Appeal from order of United States District Court for the Western District of New York, John T. Curtin, Ch. J., denying defendant's motions for dismissal and summary judgment and granting plaintiff's motion to amend the complaint to correctly name the defendant. Affirmed.
Before Feinberg, Mansfield and Smith, Circuit Judges.
Defendant, Vijay S. Kumar, a physician residing in Jamestown, New York, appeals from an order of the United States District Court for the Western District of New York, John T. Curtin, Ch. J., that denied Kumar's motion for summary judgment and granted the cross-motion of Reberta Ingram, a resident of Illinois, to correct the spelling of defendant's name in the complaint from Vijaya N. Kumar to Vijay S. Kumar. In this medical malpractice action, plaintiff sues on her own behalf and as administratrix of the estate of her husband, Walter Ingram, and alleges in various causes of action that defendant's negligent treatment of her husband in January 1975 inflicted pain and suffering upon him while alive, and caused his eventual death and her own loss of consortium. The basis of defendant's motion was that the action is barred by the applicable two-year statute of limitations. Although Judge Curtin denied the motion, he certified his order under 28 U.S.C. § 1292(b), and a panel of this court granted leave to appeal. We affirm the order of the district court.
The relevant facts, for the purpose of this appeal, may be assumed to be as follows. Defendant Dr. Vijay S. Kumar, a neurosurgeon, treated plaintiff's decedent in Illinois from January 6 to January 13, 1975, and sometime thereafter moved to New York. On December 28, 1976, plaintiff commenced her action in the United States District Court for the Southern District of New York, by filing a summons and complaint with the Clerk of the court naming Vijaya N. Kumar as defendant. To locate defendant, plaintiff's counsel had consulted the New York State Medical Directory and found the name of Vijaya N. Kumar, a physician in Valhalla, New York, and thus believed this to be the proper spelling of defendant's name. When service of process was attempted on Vijaya N. Kumar, it was learned that this doctor had never treated plaintiff's decedent. Later investigation revealed a Dr. Vijay S. Kumar, residing in Jamestown, New York, who was served with the original complaint on May 6, 1977. On defendant's motion to dismiss the action for improper venue Valhalla is in the Southern District, Jamestown in the Western the action was transferred to the latter district. Defendant then filed an answer raising no affirmative defense, but two days later amended the answer to plead the statute of limitations. Defendant then moved for summary judgment and also to dismiss under Fed.R.Civ.Proc. 41(b) for plaintiff's alleged failure to prosecute, because plaintiff had not yet served a complaint upon defendant designating Vijay S. Kumar as defendant. Plaintiff then cross-moved under Fed.R.Civ.Proc. 15 to amend her complaint to change defendant's name therein from Vijaya N. Kumar to Vijay S. Kumar.
The motions were argued before Judge Curtin, who ruled in favor of plaintiff in a nine-page, unreported memorandum opinion. On defendant's claim that plaintiff had failed to exercise due diligence in serving him, the judge exercised his discretion under Rule 41(b) and denied the motion to dismiss. With regard to defendant's motion for summary judgment based on the statute of limitations and plaintiff's cross-motion under Rule 15, the judge viewed plaintiff's motion "as one to correct a misnomer (rather) than as one to substitute parties." The judge granted plaintiff's motion and held that the amendment related back to the date on which the complaint was filed in December 1976. Under Sylvestri v. Warner & Swasey Co., 398 F.2d 598 (2d Cir. 1968), the action therefore was not barred even though service on defendant was made after the two-year statutory period, and defendant's motion was denied.
The questions thus posed seem deceptively simple, but the statement of at least 10 issues in appellant's brief on appeal and the plethora of cases wrestling with "relation back" amendments under Rule 15(c) suggest that a close look at the district court's action is warranted. The main attack on appeal is on our decision in Sylvestri v. Warner & Swasey Co., supra, written by then Chief Judge Lumbard and joined in by one member of this panel. In that case, we held that merely filing a complaint with the district court in a diversity action commences the action for the purpose of the statute of limitations even though under the law of the state in which the district court is located, only service of process upon the defendant could achieve that result. The opinion contained a lengthy analysis of the effect of Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965) on Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S. Ct. 1233, 93 L. Ed. 1520 (1949) and concluded that "Rule 3, Fed.R.Civ.P. is the proper measure of the commencement of (the) action for purposes of the statute of limitations. . . ."*fn1 Id. at 606. Appellant claims that the decision in Sylvestri is inapplicable and that even if it does apply, it should be overruled as unconstitutional or unwise.
As a basis for distinction, appellant points out that in Sylvestri, the New York resident was the plaintiff, while here it is the defendant. We do not regard this distinction as significant. Defendant also emphasizes that the panel in Sylvestri noted that, unlike the situation here, "the defendant had actual notice of the action long before the three year (limitations) period under the New York statute expired." 398 F.2d at 606. This observation, however, was made in the context of a discussion of the plaintiff's duty under Fed.R.Civ.Proc. 4(a) to use due diligence in serving process upon a defendant after filing a complaint.
Asserting that Sylvestri represents a minority view in the federal courts,*fn2 appellant also vigorously urges us to overrule that decision primarily because it encourages forum shopping. This panel, of course, is bound by Sylvestri and cannot properly overrule it except by rehearing en banc. Moreover, our acceptance of its binding force is not grudging; we think the decision was correct for the reasons there given.*fn3 Finally, appellant claims that the Sylvestri doctrine denies him due process and the equal protection of the laws. We note that a substantial number of states provide that the statute of limitations is tolled when the action is filed rather than when service is made on a defendant.*fn4 This includes Illinois, where defendant committed his allegedly negligent acts. See Ill.Ann.Stat. ch. 110, § 13; ch. 70, § 2 (Smith-Hurd); Jackson v. Navik, 17 Ill.App.3d 672, 308 N.E.2d 143, 145 (Ill.App.1974). Even in New York, as indicated in the quotation from Sylvestri in note 3 above, the statute of limitations may be tolled for 60 days by filing the summons and complaint with the Sheriff or with the County Clerk within the City of New York. New York Civ.Prac.Law § 203(b)(5) (McKinney Cum.Supp. 1977-78). We can find no case in which the constitutionality of these provisions has been seriously challenged, and we hold the claim of unconstitutionality to be without merit.
We assume, then, that under ordinary circumstances, plaintiff tolled the running of the statute of limitations by filing her complaint in the Southern District on December 28, 1976, shortly before the end of the applicable two-year period. Appellant, however, stresses that the circumstances here were not ordinary, and claims that when a plaintiff has named the wrong defendant and the statute of limitations has run, plaintiff may not amend the complaint and the action is barred. Appellant also argues that in any event, the delay in serving the right defendant required dismissal under Rule 41(b) for failure to prosecute. Plaintiff responds that the inaccuracy in the complaint was a mere "misnomer" so that amendment under Rule 15(c) was entirely proper and that she used due diligence in serving the proper defendant.
Whether a "new" party may be added by amendment under Rule 15 after the statute of limitations has run is a subject on which much ink has been spilled by courts and commentators. Prior to 1966, courts had reached apparently inconsistent, and in some instances, seemingly harsh conclusions on similar fact patterns. See cases collected in 6 Wright & Miller, Federal Practice and Procedure § 1498, at 506 nn.83-84 (1971 & 1977 Supp.) and 3 Moore's Federal Practice PP 15.15(4. -1) to (4. -2) (1974 & 1977-78 Supp.). Rule 15(c) was amended in 1966 in an attempt to establish criteria that would lead to more uniform and equitable results. See Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 407-10 (1967). Rule 15(c) now provides, in pertinent part
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the ...