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Stenger v. Spagnoli9/6/2005
t erred in granting defendants' Rule 12(b)(6) motions to dismiss. Plaintiffs contend that the Rule 9(j) order granting the extension of time tolled the statute for their claims against all parties, whether identified in the Rule 9(j) motion and order or not. We agree.
"When considering a 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff's recovery." Locus v. Fayetteville State University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991) (citing Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682 (1985)). "In deciding such a motion the trial court is to treat the allegations of the pleading it challenges as true." Hawkins, 78 N.C. App. at 591, 337 S.E.2d at 683 (citation omitted). "'A statute of limitations can be the basis fordismissal on a Rule 12(b)(6) motion if the face of the complaint discloses that plaintiff's claim is so barred.'" Reunion Land Co. v. Village of Marvin, 129 N.C. App. 249, 250, 497 S.E.2d 446, 447 (1998) (quoting Long v. Fink, 80 N.C. App. 482, 484, 342 S.E.2d 557, 559 (1986)). "We review de novo the grant of a motion to dismiss." Lea v. Grier, 156 N.C. App. 503, 507, 577 S.E.2d 411, 414 (2003) (citation omitted).
The version of Rule 9(j) of the North Carolina Rules of Civil Procedure applicable to this matter provided, in pertinent part:
Upon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident judge of the superior court of the county in which the cause of action arose may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension. . . .
N.C. Gen. Stat. ยง 1A-1, Rule 9(j)(1999).
According to this Court's analysis of Rule 9(j) in Webb v. Nash Hosp., Inc., 133 N.C. App. 636, 516 S.E.2d 191 (1999), it is not necessary for a plaintiff to either name all defendants in a motion for extension of time, or serve any defendant with notice of the extension. Id. at 639, 516 S.E.2d at 193. In Webb, this Court stated:
Defendants argue that by not naming all of the parties in the motion to extend the time for filing the complaint and not serving any of them with notice of the time extension, their due process right to notice was violated. We disagree.
Id. Following Webb, in Stewart v. Southeastern Reg'l Med. Ctr., 142 N.C. App. 456, 543 S.E.2d 517 (2001), this Court held "where there are multiple defendants, a single motion filed in the county where the cause of action first arose will be effective to extend the statute of limitations against all defendants ultimately named in the action." Id. at 462, 543 S.E.2d at 520-21. This Court in Stewart also held that "parties seeking a Rule 9(j) extension must neither name nor serve notice upon potential defendants." Id. at 463, 543 S.E.2d at 521.
Webb and Stewart control the outcome of the present appeal. By the trial court's order of 21 September 2000, the statute of limitations for the filing of plaintiffs' medical malpractice action was extended as to all prospective defendants, whether they were named in the motion and order for extension or not. The trial court erred in granting defendants' motions to dismiss pursuant to Rule 12(b)(6), and the 11 May 2001 order must therefore be reversed on this basis.
Defendant Southeast Pain Management Services, P.L.L.C. also argues that, by allowing the claims against it to proceed, plaintiffs have been
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