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KEUM CHOI v. CHEMICAL BANK

September 30, 1996

KEUM S. CHOI, Plaintiff, against CHEMICAL BANK, Defendant.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 Keum Choi brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17, against his employer Chemical Bank ("Chemical" or "the Bank"). Chemical has moved to dismiss this action pursuant to 28 U.S.C. § 1958(d), and Rules 4(m), 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure. In the alternative, Chemical moves to dismiss particular claims on the grounds that they are time-barred under § 2000e-5(e) of Title VII.

 I. BACKGROUND

 A. Plaintiff's Discrimination Complaint

 Chemical hired Keum Choi ("Plaintiff") on February 7, 1971, *fn1" as a Tax Specialist. (Yoeh Aff. Exs. A, N.) On December 10, 1990, Plaintiff filed a charge with the New York State Division of Human Rights ("NYSDHR") alleging that Chemical discriminated against him on the basis of his race (Asian) and national origin (Korean). (Yoeh Aff. Ex. A.) At the same time, Plaintiff filed a Complaint with the Equal Employment Opportunity Commission ("EEOC"). (Id. ; Charge No. 16G-91-0686.) In his NYSDHR complaint, Plaintiff alleged that on October 29, 1990, he asked the vice president of his department for a promotion and salary increase but was denied because of his race and national origin. (Id.) The vice president's stated reason for not granting the promotion was Plaintiff's language barrier. (Id.)

 On September 24, 1991, Carlos Miranda, a NYSDHR investigator, conducted a fact-finding conference. (Yoeh Aff. P 4.) At the Conference, Plaintiff was represented by his counsel, Alice Eichen-Winslow. (Id.) Several Chemical employees also attended. (Id.) After an investigation, NYSDHR issued a Determination and Order dismissing Plaintiff's claim, finding no probable cause to believe that Chemical had engaged in the unlawful discriminatory practice Plaintiff alleged. (Yoeh Aff. Ex. B.) The investigation revealed that Chemical had promoted a person of Asian and Korean descent to the position for which Plaintiff had applied. (Id.) The investigation also revealed that Plaintiff had earlier been advised that his communication skills needed improvement. (Id.) The EEOC concurred with the NYSDHR decision and issued a right-to-sue letter on March 25, 1993. (Yoeh Aff. Ex. C.)

 B. Application for Court Appointed Counsel

 On June 22, 1993, Plaintiff commenced this action by filing a Summons and Complaint. (Yoeh Aff. Ex. N.) At that time, Plaintiff paid the $ 120.00 filing fee and filed an In Forma Pauperis application seeking court appointed counsel. The Honorable Lawrence M. McKenna, U.S.D.J., denied the application without prejudice by memorandum endorsement filed June 30, 1994. (Yoeh Aff. Ex. D.) Plaintiff then proceeded pro se until roughly October 12, 1995, when he retained counsel. (Pl.'s Mem. Law at 3; *fn2" Yoeh Reply Aff. P 3.)

 In his application for appointment of counsel, Plaintiff stated that he had not received money from business or self-employment, pension or annuities, or any other enumerated source within the past year. Plaintiff did not respond to a question asking for the name of the applicant's last employer and the amount of salary. Plaintiff listed a car worth $ 1,200.00 as his only valuable asset, and listed two bank accounts with a total balance of $ 1,450.00. (Yoeh Aff. Ex. D.)

 In fact, on June 21, 1993, the date of his application, Plaintiff was employed by Chemical Bank, earning $ 30,050.00 annually. (McQuade Aff. P 3.) At that time, Plaintiff had a balance of $ 46,070.00 in a ChemPlus Checking Account; $ 20,253.00 in a Chemical Money Market IRA Account; and approximately $ 27,000.00 in a Chemical Savings Incentive Plan (401K). (Yoeh Aff. Exs. F-H.) Department of Motor Vehicle records show that Plaintiff had four vehicles registered in his name at the time of his application, (Id. Ex. I), and a Westlaw "Info America" database search revealed that Plaintiff and his wife own a piece of property in Monroe County, Pennsylvania. (Id. Ex. K.) In addition, Plaintiff represented on a Chemical Quick Home Secured Application dated May 11, 1993, that he owned a house at 32 Revere Avenue, Emerson, New Jersey, and earned "80G" from his laundromat business (Id. Ex. L.)

 C. The Complaint Before This Court

 On four separate occasions, Plaintiff requested that the Court extend the time for him to serve the Summons and Complaint upon the Bank, on the grounds that he was suffering from a serious illness. (Yoeh Aff. Exs. O-R.) The court's final extension required service on Chemical by June 16, 1995. (Id. Ex. O; Pl.'s Mem. Law at 3.) Plaintiff served the Bank on June 16, 1995, with the Summons and a new Complaint under the same caption. This new Complaint included additional charges of discrimination not included in the original Complaint filed with the Clerk of the Court. (Id.) Plaintiff claims that he filed this second, new Complaint with the Court on June 16, 1995. (Pl.'s Mem. Law at 3, 8.) There is no record of anything being filed with the Court on that date; however, Plaintiff filed an affidavit of service with the Court on June 21, 1995, with the Summons and new Complaint attached.

 In addition to the original allegations, the new Complaint alleges that, "throughout the course of Plaintiff's employment with Defendant, Plaintiff has been offered little or no opportunities for advancement with respect to his title, responsibility and/or salary, despite an exemplary performance and attendance record throughout the course of his employment and the availability of several openings in Defendant's company and Plaintiff's eligibility for same." (Yoeh Aff. Ex. U P 5.) The new Complaint also alleges that "Plaintiff believes that Defendant is still committing these discriminatory acts against him and will continue ...


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