the cause of Mr. Grady’s death was a heart attack. (R. 96, Pl.’s Resp. at 7.) Moore states that it did not became clear until “well into discovery when the Plaintiff came into actual knowledge that his father died from the wrongful acts of the Defendants, not from natural causes.” (Id.) He further alleges that Defendants were actively involved in concealing their involvement in Mr. Grady’s death, preventing Moore from discovering the wrongful death cause of action prior to the expiration of the two year statute of limitations. (Id. at 12.) Moore’s factual allegations, even though they do not point to a specific date of discovery of the additional defendants’ wrongdoing, are sufficient to establish a defense to the statute of limitations if proven. Compare Clark, 318 F.3d at 768 (<HOLDING>). B. Equitable Tolling In addition, Moore has
recognizing that statute of limitations questions may be resolved on a motion to dismiss holding that defendants failure to assert the defense in any pretrial motions did not waive defendants limitations defense because the assertion of a limitations defense in the answer preserved defendants right to raise the defense both during the first trial and before the second holding that a statute of limitations defense first raised in a motion to dismiss at the close of the plaintiffs evidence was untimely holding that the burden is on the plaintiff to allege facts sufficient to establish jurisdiction holding that the plaintiffs reply to the defendants motion to dismiss which did not allege a specific date of discovery was still sufficient to establish a potential defense to the statute of limitations