The opinion of the court was delivered by: James C. Francis IV, United States Magistrate Judge
Dr. Gilbert Stone is a defendant in this medical malpractice action. He brings the instant motion to dismiss all claims brought against him pursuant to Rules 41(b) and 12(c) of the Federal Rules of Civil Procedure.
On July 24, 1997, Brandon Dooley had lumbar surgery at Columbia Presbyterian Medical Center (the "Hospital"). (Amended Complaint ("Am. Compl."), ¶ 38).*fn1 The surgery was performed by Dr. James McMurtry, and Dr. Stone served as the anesthesiologist. (Am. Compl., ¶¶ 39, 40; Anesthesia Record dated July 24, 1997, attached as Exh. J to Affidavit of Angela M. Ribaudo dated Oct. 14, 2008 ("Ribaudo Aff.")). Over eight years later, on August 12, 2005, a computed tomography ("CT") scan showed that a catheter or wire had been inadvertently left between two of Mr. Dooley's vertebrae. (Am. Compl., ¶ 46; Advanced Medical Imaging Report, attached as Exh. B to Ribaudo Aff.). Before this date, Mr. Dooley was completely unaware of the foreign object in his spine. (Compl., ¶ 46).
Thereafter, on July 27, 2006, Mr. and Ms. Dooley commenced a medical malpractice suit against the Hospital, Dr. McMurtry, and a "'John Doe,' M.D., (First and last names being fictitious and uncertain, intended to be the anesthesiologist during the surgery of July 24, 1997)." (Compl.). The Hospital and Dr. McMurtry duly answered the Complaint, and discovery proceeded. In March 2007, the Court*fn2 issued a discovery order, requiring, among other things, that the parties "seek any amendments to the pleadings [or] add new parties" by October 15, 2007. (Order dated March 28, 2007, ¶ 5).
The plaintiffs twice requested that the defendants produce Mr. Dooley's patient records, first in October 2006 and again in March 2007. (Affirmation of Katharine G. Hall dated Nov. 21, 2008 ("Hall Aff."), ¶ 5 & Exh. A). Pursuant to the discovery order, the defendants were to disclose Mr. Dooley's entire record by April 15, 2007. (Order dated March 28, 2007, ¶ 3). The records were not produced, however, until defendants' counsel hand-delivered them on September 7, 2007, at which time the plaintiffs first learned that Dr. Stone was the anesthesiologist during Mr. Dooley's surgery. (Hall Aff., ¶ 5; Anesthesia Record dated July 24, 1997).
On October 17, 2007, the plaintiffs "drafted and finalized"*fn3 a Supplemental Summons and Amended Complaint adding Dr. Stone as a defendant. (Hall Aff., ¶ 6; Am. Compl.). After what the plaintiffs characterize as "numerous efforts to locate Dr. Stone," he was served on December 12, 2007. (Hall Aff., ¶ 6; Sheriff's Certificate of Service, attached as Exh. G to Ribaudo Aff.). Dr. Stone answered the Amended Complaint on December 24, 2007.*fn4 (Answer to Amended Complaint).
On October 14, 2008, Dr. Stone filed the instant motion to dismiss on three grounds. First, he argues that the plaintiffs' failure to amend their Complaint by October 15, 2007 as ordered by the Court warrants dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.*fn5 His second ground is similar: he maintains that dismissal under Rule 41(b) is appropriate because the plaintiffs neglected to seek leave of court prior to amending their Complaint as required by Rule 15(a). Finally, Dr. Stone contends that the plaintiffs' claim against him is barred by the applicable statute of limitations and thus he is entitled to judgment on the pleadings.
The plaintiffs' claim against Dr. Stone is barred by the applicable statute of limitations. There is therefore no need to address the alleged procedural defects; even assuming that the complaint was properly amended to add Dr. Stone as a defendant, the plaintiffs' claim against him would nevertheless fail.
A. Applicable Legal Standard
"The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir. 2006); accord Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Accordingly, "the court must accept as true the complaint's factual allegations and draw all inferences in the plaintiff's favor." Cleveland, 448 F.3d at 521 (quotation marks omitted). Judgment on the pleadings will therefore not be granted unless it appears that the plaintiff can prove no plausible set of facts in support of his claim which would entitle him to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, , 127 S.Ct. 1955, 1960 (2007).
B. Statute of Limitations
Subject matter jurisdiction in this case is based on diversity of citizenship.*fn6 "[I]t is well established that in diversity cases state law governs not only the limitations period but also the commencement of the limitations period." Cantor Fitzgerald Inc. v. Lutnick, 313 F.3d 704, 709 (2d Cir. 2002) (citing Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 533 (1949), and Guaranty Trust Co. v. York, 326 U.S. 99, 109-10 (1945)). Accordingly, New York state law determines the applicable statute of limitations here. In New York, an action for medical malpractice typically must be commenced within two and one-half years of the date of the alleged malpractice. C.P.L.R. § 214-a. There is an exception, however, applicable to actions based on the discovery of a foreign object in a patient's body. Under the so-called foreign ...