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).
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 ...