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November 8, 2005.


The opinion of the court was delivered by: DEBORAH BATTS, District Judge


Plaintiff Brian R. Copeland brings this action, the most recent in a long series of actions involving the same set of events, pursuant to N.Y.C.P.L.R. § 205 in an attempt to seek redress from alleged employment discrimination in violation of New York State Human Rights Law ("SHRL") § 296, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. §§ 1981 and 1983. Defendants New York City Board of Education ("Board of Education") and Cheryl Rosen ("Rosen") (collectively "Defendants") move to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on the grounds that Plaintiff's claims are time-barred, barred by the doctrines of election of remedies and of collateral estoppel, that Plaintiff failed to comply with applicable notice of claim requirements, and that Plaintiff fails to state a claim upon which relief can be granted. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.


  Plaintiff is an African-American male who taught at Lincoln Academy for three years. Lincoln Academy is part of the New York City school system. (Compl. ¶ 3). After several incidents in which Plaintiff claims he was treated unfairly as a result of his race or in retaliation for his support of a terminated co-worker,*fn1 Plaintiff received an unsatisfactory rating from the Director of the Academy, Defendant Rosen. (Id. ¶¶ 13, 14, 35, 41, 43, 45). As a result, he was given no option to continue teaching at the school. On June 28, 1993, Plaintiff sent a letter to Mr. Anton Klein, the Superintendent of District 3, stating: "Please release me from my teaching assignment in District 3. I would like to pursue employment in another district." (Mosley Decl. at Ex. M.) Subsequently, on July 20, 1993, he was terminated from Lincoln Academy by letter.*fn2 Plaintiff claims he has repeatedly sought and been interviewed for positions within the New York City Public Schools since the discharge, with no success. (Compl. ¶¶ 45-47). On October 1, 1993, Plaintiff filed a Complaint with the United States Equal Employment Opportunity Commission ("EEOC"), alleging a campaign of harassment, the last act of discrimination having taken place on July 13, 1993. (Mosley Decl. at Ex. B). The State Division of Human Rights, which also investigated the charges, and the EEOC issued their findings on February 7, 1996 and June 7, 1996 respectively. (Mosley Decl. at Exs. I and J). Both agencies found insufficient evidence of discriminatory behavior by either Defendant Rosen or the Board of Education. (Id.)

  Shortly thereafter, Plaintiff filed a Complaint pro se in the United States District Court for the Southern District of New York on August 20, 1996, asserting claims of race and gender discrimination under Title VII. (Mosley Decl. at Ex. B). In 1999, District Judge Leisure granted Defendants' Motion for Summary Judgment on the Title VII claims against Defendant Rosen in her personal capacity, and granted Plaintiff's leave to file an Amended Complaint against the Board of Education. Copeland v. Rosen, 38 F.Supp. 2d 298, 302-03, 309 (S.D.N.Y. 1999) ("Copeland I"). Plaintiff filed an Amended Complaint on June 4, 1999, adding additional claims under the SHRL, § 1981, and § 1983. (Mosley Decl. at Ex. C.)

  Approximately one year later, Judge Leisure dismissed Plaintiff's action without prejudice pursuant to Rules 41(b) and 16(f) of the Federal Rules of Civil Procedure for failure to prosecute and failure to obey scheduling orders issued by the court. Copeland v. Rosen, 194 F.R.D. 127, 131-34 (S.D.N.Y. 2000) ("Copeland II"), reconsideration denied, Copeland v. Rosen, 196 F.R.D. 20 (S.D.N.Y. 2000) ("Copeland III"). The court had issued, at that point, three warnings to Plaintiff's counsel that her "dilatory manner of proceeding and her failure to heed the Court's orders would result in dismissal of plaintiff's suit." Id. at 127.*fn3 On appeal, the Second Circuit remanded the case to the District Court to determine whether Judge Leisure intended to "impose a sanction less drastic than one that [was] essentially a final dismissal" and requested that the District Court address its intentions where refiling would be barred. Copeland v. Rosen, 25 Fed. Appx. 17, 19-20, 2001 WL 1486007, at *2 (2d Cir. No. 19, 2001) ("Copeland IV"). On remand, the District Court maintained its initial ruling, claiming that the "effect of final extinguishment of Plaintiff's Title VII claims would not change this Court's previous ruling." Copeland v. Rosen, 208 F.R.D. 507, 513 (S.D.N.Y. 2002) ("Copeland V"), aff'd 2003 U.S. App. LEXIS 744 (2d Cir. Jan. 16, 2003). The District Court dismissed the case without prejudice, noting that based on the egregious behavior of the Plaintiff's attorney throughout the history of the case, it could have dismissed the case with prejudice if it had chosen to do so. Id. Aware that its dismissal would extinguish Plaintiff's Title VII claim, the court discussed the potential virtues of New York's "savings statute," N.Y.C.P.L.R. § 205, in relation to Plaintiff's remaining claims. Id. at 513-14. The District Court stated that although it was dismissing for failure to prosecute, which ordinarily disqualifies the use of N.Y.C.P.L.R. § 205, by doing so without prejudice, Plaintiff would be left to "pursue whatever causes of action remain viable if he were to refile his action." Id. at 515.

  Plaintiff filed a new complaint in the current action on March 6, 2003, in the Supreme Court of the State of New York, alleging the same Title VII, § 1981, § 1983, and SHRL § 296 violations previously raised. Defendants removed the case to the Eastern District of New York on April 25, 2003. After Defendants' Motion to Dismiss was fully submitted, Judge Dearie transferred the case to the Southern District of New York pursuant to 28 U.S.C. § 1404. (Order of District Judge Raymond J. Dearie, dated Dec. 12, 2003.) II. DISCUSSION

  In considering a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court must assume as true factual allegations in the complaint. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The court should consider a 12(b)(1) motion before ruling on any other motions to dismiss, since dismissal of an action for lack of subject matter jurisdiction will render all other defenses and motions moot. See United States ex rel Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993), cert. denied sub nom. Kreindler & Kreindler v. United Technologies Corp., 508 U.S. 973 (1993); Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). Thus, a court confronted with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must decide the "jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." Magee v. Nassau County Med. Ctr., 27 F.Supp.2d 154, 158 (E.D.N.Y. 1998).

  A.N.Y. C.P.L.R. § 205

  Plaintiff has filed this suit in reliance on the New York savings statute N.Y.C.P.L.R. § 205, which allows a six month tolling of a statute of limitations so long as the prior suit is dismissed according to various conditions. N.Y.C.P.L.R. § 205(a) provides:
If an action is timely commenced and is terminated in any manner other than a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence . . . after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six month period.
(emphasis added).

  Although the statute explicitly precludes application where a complaint has been dismissed for neglect to prosecute, Judge Leisure in the prior action accepted that there is "some support" for the contention raised by the defendants below that dismissals without prejudice in such cases are still able to utilize Section 205.*fn4 Copeland V, 208 F.R.D. at 514. As a result, the court dismissed the action without prejudice "so that plaintiff may pursue whatever causes of action remain viable if he were to refile his action." Id. at 515. In reliance on this statement by the court, Plaintiff commenced this action pursuant to C.P.L.R. § 205. (Compl. ¶ 1).

  Section 205 explicitly requires that the prior action was "timely commenced," and courts have adhered to this rule strictly. See Byrne v. United States, 804 F.Supp. 577, 580 (S.D.N.Y. 1992) (precluding use of Section 205 because "there is no timely action filed to which a Section 205(a) filing can apply"); Rayo v. State of New York, 882 F.Supp. 37, 39 (N.D.N.Y. 1995) (finding that since the prior action was not properly and timely commenced, "plaintiff cannot now rely on Section 205's six month extension to circumvent the statute of limitations barrier").

  Defendants assert that Plaintiff's claims were not commenced in a timely manner, and thus cannot be saved by N.Y.C.P.L.R. § 205(a).*fn5 B. Title VII Claim

  Defendants note that the Second Circuit has already ruled that as a result of the dismissal of Plaintiff's previous case without prejudice, Plaintiff's Title VII claim would be time-barred in any future filing by ...

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