance of the state court’s
judgment. Lance v. Dennis, 546 U.S. 459, 466 (2006) (per curiam); Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005). This case, however, does not fall
within either of these exceptions; it falls neatly within the core of the doctrine because it
was brought by a “state-court loser[] complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments.” Exxon, 544 U.S. at 284.

                                              -4-
v. Countrywide Home Loans, 389 F.3d 1144, 1147 (10th Cir.2004) (“[I]f appellate review

of state court judgments is vested in the United States Supreme Court, it follows that

review is not vested in lower federal courts.”), overruled in part on other grounds by

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005); Nudell, 363 F.3d at

1074-75; see also Fed. R. Civ. P. 60(e) (abolishing writs of coram nobis and coram

vobis).

          AFFIRMED.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge

                                           -5-


315 F.Supp. 42 (1970)
FINANCIAL INDUSTRIAL FUND, INC., a Maryland corporation, Plaintiff,
v.
McDONNELL DOUGLAS CORPORATION, a Maryland corporation, and Merrill Lynch, Pierce, Fenner & Smith, Inc., a Delaware corporation, Defendants,
and
McDONNELL DOUGLAS CORPORATION, Third-Party Plaintiff,
v.
INVESTORS MANAGEMENT COMPANY, Inc., and Anchor Corporation, Third-Party Defendants.
No. C-1257.
United States District Court, D. Colorado.
August 13, 1970.
Modesitt & Shaw, by Leland E. Modesitt and Richard H. Shaw, Denver, Colo., for plaintiff; Holland & Hart, by James L. White, John F. Kelly and Edwin S. Kahn, Denver, Colo., for defendant McDonnell Douglas Corporation.
Holme, Roberts & Owen, by Peter H. Holme, Jr., Denver, Colo., and Brown, Wood, Fuller, Caldwell & Ivey, by James B. May and Roger J. Hawke, New York *43 City, for defendant Merrill Lynch, Pierce, Fenner & Smith, Inc.
Winner, Berge, Martin & Clark, by James A. Clark and Warren O. Martin, Denver, Colo., for third-party defendants.

MEMORANDUM OPINION AND ORDER
WILLIAM E. DOYLE, District Judge.
Plaintiff, a mutual fund, has instituted the present action seeking damages for alleged violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j (b), and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5. The claim is that damage resulted from first, defendants' unlawful manipulation of the price of McDonnell Douglas stock and, secondly, from illegal use of inside information in connection with the purchase or sale of said stock. Defendants Merrill Lynch, Pierce, Fenner & Smith, Inc. (hereinafter referred to as Merrill Lynch) and McDonnell Douglas Corporation have both moved for summary judgment on the ground that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. F.R. Civ.P. 56(c).
Plaintiff makes the following allegations in support of its claims:
(1) Early in 1966, McDonnell Douglas began consideration of a refinancing program which would involve calling and retiring approximately $28 million of outstanding four percent convertible debentures. Merrill Lynch was to act as agent of McDonnell Douglas in connection with the call of the outstanding debentures and the underwriting of the new debentures (success of the retirement program and success of a new offering depended on maintaining the price of the stock at a high level);
(2) Although the economic outlook for McDonnell Douglas in 1966 seemed rosy at the beginning of that year, its financial condition deteriorated substantially in the second quarter of 1966 due to increasing backlogs resulting from shortages of materials and skilled labor and also due to incorrect cost estimates on the production of DC-9 aircraft. Plaintiff contends that the public statements by McDonnell Douglas and Merrill Lynch as to the former's financial position failed to reflect this turn of events;
(3) Merrill Lynch supplied information about the true financial condition of McDonnell Douglas to favored customers prior to the public release of this information on the morning of June 24, 1966;
(4) On June 22, 1966 and June 23, 1966, plaintiff purchased 80,000 shares of common stock of McDonnell Douglas at $89.00 per share. Plaintiff made these purchases without knowledge of the true facts about McDonnell Douglas' financial situation. When McDonnell Douglas' financial picture was made public, the price of its common stock began to drop. Between July 1 and July 8, 1966, plaintiff sold its interests in McDonnell Douglas for approximately $65.00 per share, thus incurring a loss of $1,969,266.
Based on the above allegations plaintiff has described two alternative theories for recovery. First, it is contended that McDonnell Douglas, by itself or in concert with Merrill Lynch, deliberately withheld from the public, including plaintiff, material information as to its economic condition and did so in order to manipulate the price of its stock. Plaintiff claims that this manipulation was undertaken in order that the common stock into which the four percent debentures were convertible would be maintained at a level in excess of the conversion price stated in the debentures, thus allowing said debentures to be retired without cash outlay. Second, plaintiff asserts that the release of inside information by Merrill Lynch to its favored customers itself constituted a violation of Rule 10b-5 under the doctrine of Securities and Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968).
As to plaintiff's first theory, based upon manipulation of the price of *44 McDonnell Douglas stock, we are of the opinion that there are disputed issues of material fact which render summary judgment inappropriate. For example, since private actions under Rule 10b-5 are in large part governed by the same tort principles applicable to fraud, intent to defraud or its equivalent, or at least knowledge that statements disseminated to the public are false or misleading, must appear from the evidence in order to make out a violation. Indeed, stock price manipulation imports a knowing course of conduct. See, e. g., Trussell v. United Underwriters, Ltd., 228 F. Supp. 757 (D.Colo.1964). Generally, summary judgment is inappropriate where issues of motive, intent or knowledge are presented. 6 Moore's Federal Practice ¶ 56.17(41.-2). Defendants claim that the transactions which occurred between January 1 and June 23, 1966, as set forth in plaintiff's complaint, are insufficient on their face to support an inference that defendants intended to defraud or had knowledge that their informational releases to the public were false or misleading. We believe that the facts set forth in plaintiff's complaint are such that reasonable men might differ on the inferences to be drawn from them with regard to intent and/or knowledge. Resolution of conflicting inferences is, of course, the duty of the trier of fact, and hence summary judgment cannot be granted. See, e.g., Empire Electronics Co., Inc. v. United States, 311 F.2d 175 (2d Cir. 1962).
The question of intent or knowledge is not the only disputed material issue of fact which remains. Also to be determined is whether Merrill Lynch played any part in any manipulation which is shown to have occurred. Further, the question whether plaintiff relied on any misrepresentations of the defendants or either of them is yet to be resolved.
Turning to plaintiff's second theory, the theory of tipping and insider trading, defendants contend that as a matter of law no claim for relief exists under the facts alleged by plaintiff. It is doubtful that tipping which results in insider trading on a national exchange can support a private action for damages under 10b-5. Where a corporation withholds material information from the public, a certain number of persons trading on the basis of insufficient information will be injured. This injury is not increased if corporate insiders who possess inside information are trading on the exchange at the same time. It is the incomplete information, not insider trading, which is the proximate cause of the damage to other investors.
Thus, the crucial question is when the corporation has a duty to disclose information to the public. As we read those cases involving private actions under Rule 10b-5, nondisclosure may constitute a violation of the Rule when it is part of a plan of manipulation or scheme to defraud. See, e.g., Reynolds v. Texas Gulf Sulphur Co., 309 F.Supp. 548 (D.Utah 1970).
Securities and Exchange Commission v. Texas Gulf Sulphur Co., supra, does indicate that the use of inside information may constitute a violation of Rule 10b-5. This and similar cases were, however, actions instituted by the Commission and hence the question of the causal connection between insider trading and injury to specific investors was not considered. Thus, these cases seem to be of limited applicability.
However, we need not determine finally at this time whether a claim for relief does or does not exist under the tipping theory. The existence of tipping, if proven, may in any event have some probative value in connection with the claim of manipulation, and thus plaintiff will undoubtedly wish to present evidence on the issue of tipping in any event. We reserve ruling as to the validity of the tipping theory until trial.
For the foregoing reasons the motions for summary judgment should be and the same are hereby denied.
The case will proceed to trial as scheduled commencing at 9:30 a.m. on Monday, August 17, 1970.


26 F.3d 1122
U.S.v.Day*
NO. 93-8820
United States Court of Appeals,Eleventh Circuit.
June 17, 1994

1
Appeal From:  M.D.Ga.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3


505 F.Supp.2d 66 (2007)
Steven A. KAMEN, Plaintiff,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (IBEW), AFL-CIO and Edwin D. Hill, Defendants.
Civil Action No. 06-1063 (RMC).
United States District Court, District of Columbia.
August 15, 2007.
*67 *68 Bart T. Valad, Valad & Vecchione, PLLC, Fairfax, VA, Joseph H. Chivers, III, Pittsburgh, PA, for Plaintiff.
Terry Russell Yellig, Sherman, Dunn, Cohen, Leifer & Yellig, Washington, DC, for Defendants.

*69 MEMORANDUM OPINION
ROSEMARY M. COLLYER, District Judge.
Steven A. Kamen sues his former employer, the International Brotherhood of Electrical Workers, AFL-CIO ("IBEW") and its president, Edwin D. Hill, asserting that they violated the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 951 et seq., the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., the District of Columbia Human Rights Act of 1977 ("DCHRA"), D.C.Code Ann. § 2-1401.01 et seq., the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and tortiously interfered with his employment contract, when they discharged him from his position as a Senior International Representative. Defendants move to dismiss Counts II (PHRA), III (ERISA) and most of Count IV (DCHRA) of the Amended Complaint as time-barred by the respective statutes. See Defs.' Mem. of P. & A. in Supp. of Mot. to Dismiss Counts II, III, and most of Count IV of the Am. Compl. ("Defs.' Mem.") [Dkt. # 9]. Mr. Kamen opposes the motion. Because there are no facts in dispute and the points have been fully briefed, the Court will grant Defendants' motion.

I. BACKGROUND FACTS
Steven A. Kamen worked as an International Representative for the IBEW for years before he became ill and was hospitalized in February 2004. Am. Compl. ¶ 19. During his hospital stay, he was diagnosed as having contracted the human immunodeficiency virus ("HIV"). Am. Compl. ¶ 20. About the time that he was diagnosed as HIV-positive, the IBEW became aware of that Mr. Kamen is a homosexual and that he had contracted HIV. Id. ¶¶ 21-23.
Mr. Kamen returned to work for the IBEW on or about May 1, 2004. Id. ¶ 28. He asserts that he was capable of performing the essential functions of his position as a Senior International Representative when he returned to work, with or without a reasonable accommodation. Id. ¶ 32. He alleges, however, that he was denied training opportunities, was not permitted to assist at manufacturing conferences, was never given back duties he had been assigned prior to taking a medical leave, and was not promoted to a vacant position at IBEW Headquarters in Washington, D.C., even though he was the most qualified candidate for the position. Id. ¶ 33.
Mr. Kamen contends that the Defendants illegally terminated his employment on December 8, 2004. Id. ¶ 36.
A. EEOC/PHRC Administrative Complaint Process
Through his legal counsel, Mr. Kamen submitted a one-page General Information Questionnaire, a four-page General Intake Questionnaire, an eight-page ADA Intake Questionnaire, and a three-page document entitled Witness Information to Ronald Dean, Intake Supervisor, Equal Employment Opportunity Commission ("EEOC"), Pittsburgh, Pennsylvania, on April 26, 2005. See Pl.'s Response in Opp. to Defs.' Partial Mot. to Dismiss Am. Compl. ("Pl.'s Opp."), Ex. 1. The cover letter asked that the documents be filed "as Claimant Steven A. Kamen's verified Charge and Complaint of Discrimination (disability)." Id. at 1. It also asked that the charge "be dual-filed with the PHRC, with the EEOC to take the lead in the investigation." Id. At the end of the General Intake Questionnaire, the ADA Intake Questionnaire, and the Witness Information document was the following:
I hereby verify that the statements contained in this complaint, are true and *70 correct to the best of my knowledge, information and belief.
You must sign and date below:
Signature of Mr. Kamen and date of 4/16/05.
Id. (boxes around statement of verification and signature omitted).
Thereafter, on July 6, 2005, Mr. Kamen filed a formal Charge of Discrimination with the EEOC, charging the Defendants with discrimination in violation of the ADA. See Defs.' Mem., Yellig Decl. Ex. 2. This charge stated that "[o]n December 8, 2004, Edwin D. Hill, International President, informed me that I was being let go because I had been delinquent in filing the weekly reports, the expense reports, and several other assignments." Id. This document was signed and dated under the statement, "I declare under penalty of perjury that the above is true and correct." Id. The blocks for signing before a notary  "When necessary for State and Local Agency Requirements"  were left blank. Id. (italics in original). This formal charge was cross-filed with the PHRC on the same day.
By letter dated September 27, 2005, the PHRC notified the IBEW that it had received the charged filed by Mr. Kamen but that it was waiving its opportunity to investigate the charge. See Defs.' Mem., Yellig Decl. Ex. 3. "This means that EEOC will not have to wait 60 days to take action on the charge." Id. But PHRC reserved the right "to docket, serve and require an answer to the charge at some future date." Id. This procedure was followed as a result of a work sharing agreement between the PHRC and the EEOC. The Work Sharing Agreement was adopted by the EEOC and the PHRA "to provide individuals with an efficient procedure for obtaining redress for their grievances under appropriate Commonwealth of Pennsylvania and Federal laws." See Pl.'s Opp. Ex. 2 ¶ I.B. When a charge is filed with the EEOC, federal law requires EEOC to send a copy of the charge to PHRC. Defs.' Mem., Yellig Decl. Ex. 3. This happens because the EEOC must afford state agencies, such as the PHRC, the opportunity to investigate the complaint for 60 days. Id. PHRC has the discretion to waive the opportunity to investigate the charge, as it did in this case. Id.
The EEOC in Pittsburgh issued its Notice of Right to Sue (on request) to Mr. Kamen on March 15, 2006. See id., Ex. 4 (noting that 180 days had passed since the filing of the charge and that the EEOC terminated its processing of the charge).
B. DCOHR Administrative Complaint Process
Mr. Kamen filed an administrative complaint of discrimination against Defendants with the District of Columbia Office of Human Rights ("DCOHR") on May 3, 2005, which was date-stamped as received on May 9, 2005. See id., Ex. 5. This complaint alleged that the IBEW and Mr. Hill discriminated against Mr. Kamen because he is disabled by HIV infection and because of his sexual orientation. Id., Ex. 5 at 2. It stated that IBEW denied his requests to attend conferences; avoided granting him benefits; failed to accommodate his disability; created a hostile work environment; retaliated against him; subjected him to anti-gay remarks, jokes and comments; denied a promotion to the position of Director of the IBEW Broadcasting Department for which he was the only qualified candidate; and fired him because he is HIV positive and a homosexual. Id. at $. This complaint was signed before a notary public and sworn to be true and correct. Id. at 8.
Mr. Kamen filed a second, notarized charge of discrimination with the DCOHR *71 on March 16, 2006, and a third notarized charge of discrimination with the DCOHR on April 13, 2006, advancing the same essential allegations. See id., Ex. 6 & 7. Mr. Kamen withdrew from DCOHR mediation on May 8, 2006, after receiving the EEOC Right to Sue letter, which gave him the right to file this suit. Id., Ex. 8.

II. LEGAL STANDARDS
Defendants move to dismiss Counts II, III, and most of Count IV of the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) based on the expiration of the statute of limitations applicable to the respective causes of action. See Defs.' Mem. at 7. Mr. Kamen asserts that the proper standard of review is Federal Rule of Civil Procedure 12(b)(6). See Pl.'s Opp. at 1-2. "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). The Court will construe the Motion to Dismiss as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).[1]
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir. 2002). Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment]to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citations omitted). The court must treat the complaint's factual allegations  including mixed questions of law and fact  as true, drawing all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003). The facts alleged "must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1965. The court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning, 292 F.3d at 242.
In deciding a 12(b)(6) motion, the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." *72 Gustave-Schmidt, v. Chao, 226 F.Supp.2d at 196 (D.D.C.2002) (citation omitted). When a district court is not sitting as an appellate court and the district judge looks outside the complaint to factual, matters, he or she must convert a motion to dismiss into a motion for summary judgment. See Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C.Cir. 1993) (citing Gordon, 675 F.2d at 360). "[C]onversion takes place at the discretion of the court, and at the time the court affirmatively decides not to exclude the extraneous matters.'" See Microsensor, Inc. v. SMK Corp., 228 F.R.D. 39, 40 (D.D.C.2005) (citing Aamot v. Kassel, 1 F.3d 441, 445 (6th Cir.1993)). Because the facts in this case are not in dispute, and the Court will look to the undisputed facts contained in the submissions by the parties, Defendants' Rule 12(b)(6) motion is hereby considered as a motion for summary judgment. See Microsensor, Inc., 228 F.R.D. at 40; see also Swedberg v. Marotzke, 339 F.3d 1139 (9th Cir.2003) (conversion from Rule 12(b)(6) to Rule 56 cannot take place unless court indicates that it is not excluding material presented beyond the pleadings); Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp., 109 F.3d 993, 995-97 (4th Cir.1997) (same).
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial". Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

III. ANALYSIS
Defendants argue that Mr. Kamen's allegations that they violated the PHRA, the DCHRA, and ERISA are time-barred. Thus, they assert, the Court should dismiss those claims from the Complaint.
A. Claim of Disability Discrimination under the PHRA
The PHRA requires a claimant to file a verified administrative complaint with the PHRC within 180 days of the alleged action of discrimination as a prerequisite to filing suit. 43 Pa. Stat. Ann. §§ 959(a)-(h); Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir.1997) ("To bring suit under the PHRA, plaintiff must first have filed an administrative complaint with the PHRC *73 within 180 days of the alleged act of discrimination.").
Without doubt, Mr. Kamen submitted Intake Questionnaires and other documentation to the EEOC Intake Supervisor in Pittsburgh on April 26, 2005, and asked that the documents be treated "as plaintiff Kamen's verified Charge and Complaint of Discrimination (disability)." See Defs.'s Mem., Yellig Decl. Ex. 1. Without doubt, the EEOC promptly transmitted that documentation to the PHRC. The Intake Questionnaire and supporting documents contained substantive information concerning his charge and were filed within 180 days of his discharge.
Mr. Kamen argues that this filing was timely and that his signature, under a box on the form that states, "I hereby verify . . ." with the instruction to sign and date below, id., was sufficient to satisfy the EEOC and, by extension, the PHRC, under the Work Share Agreement between them. He warns that "Defendant[s are] asking this Court to ignore the clear pronouncements of both the federal and state agencies regarding not only the process for filing a Charge of Discrimination but also to ignore both agencies' obvious acceptance of Kamen's charge for jurisdictional purposes." Pl.'s Resp. to Defs.' Mem. of P. & A. in Supp. of Mot. to Dismiss at 2.[2] Mr. Kamen distinguishes Commonwealth of Pennsylvania v. School District of Philadelphia, 532 Pa. 547, 616 A.2d 969 (1992),[3] because plaintiff in that case had failed to file any charge, whether verified or not, until nearly two years after he was told that his contract would not be renewed. Id. at 970-971. Inasmuch as there is no doubt that Mr. Kamen's Intake Questionnaires were timely submitted to the EEOC and PHRC, and "verified" by his signature as directed, Mr. Kamen urges the Court to reject Defendants' motion to dismiss Count II.
Defendants do not rely on the 1992 case which Mr. Kamen has ably distinguished from his own situation. Rather, they cite Commonwealth of Pennsylvania v. School District of Philadelphia, 522 Pa. 436, 562 A.2d 313, (1989), a completely different case. In the 1989 case, the mother of an African-American student filed an unverified charge with PHRC complaining that her son had been discriminated against by his school. The unverified charge was filed on or about July 1, 1986, by way of a "completed Commission questionnaire from Sandra Lewis alleging that the School District of Philadelphia had discriminated against her son because of his race." Id. at 314. This questionnaire was filed within 90 days after the alleged discrimination, as the law then required. A verified charge containing the same allegations was filed on November 24, 1986, more than 90 days after the student left the offending school. Id. When the school district moved to dismiss the charge as time-barred, a hearing officer ruled against it. "The hearing officer treated the questionnaire as an unverified complaint, the lack of verification having been `corrected' within a reasonable time by the filing of the complaint form in November." Id.; see 16 Pa.Code § 42.11(d) ("complaints that do not fully conform with *74 § 42.31 . . . will be considered filed on the date received by the Commission but may be quashed at the discretion of the Commission if such non-conformity is not remedied by amendment or otherwise within a reasonable time"). The PHRC attempted to investigate the charge by serving a subpoena on the school district, which refused to comply in order to obtain judicial review of whether the charge was timely. "The Commonwealth Court rejected the Commission's reasoning and denied its petition for enforcement of the subpoena," instead finding that timely verification was necessary. Id.
The evenly split (3-3) Pennsylvania Supreme Court left the decision of the Commonwealth Court the current state of the law in Pennsylvania. Two Justices joined Justice Zappala in a decision affirmed the lower court. The decision quoted Murphy v. Commonwealth, 506 Pa. 549, 486 A.2d 388, 392 (1985), which held:
[b]y statute the jurisdiction of the Human Relations Commission may be invoked by filing a verified complaint `which shall set, forth the particulars' of the discrimination practice complained of. 43 P.S. § 959. (citation omitted). A filing which does not comply with these strictures improperly invokes the Commission's jurisdiction, and is in fact a nullity.
Commonwealth v. School District of Philadelphia, 562 A.2d at 314. Applying the same reasoning, Justice Zappala "reject[ed] `the contention that the second pleading corrected the first, since [it] could not properly be construed to convey ex post facto jurisdiction beyond the statutory limit.'" Id. at 314-315 (quoting Murphy v. Commonwealth, 486 A.2d at 392).
Two other Justices joined Justice Larsen in an Opinion in Support of Reversal. Commonwealth v. School District of Philadelphia, 562 A.2d at 315. Justice Larsen described formal verification as only a "technical rule of pleading and practice," id. at 316 (citation omitted), and held that the PHRA should be liberally construed to give effect to its purpose. Therefore, Justice Larsen concluded that "the failure of Mrs. Lewis to conform to the verification requirement was cured by the filing, within a reasonable time, of the second verified complaint." Id. at 316-317.
This 1989 decision of the Pennsylvania Supreme Court applies with special force here. While the Justices split on whether an initial unverified questionnaire could be corrected by a later verified complaint, all agreed that a formally verified complaint must be filed with the PHRC to invoke its jurisdiction. Mr. Kamen filed his administrative complaint with the PHRC in Pittsburgh, Pennsylvania, on July 6, 2005. See Defs. Mem., Yellig Decl., Ex. 2. This was not within the 180 days of the alleged act of discrimination; the IBEW terminated the Mr. Kamen's employment on December 8, 2004.[4]See Am. Compl. ¶ 36. The willingness of the federal EEOC to accept Mr. Kamen's Questionnaires notwithstanding, each State establishes for itself the requirements for invoking its administrative processes. Thus, for instance, all the charges that Mr. Kamen filed with the DCOHR were formally notarized. Indeed, the formal EEOC charge form itself provides a block for notarization if required by a State or local EEO agency.
The difference of opinion among the Justices of the Pennsylvania Supreme Court has not been clarified in the years since the 1989 opinion. The federal courts *75 in Pennsylvania, have therefore held that technical defects in an initial pleading are fatal and incurable without a timely amendment under the PHRA. See Allen v. City of Philadelphia, No. 05-2755, 2006 WL 563015, *1, 2006 U.S. Dist. LEXIS 9048, *2 (E.D.Pa. Mar. 8, 2006) (rejecting argument that Charge of Discrimination, filed with EEOC and cross-filed with PHRC 7 days after 180-day statutory time limit, related back to Charge Questionnaire submitted to EEOC within 180 days of discharge). Some courts have predicted that the Pennsylvania Supreme Court will adopt Justice Larsen's Opinion in Support of Reversal. Valentin v. Am. Red Cross, Penn Jersey Region, No. 01-6609, 2003 U.S. Dist. LEXIS 7612 (E.D.Pa. Apr. 11, 2003); Hayman v. WYXR-FM, No. 91-6444, 1992 WL 210113, *5, 1992 U.S. Dist. LEXIS 12501, 16-17 (E.D.Pa. Aug. 21, 1992); Vuong v. J.C. Penney, No. 04-3940, 2005 WL 1353394, 2005 U.S. Dist. LEXIS 19150 (E.D. Pa. June 1, 2005). The Vuong court "ascribed to the reasoning" of Valentin and Hayman, but acknowledged that the 1989 decision in Commonwealth v. School District of Philadelphia "leav[es] the state of Pennsylvania such that technical defects in an initial pleading are fatal, and incurable by untimely amendment." Vuong, 2005 WL 1353394, "3-4, 2005 U.S. Dist. LEXIS 19150 at *11.
Having belatedly filed his administrative complaint with the PHRC, Mr. Kamen cannot now sue for alleged violations of the PHRA. Count II of his complaint must be dismissed as a matter of law.
B. Claims of Sexual Orientation Discrimination under the DCHRA
The initial complaint in this matter was filed on June 6, 2006, soon after Mr. Kamen received the Right to Sue letter from the EEOC. Defendants argue that most of the claims in Count IV, which allege violations of the DCHRA because of Mr. Kamen's sexual orientation, are time-barred because suit was not filed within one year of his discharge on December 8, 2004, even though it is undisputed that he filed timely administrative complaints within the one-year period.[5]See Defs. Mem., Yellig Decl. Ex. 5 (administrative complaint received May 9, 2005). Mr. Kamen argues that Vitikacs v. Am. Legion, No. 02-CA-1-202, 2003 WL 22004935 (D.C.Super. June 8, 2003), recognized that filing an administrative complaint with DCOHR tolls the DCHRA statute of limitations and, therefore, none of the claims in Count IV is time-barred. See Pl.'s Opp. at 4.
The only problem with Mr. Kamen's argument, which understandably relies on Vitikacs, is that the D.C. Court of Appeals had already held, in Anderson v. United States Safe Deposit Co., 552 A.2d 859, 863 (D.C.1989), that filing an administrative complaint with the DCOHR does not toll the DCHRA statute of limitations period of one year to file a court complaint. *76 Id. (holding that DCHRA statue of limitations bars any court suit not brought within one year of its occurrence, regardless of whether plaintiff initially filed an administrative complaint). See also Weiss v. Int'l Bhd. of Elec. Workers, 729 F.Supp. 144, 146 (D.D.C.1990) (following Anderson); Clifton v. Fed. Nat'l Mortgage Ass'n, No. 97-2302, 1998 WL 419741, at *2 (D.D.C. Jan.14, 1997) (finding that filing an administrative complaint with DCOHR does not toll DCHRA statute of limitations period). Vitikacs did not cite or distinguish Anderson and, in any case, the D.C. Court of Appeals serves as the supreme court for the District of Columbia and has the final word on questions of law. Anderson clearly distinguished Title VII, which does toll the statute of limitations during the administrative process, from the DCHRA:
We perceive no such policy [preferring administrative remedies before court suits] in our local act, as the commission of a discriminatory practice immediately vests a person aggrieved thereby with "a cause of action in any court of competent jurisdiction unless such person has filed a complaint . . . [with the OHR]." In short, unlike the federal statute, the Act provides for an ab initio election of remedies.
The same subsection discloses that the exercise of choice to go the administrative route does not forever bar a complaint from access to the courts. If complainant decides to reverse course and withdraws the OHR complaint (presumably before the deadline fixed by § 1-2544)[6] a proviso states that the complaint "shall maintain all rights to bring suit, as if no complaint had been filed." The underscored clause makes it clear, that a grievant who files an administrative complaint and then withdraws it in timely fashion is on no better footing than a grievant who passes up the administrative process and elects to sue. If the latter does not commence suit until fourteen months after the allegedly discriminatory discharge, such suit would obviously be barred by the one year limitations period. Plainly the first grievant is not entitled to different treatment upon also failing to file suit within a year.
We deem the provision to subsection 1-2556(a) as dispositive of the tolling issue and therefore hold that the appellant's failure to begin her action in the Superior Court within one year after the asserted discriminatory act occurred, was a compelling ground for dismissal.
Anderson, 552 A.2d at 862-63 (footnotes and internal references to footnotes omitted and emphasis in original). Anderson has been fully accepted by the federal courts in the District of Columbia. See Coleman v. Potomac Electric Power Co., No. 04-7043, 2004 WL 2348144, *1, 2004 U.S.App. LEXIS 21820, at * 2 (D.C.Cir. Oct. 19, 2004) ("In addition, the district court correctly held appellant's claim under the D.C. Human Rights Act of 1977 (`DCHRA') time-barred. See D.C.Code § 2-1403.16(a) (statute of limitations for DCHRA claims is one year)", aff'g Coleman v. Potomac Electric Power Co., 310 F.Supp.2d 154, 159 (D.D.C.2004)).
As a result, the claims in Count IV that Mr. Kamen was denied training opportunities, not permitted to assist at IBEW manufacturing conferences, never restored duties he had been assigned before his sick leave, denied promotion, and terminated because of his sexual orientation, are time barred by the one-year statute of limitations period under the DCHRA. Vitikacs notwithstanding, the controlling precedent *77 of the D.C. Court of Appeals and the United States Court of Appeals for the District of Columbia Circuit compel this conclusion.
C. Claim of Wrongful Discharge Under ERISA § 510
Count III of the Amended Complaint alleges that Defendants terminated Mr. Kamen's employment in violation of § 510 of ERISA, 29 U.S.C. § 1140.[7] Essentially, Mr. Kamen alleges that Defendants violated ERISA when they terminated his employment in order to interfere with his continuing receipt of health benefits under an IBEW-sponsored employee welfare benefit plan. Defendants argue that this claim is time-barred because Mr. Kamen's termination occurred more than one year before suit was filed. Mr. Kamen argues that the applicable statute of limitations allows two years after discharge to file suit and, therefore, his ERISA claim is timely.
The uncertainty arises because § 510, which allows complaints of discrimination based on ERISA benefits, does not contain its own statute of limitations. When Congress fails to establish a time limitation for a federal cause of action, the courts adopt a local time limitation if it is not inconsistent with federal policy to do so. Watts v. Parking Mgmt., No. 02-2132, 2006 WL 627153, *3, 2006 U.S. Dist. LEIS 12873, *8 (D.D.C. March 12, 2006) (citing North Star Steel Co. v. Thomas, 515 U.S. 29, 33, 115 S.Ct. 1927, 132 L.Ed.2d 27 (1995) & Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)).
A court looks "to the state statute of limitations governing cases most analogous to the cause of action asserted by the plaintiff' in order to determine the federal limitations period. Id. In Watts, the plaintiff complained that the employer had terminated him because of his age so as to prevent him from receiving retirement benefits. Id. 2006 WL 627153, *3, 2006 U.S. Dist LEXIS 12873, *10. The court found that these allegations were "precisely the kind of facts and type of allegations one would expect to see in a claim for wrongful or discriminatory termination based, on age." Id. Therefore, it held that "the statute most closely analogous to Section 510 is the District of Columbia's wrongful discharge/employment discrimination statute  the DCHRA." Id. at 2006 WL 627153, **3-4, 2006 U.S. Dist. LEXIS 12873, **10-11. The Watts court rejected the plaintiff's arguments that the three-year statute of limitations applicable to contract actions or the "catch-all" three-year statute of limitations should apply. Id. Watts itself was following the precedents of the Second, Fifth, Sixth, Seventh, Ninth and Eleventh Circuits, id. at 2006 WL 627153, *4, 2006 U.S. Dist. LEXIS 12873, **13-14, which the D.C. Circuit had already cited approvingly. Id. at 2006 WL 627153, *4, 2006 U.S. Dist. LEXIS 12873, *13 (noting that "the D.C. Circuit in Andes v. Ford Motor Co. [70 F.3d 1332, 1337 n. 7 (D.C.Cir.1995)] cited with approval the decisions of the other jurisdictions to apply the state statute of limitations for wrongful discharge or employment discrimination to Section 510 claims").
*78 Defendants urge the Court to adopt the reasoning of Watts and to apply the one-year statute of limitations from the DCHRA because the gravamen of Mr. Kamen's complaint is that they wrongfully terminated his employment because of his sexual orientation, and his ERISA claim is based on the same set of facts. See Defs.' Mem. at 28-29. Mr. Kamen counters that the most apt limitations period under local law is two years for wrongful discharge in violation of public policy. He cites the analysis used by the Seventh Circuit in Berger v. AXA Network, LLC, 459 F.3d 804 (7th Cir.2006). Berger, however, looked to the tort of retaliatory discharge contained in state workers' compensation law, not wrongful discharge against public policy. Id. at 814-15. An action for retaliatory discharge for filing a workers' compensation claim in the District of Columbia is one year, D.C.Code § 1514 (2006), so the Berger analogy is of no assistance of Mr. Kamen.
In the District of Columbia, the statute of limitations applicable to a claim of wrongful discharge in violation of public policy is the three-year "catch-all" statute of limitations set forth in D.C.Code § 12-301(8) (2006). Stephenson v. Am. Dental Ass'n, 789 A.2d 1248, 1249 (D.C.2002) ("There is no dispute that his claim, based on public policy, is governed by the three-year statute of limitations set forth in D.C.Code § 12-301(8) (2001)."). Ultimately, this case law is of no help to Mr. Kamen. The District of Columbia Court of Appeals has recognized a "public policy exception to the `at-will' employment doctrine . . . based on the employee's refusal to perform an illegal act," Stephenson, 789, A.2d at 1249 (citing Adams v. George W. Cochran & Co., 597 A.2d 28, 33 (D.C. 1991)). No similar allegation is made here to show an analogous public policy breach.
The Court agrees with Defendants that Mr. Kamen's claim in Count III, although arising under ERISA § 510, most closely resembles a discrimination claim under the DCHRA. Therefore, a one-year statute of limitations from the DCHRA should be borrowed, which means that the suit was filed too late to be maintained under ERISA. Count III will be dismissed.

IV. CONCLUSION
For the reasons stated in this memorandum opinion, Counts II, III and most of Count IV will be dismissed. A memorializing order accompanies this opinion.
NOTES
[1]  The Court notes that "[f]airness, not excessive technicality is the guiding principle under . . . the Federal Rules of Civil Procedure." Flynn v. Ohio Building Restoration, Inc., 260 F.Supp.2d 156, 161 n. 4 (D.D.C.2003) (citing Gordon v. Nat'l Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982)). In this case, the parties will not be prejudiced by the Court's consideration of Defendants' motion pursuant to the standards of Rule 12(b)(6). The parties do not disagree about the facts but rather about purely legal issues, which have been fully briefed, and neither party has requested the opportunity to submit additional evidence because presumably they have submitted the documentary evidence they believe supports their respective arguments. Federal Rule of Civil Procedure 12(b)(6) allows the Court to consider matters outside of the pleadings and accompanying memoranda by converting the motion into one for summary judgment. See Fed.R.Civ.P. 12(b)(6).
[2]  The Court grants Mr. Kamen's opposed Motion for Leave to File Response to Defendants' Reply Memorandum in Support of Motion to Dismiss [Dkt. # 13].
[3]  The Court notes that Mr. Kamen's citation to 532 Pa. 547, 616 A.2d 969 (1992) is actually Vincent v. Fuller, Co., 532 Pa. 547, 616 A.2d 969 (1992), which involved another decision by the Supreme Court of Pennsylvania that held that filing an unverified age discrimination complaint with the state Human Rights Commission, along with a previously verified complaint, was insufficient to invoke the Commission's jurisdiction.
[4]  By this calculation, Mr. Kamen's administrative complaint was filed 210 days after his employment was terminated.
[5]  Defendants do not move to dismiss those allegations in Court IV of the Amended Complaint that allege that Defendants "have had and continue to maintain through the present a policy and practice of hostility and prejudice towards homosexuals." Am. Compl. ¶ 83. The Court must accept all factual allegations of a complaint as true when considering a motion to dismiss pursuant to Rule 12(b)(1), unless they can be refuted by undisputed facts evidenced in the record. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003). Defendants admit that at, this stage of the litigation they cannot assert that Mr. Kamen will be unable to establish a set of facts that support the allegation that defendants currently maintain a policy and practice of hostility and prejudice toward homosexuals. See Defs. Mem. at 27 n. 6.
[6]  Section 304 of the. DCHRA was numbered in the D.C.Code at the time of Anderson at § 1-2544. It has subsequently been renumbered in the D.C.Code as § 2-1403.04.
[7]  Section 510 provides:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act [29 U.S.C. § 301 et seq.], or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pensions Plan Disclosure Act.
29 U.S.C. § 1140 (2005).


309 B.R. 819 (2004)
In re PERFORMANCE MATERIALS, INC., Debtor.
Alan Morris, Individually; Buddy D. Ford, Esquire; and Buddy D. Ford, P.A., Plaintiffs,
v.
Joseph Puleo, Individually; Florida Pool Finishers, Inc.; Brett Wadsworth, Esquire; and Brett Wadsworth, P.A., Defendants.
Bankruptcy No. 01-03452-8W7. Adversary No. 03-516.
United States Bankruptcy Court, M.D. Florida, *820 Tampa Division.
May 17, 2004.
Buddy D. Ford, Tampa, FL, for Debtor/Plaintiffs.
Brett Wadsworth, Tampa, FL, for Defendants.

FINAL DECLARATORY JUDGMENT ON PLAINTIFFS' VERIFIED MTION FOR SUMMARY JUDGMENT AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
MICHAEL G. WILLIAMSON, Bankruptcy Judge.
THIS PROCEEDING came on for hearing April 9, 2004, upon Plaintiffs' Motion For Summary Judgment (Doc. No. 37) and Defendants' Motion For Summary Judgment (Doc. No. 41). The issue before the Court is the interpretation of an order entered April 19, 2002, which authorized the sale of an asset in this bankruptcy case (Doc. No. 85 in the main bankruptcy case, Case No. XX-XXXXX-XW7) ("Order"). The Court having considered the record, including the pleadings, and having heard argument of counsel, enters judgment on count I of the declaratory judgment action as follows:

Summary Judgment Standard
Pursuant to Rule 7056(c) of Federal Rules of Bankruptcy Procedure and Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment *821 has the initial burden of establishing the nonexistence of any "genuine issue of material fact." Celotex Corp. v. Catrett, All U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court should grant summary judgment if it is clear that a trial is unnecessary. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This said, summary judgment must be granted when the movant's burden has been satisfied. Id., 477 U.S. at 251, 106 S.Ct. 2505. Once the movant presents sufficient competent evidence to entitle it to summary judgment, the non-movant cannot rest merely on averments and denials in its pleadings, but must set forth specific facts demonstrating genuine issues for trial. In re Ralar Distributors, Inc., 4 F.3d 62, 67 (1st Cir.1993); see also, E.F. Hutton & Co., Inc. v. Hadley, 901 F.2d 979, 983-984 (11th Cir.1990) (citations omitted).

Jurisdiction
Section 1334(b) of title 28, U.S.C, confers original, but not exclusive jurisdiction on all civil proceedings arising under title 11 or arising in or related to cases under title 11. The Order that is the subject of the declaratory judgment action entered in this case involved a sale pursuant to section 363 of the Bankruptcy Code (the Order also was entered pursuant to Rule 6004, which pertains to sales of property, and Rule 2002(c), which pertains to contents of a notice of sale of property). One of the core matters that falls within bankruptcy court jurisdiction is an order approving a sale of property of an estate. 28 U.S.C. § 157(b)(2)(N). It is clear that not only does the court have jurisdiction, but that the interpretation of orders of the court as they relate to the sale of property of an estate are within the "core" jurisdiction of this court. Petrie Retail, Inc., 304 F.3d 223, 228-230 (2d Cir.2002) (dispute based on rights established in the sale order issued by the bankruptcy court was a "core" matter). Accordingly, this Court finds that it has jurisdiction to interpret this Court's Order.

Findings of Fact
By previous order (Doc. No. 27), the Court remanded part of this removed adversary proceeding and dismissed count II of the complaint. Thus, the only matter that remains pending before this Court is the declaratory judgment actionwhich seeks a declaration of certain rights that arose with respect to these parties as a consequence of a sale that occurred during the administration of the chapter 7 case.[1]
This case was originally filed as one under chapter 11 on March 5, 2001. The debtor, Performance Materials, Inc. ("Debtor"), was a corporation established by Alan Morris ("Morris")(a plaintiff in this adversary proceeding) for the purpose of acquiring the assets of a business owned by defendant Joseph Puleo ("Puleo"). A business dispute arose among Morris, the Debtor, and Puleo concerning Puleo's alleged obligations under a covenant not to compete.
The potential violation by Puleo of the covenant not to compete was listed as an asset in the bankruptcy schedules filed in the original chapter 11 case. See Schedule B, paragraph 20, which specifically described as an asset a "possible cause of action against former owner Charles Joe Puleo," under the category of property titled "other contingent and unliquidated claims of every nature." (The cause of *822 action is hereinafter described as "Action".)
The Action was also referenced in the disclosure statement filed in the chapter 11 case (Doc. No. 34 in the main bankruptcy case, Case No. XX-XXXXX-XW7). At page 6, the disclosure statement states that "the debtor will orderly liquidate its assets and will commence a lawsuit against Mr. Puleo and the new company, Florida Pool Finishers, Inc., to fund the plan."
Unfortunately, the chapter 11 case was unsuccessful and it was voluntarily converted to one under chapter 7. Thereafter, John Brook was appointed as chapter 7 trustee ("Trustee"). The Action, as set forth in the schedules, would be one of the assets to be administered by the Trustee.
In his administration of the chapter 7 estate in dealing with this particular asset, on January 3, 2002, the Trustee filed a report and notice of intention to sell property of the estate (Doc. No. 74 in the main bankruptcy case, Case No. XX-XXXXX-XW7) (collectively, "Notice of Intention"), pursuant to Bankruptcy Code section 363 and Bankruptcy Rules 6004 and 2002(c) which are the operative provisions governing sales of property of a bankruptcy estate.
The Notice of Intention describes the property being sold as the "potential lawsuit for violation of non-compete against Charles J. Puleo."[2] The original sale price was $250.00 and the potential buyer was Mr. Puleo. The sale, as is typical of bankruptcy sales, also provides that no warranties of any kind are provided and that the sale was subject to higher and better offers.[3]
Objections to the proposed sale were filed by two parties, Morris and CIT, the primary secured lender of the Debtor (Doc. Nos. 75 and 77). It appears that CIT held a floating Article 9 lien on the Debtor's contract rights and general intangibles and, therefore, asserted a claim. To the extent that this potential lawsuit constituted either of those, CIT did not want to waive its claim to credit bid.
Thus, the Court scheduled a hearing on the objections for March 21, 2002 ("Hearing"). At the Hearing, the Court sustained the objections and ordered an auction of the Action, which produced a higher bid by Puleo in the cash amount of $9,900.00. The Order authorizing the sale by the Trustee states, in relevant part, that: "[t]he Court approves the sale of the estate's tort and non-contract claims to Joseph Puleo for the sum of $9,900 (cash)...."

Discussion
Puleo thereafter asserted in the state court action that the effect of the Order was to actually effect the conveyance of all of the bankruptcy estate's tort and non-contract claims against not only Puleo but also against other parties, specifically Morris, and Morris's attorney, Buddy Ford, and Mr. Ford's law firm, Buddy Ford, P.A. (collectively, "Ford"). It is this assertion that has caused Morris and Ford to invoke the jurisdiction of this Court seeking a declaration as to whether *823 Puleo's assertion is a valid one. For the reasons set forth below, the Court concludes that Puleo's position does not have merit.
To understand the Order, one needs to understand the underlying mechanics of the liquidation process of a bankruptcy estate. First, the Court is not the party selling the asset because it is not the representative of the estate under section 323 of the Bankruptcy Code. The actual party is the bankruptcy trustee, who has that function and is the party with power to sell assets of the bankruptcy estate. 11 U.S.C. §§ 323, 363. The trustee's right arises from section 363 of the Bankruptcy Code. Where a sale is not in the ordinary course of business, as was the situation here, court approval is necessary. Armed with court authority, the trustee then sells or liquidates the assets. In the ordinary case, the trustee obtains the authority (which can be broad) from the Court to conduct a private sale or an auction. The order granting such authority may not even be very specific and may only generally describe the assets for sale at an auction.
While the order granting the authority under which the trustee acts may be very broad, the Bankruptcy Rules have very specific requirements for conducting such sales. For example, Bankruptcy Rule 6004(f) requires that a notice be filed with the court that provides a statement of the specific property sold and the name of each purchaser. Additionally, Bankruptcy Rule 2002(c)(1) also requires that parties in interest receive notice of the proposed sale, and that notice must generally describe the property to be sold.
In this case, the Notice of Intention provided pursuant to Rules 6004 and 2002described the asset being sold as the "potential lawsuit for violation of noncompete against Charles J. Puleo." There was no issue as to the adequacy of service to creditors nor was there any objection regarding the content of the Notice of Intention.
The operative document that effectuates the sale is the assignment. In this case, the assignment specifically transferred the estate's interest in the action for violation of the non-compete agreement against Charles J. Puleo, Performance Marcite, Inc., and Florida Pool Finishers, Inc. to Charles Puleo ("Assignment").
In light of the language in the Notice of Intention and the Assignment, it is clear that the Trustee only sold and assigned to Puleo the non-contract rights and claims that the estate had against Puleo, Performance Marcite, Inc., and Florida Pool Finishers, Inc. There is no ambiguity in this regard in the Assignment or the Notice of Intention. While the Order authorizing the sale is broader in its description than the Assignment and the Notice of Intentionthe documents effectuating the salethe Order itself does not operate to cause the sale to occur. The Order instead merely authorized the Trustee to conclude the sale to Puleo, consistent with the Notice of Intention and Assignment.
To reiterate, the only asset sold to Puleo was the Action, that is, the estate's claims against Charles Puleo, Performance Marcite, and/or Florida Pool Finishers and their respective assigns and beneficiaries. If there were other claims against other parties, they were not sold. Whether or not the Trustee had the right to sell any other asset under that Order is irrelevant because he failed to do so. The Order did not itself cause the sale to happen, it only authorized the sale by the Trustee.
Accordingly, the Court declares that the parties' rights under the Notice of Intention and Order are limited to the sale of the claims of the Debtor against Charles *824 Puleo, Performance Marcite, and/or Florida Pool Finishers and their respective assigns and beneficiaries only. The Court hereby enters judgment accordingly. The Court denies all other relief request by either party in the respective motions for summary judgment.
NOTES
[1]  The Court incorporates its findings and conclusions as set forth in the transcript of the hearing conducted November 25, 2003, in this case, to the extent they have not been clarified or supplemented by the Court in the hearing held on April 29, 2004, and this judgment.
[2]  At the time the Notice of Intention was filed, Alan Morris and the Debtor had pending before the Circuit Court of the Thirteenth Judicial Circuit a suit against Charles Puleo, Florida Pool Finishers, Inc., and Performance Marcite, Inc.
[3]  It may seem peculiar to be selling a lawsuit against a person to the person who is the defendant; however, that is a very common practice in bankruptcy court because the defendant is given an out from litigation and usually will offer something just for finality of having pending litigation resolved. The defendant then dismisses the lawsuit against the defendant. In a typical case, that ends the litigation.


471 F.2d 647
Ashtonv.Thornley Realty Co.
72-1752
UNITED STATES COURT OF APPEALS Second Circuit
Feb. 1, 1973
S.D.N.Y., 346 F.Supp. 1294