The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff pro se brings this action against defendants
Fashion Institute of Technology ("FIT"), Joan Volpe, Barbara
Janoff, Barbara Lovato and Carol DeSantis alleging employment
discrimination under Title VII of the Civil Rights Act of 1964 as
amended by 42 U.S.C. § 2000e et seq. ("Title VII") and the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et
seq. ("ADEA").*fn1 Defendants move to dismiss plaintiff's
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to comply with the 90-day statute of
limitations imposed on actions brought pursuant to Title VII and
the ADEA. For the reasons stated below,
defendants' motion to dismiss shall be granted.
Plaintiff was employed by the defendants as an administrative
clerk from October 1991, until his termination on July 31, 1995.
Plaintiff alleges that in the course of his employment he "began
having problems" with his supervisor, defendant Joan Volpe,
because she apparently harbored some "personal Animus (sic)"
toward him. See Complaint at 3. Plaintiff further asserts that
he was terminated because of his age, race and gender. See id.
On October 4, 1995, plaintiff filed a verified complaint with
the New York State Division of Human Rights ("NYSDHR"). See
Complaint at Exhibit ("Ex.") 1. After an investigation, the
NYSDHR investigator assigned to the case determined that "there
is NO PROBABLE CAUSE to believe that said respondent engaged . .
. in the unlawful discrimination complained of" and dismissed
plaintiff's complaint. See id. (emphasis in original). He also
advised plaintiff of his right to seek review of his claim to the
Equal Employment Opportunity Commission ("EEOC") since he filed
his charge under Title VII and the Americans with Disabilities
Act ("ADA"). See id.
Thereafter, plaintiff sought review of his claims from the
EEOC. By letter dated February 11, 1998, the EEOC determined
that, after investigating the allegations in his complaint, "the
evidence . . . does not establish violations of [Title VII or the
ADA]." See Complaint at Ex. 2. However, in the same letter, the
EEOC advised him of his right to pursue the action by filing a
private suit within 90 days from the receipt of the letter (the
"right-to-sue letter"). See id.
On May 13, 1998, this Court's Pro Se Office received from
plaintiff a complaint and declaration requesting that he be
permitted to proceed in forma pauperis ("IFP"). See
Declaration in Support of Request to Proceed In Forma Pauperis
dated May 13, 1998 at 1. On July 6, 1998, the Court granted
plaintiff's application to proceed IFP, and on July 17, 1998, the
Court filed plaintiff's complaint with the Clerk of Court (the
"Clerk"). The Clerk subsequently assigned this complaint docket
number 98 Civ. 5078.
On December 28, 1998, the Court sua sponte issued an Order
directing that unless plaintiff could show that defendants had
been served or good cause why they had not been served, the Court
would dismiss the action for failure to effect service within 120
days as required by Rule 4(m) of the Federal Rules of Civil
Procedure. See Order dated December 28, 1998. On January 27,
1999, plaintiff filed an unsworn "declaration" in response to the
Court's Order, stating that he timely requested the United States
Marshals Service (the "Marshals") to serve the amended summons
and complaint upon defendants on November 11, 1998. See
Declaration of Jose Alberto Ocasio dated January 27, 1999. He
also attached a photocopy of the "Process Receipt and Return"
form ("process form") that he submitted to the Marshals to serve
defendants. See id. at 2. The process form, signed by
plaintiff, indicated that plaintiff submitted his request to the
Marshals on November 19, 1998. See id.
After reviewing both plaintiff's "declaration" and the process
form, the Court determined that a factual discrepancy existed
between them, to wit: plaintiff's declaration stated that he
requested the Marshals to serve the defendants on November 11,
1998, while the process form that he attached to his declaration
stated that he requested them to serve on November 19, 1998 (more
than 120 days after the filing of his complaint). Accordingly, in
an attempt to provide plaintiff with an opportunity to explain
the discrepancy and/or show cause for his apparent failure to
comply with Rule 4(m), the Court issued an Order on January 27,
1999, directing plaintiff to demonstrate by affidavit specific
for his failure to timely serve defendants. See Order dated
January 27, 1999.
On February 25, 1999, plaintiff in an unsworn affidavit
repeated his prior assertion that he requested the Marshals to
serve the defendants on November 11, 1998, before the expiration
of the 120 days provided for by Rule 4(m). See Plaintiffs (sic)
Supplementary Brief in Support of (sic) Opposition (sic) of
Motion to Dismiss Complaint dated February 25, 1999 at 2-3.
Thereafter, the Court directed the parties to appear on March
30, 1999, for a hearing to determine whether plaintiff had
requested the Marshals to serve defendants on November 11, 1998
or on November 19, 1998. See Order dated March 8, 1999.
Plaintiff signed for and received a copy of this Order which was
sent by certified mail. See Summary Order dated March 31, 1999.
On March 30, 1999, plaintiff failed to appear at the hearing,
request an adjournment or otherwise contact the Court. See
Transcript of Hearing held on March 30, 1999, ("Tr.") at 1. After
concluding that the unrefuted documentary evidence established
that the plaintiff requested the Marshals to serve defendants on
November 19, 1998, more then 120 days after the filing of the
Complaint, the Court dismissed the action without prejudice for
failure to comply with Rule 4(m).*fn2 See Tr. at 3-4; Summary
Order dated March 31, 1999, at 2. Plaintiff never moved for
reconsideration of this decision, nor was an appeal taken.
On July 26, 1999, plaintiff filed the instant action bearing
docket number 99 Civ. 5919 against the same defendants alleging
the same claims.
Defendants now move to dismiss the instant case because it is
barred by the applicable statute of limitations. Moreover,
defendants argue that there are no equitable reasons that justify
tolling the statute of limitations in this case. In response,
plaintiff, without addressing the substance of defendants'
motion, moves to disqualify this Court on the basis of the
Court's prior adverse decisions, the Court's alleged engagement
in ex parte communications with defendants' counsel, and the
Court's purported violation of its own Individual Rules and
Procedures. See Amended Notice Memorandum of ...