The opinion of the court was delivered by: Reagan, District Judge:
On January 10, 2012, Plaintiffs Judy Boothe and Patrick E. Boothe filed suit in this United States District Court, invoking subject matter jurisdiction under the federal diversity statute, 28 U.S.C. 1332 (Doc. 2). Plaintiffs' claims stem from how Patrick E. Booth was treated when he suffered a stroke and was taken to Marshall Browning Hospital in DeQuoin, Illinois, on March 22, 2010. Plaintiffs' original complaint asserted a claim for negligence and a claim for vicarious liability against Defendant Marshall Browning Hospital; Dr. K. Rasjaskhara Warrier was designated a "respondent in discovery," pursuant to 735 ILCS 5/2-402. *fn1 At this juncture, Plaintiffs' Amended Complaint (Doc. 37) controls, which contains a negligence claim against Dr. Warrier.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Warrier is before the Court seeking to dismiss Count III, the negligence claim lodged against him (Doc. 38). Also before the Court is Plaintiff's response in opposition to the motion to dismiss (Doc. 42).
Defendant Warrier asserts that the claim against him is barred by the two-year statute of limitations (735 ILCS 5/13-212(a)). More specifically, Warrier contends that he was not made a defendant to this action until September 2, 2012, which is more than two years after the incident at issue, and even beyond the additional extended period available under 735 ILCS 5/2-402 for adding those designated as "respondents in discovery" as parties to the case. Plaintiffs counter that the tolling provision in 735 ILCS 5/2-402 is integral to the Illinois statute of limitations and constitutes substantive law, which is, therefore, controlling in this diversity action. Plaintiffs note that on May 28, 2012, they moved to amend the complaint to add Dr. Warrier as a defendant, which was within the six-month period allotted under 735 ILCS 5/2-402 for converting a respondent in discovery to a party (see Doc. 28). Plaintiffs' initial motion to amend (integrated into Plaintiffs' response to Dr. Warrier's first motion to dismiss) was denied without prejudice (Doc. 30), and their subsequent motion to amend was granted (Doc. 36), permitting the amended complaint (Doc. 37) to be filed.
1. Applicable Legal Standards
Dr. Warrier asserts that Plaintiffs have failed to allege a viable claim against him, in that he was not sued before the two-year period prescribed by 735 ILCS 5/13-212(a) for filing an action against a physician regarding patient care. In ruling on a Rule 12(b)(6) motion to dismiss, a plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E. O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
Rule 12(b)(6) is concerned with the adequacy of the pleadings, and a statute of limitations provides an affirmative defense. McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 485 (7th Cir. 2012). Generally, Rule 12(b)(6) should not be used to test an affirmative defense, but when all relevant facts are presented, the court may properly dismiss a case before discovery on the basis of an affirmative defense. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (citing Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (approving dismissal based on statute of limitations when the relevant dates were set forth in the complaint)). With that said, such a motion is better brought pursuant to Federal Rule of Civil Procedure 12(c), which pertains to judgment on the pleadings. Brownmark, 682 F.3d at 690.
If the Court takes notice of matters outside the pleadings, Federal Rule of Civil Procedure 12(d) provides that the motion be treated as a motion for summary judgment under Rule 56. Nevertheless, as explained in Ennenga v. Starns, 677 F.3d 766, 773-774 (7th Cir. 2012): Taking judicial notice of matters of public record need not convert a motion to dismiss into a motion for summary judgment. A court may take judicial notice of facts that are (1) not subject to reasonable dispute and (2) either generally known within the territorial jurisdiction or capable of accurate and ready determination through sources whose accuracy cannot be questioned.
Id. (internal citations omitted). In Ennenga, the Court of Appeals for the Seventh Circuit approved taking notice of information in the complaint, as well as undisputed dates and deadlines that fell within its judicial-notice power. Id.
As in Ennenga, the Court does not have to convert Defendant Warrier's motion to dismiss to a motion for summary judgment. The amended complaint reveals that March 22, 2010, is the operative date triggering the two-year period for filing suit (Doc. 37, p.p. 2-4). The chronology of procedural events relevant to determining whether the statute of limitations bars Count III is a matter of record, undisputed by the parties. The parties do not dispute that 735 ILCS 5/13-212(a) prescribes a two-year statute of limitations, or that a respondent in discovery under 735 ILCS 5/2-402 is not a party to an action. Westmeyer v. Flynn, 889 N.E.2d 671, 673 n.2 (Ill. App. 1st Dist. 2008) ("respondents in discovery are not parties to the action in which they are named"); Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1485 fn.3 (7th Cir. 1996) (recognizing the distinction between a party to a lawsuit and a respondent in discovery). The parties present a question of law regarding whether Plaintiffs have properly invoked the six-month extension of the statute of limitations deadline available under 735 ILCS 5/2-402.
To survive a Rule 12(c) motion, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the speculative level, assuming that all well-pleaded allegations in the complaint are true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
2. Relevant Procedural History
Plaintiffs Patrick E. Boothe and Judy Boothe initiated this action on January 10, 2012 (Doc. 2). Dr. Warrier was designated as a respondent in discovery, pursuant to 735 ILCS 5/2-402, not as a party.
On May 15, 2012, Warrier moved to be dismissed from the action as a respondent in discovery for want of subject matter jurisdiction, based on the fact that 735 ILCS 5/2-402 does not create a cause of action (Doc. 23). Dr. Warrier characterized 735 ILCS 5/2-402 as a procedural rule-a discovery mechanism. He argued that, because Plaintiffs invoked subject matter jurisdiction under the federal diversity statute, 28 U.S.C. 1332, federal law, not state law, governs matters of procedure in federal court. See Hanna v. Plumer, 380 U.S. 460, 464-465 (1965); Kijowska v. Haines, 463 F.3d 583, 589 (7th Cir. 2006); Camp v. TNT Logistics Corp., 553 F.3d 502, 505 (7th Cir. 2009). In response to the first motion to dismiss, Plaintiffs asserted that Section 2-402 is a substantive rule (Doc. 28). Plaintiffs cited Moomaw v. Mentor H/S, Inc., 731 N.E.2d 816, 821-822 (Ill. App. 4th Dist. 2000), which held that Section 2-402 was applicable in a diversity action in federal court because it was intended to influence substantive outcomes, and to treat it as a pure procedural rule could defeat the proper joinder of defendants. However, Plaintiffs' also acknowledged that Moomaw was called into question in ...