Kun v. Finnegan, Henderson, Farabow, Garrett

• Decision Date: 19 December 1996
• Docket Number: Civil Action No. 96-1849 (CRR).
• Citation: 949 F.Supp. 13
• Court: U.S. District Court — District of Columbia
• Parties: George Wieh KUN, Plaintiff, v. FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, Defendant.

949 F.Supp. 13

George Wieh KUN, Plaintiff, v. FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, Defendant.

Civil Action No. 96-1849 (CRR).

United States District Court, District of Columbia.

December 19, 1996.

Shola Rannie Ayeni, McRansom Ayeni & Associates, P.C., Washington, DC, for Plaintiff.

Keith J. Harrison and Jeffrey L. Poston, King, Pagano & Harrison, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

I. INTRODUCTION

The defendant, the law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, has moved to dismiss all of the plaintiff's Title VII claims on the ground that they are barred by the statute of limitations. It also has moved to dismiss the plaintiff's claim for national origin discrimination under Title VII and his claim for negligent infliction of emotional distress because they fail to state a claim upon which relief can be granted. For the reasons set forth below, the defendant's motion to dismiss on statute of limitations grounds shall be denied. The motion to dismiss the national origin and negligent infliction of emotional distress claims shall be granted.

II. PROCEDURAL HISTORY

This litigation began on November 27, 1995 when the plaintiff, a former document preparation specialist for Finnegan, Henderson, filed a complaint for employment discrimination against Finnegan, Henderson and several individual defendants (Civil Action No. 95-2177). That first complaint contained six counts and referred to at least ten separate causes of action based on a single set of facts.

At a December 4, 1995 status conference, the plaintiff agreed to elect two counts related to the same facts and to file an amended complaint on December 6, 1995. The plaintiff failed to do so. Instead, on December 7, 1995, the plaintiff filed a pleading which purported to be an amended complaint, but which did not comply with the Federal Rules of Civil Procedure, as conceded by plaintiff's counsel during a status conference on December 11, 1995. The Court then ordered the plaintiff to file an amended complaint by December 15, 1995. The plaintiff further agreed to withdraw his claim for emotional distress.

The plaintiff filed an amended complaint (his third complaint) on December 13, 1995. The defendants then moved to dismiss the plaintiff's third complaint for failure to exhaust administrative remedies prior to bringing suit. The plaintiff joined the defendants' motion, and the Court dismissed the plaintiff's case (Civ.Action No. 95-2177), without prejudice, on January 4, 1996.

On August 7, 1996, the plaintiff filed his fourth complaint in this litigation alleging that he had fulfilled the exhaustion requirements (Civ.Action No. 96-1849). As counsel for the plaintiff conceded at the August 30, 1996 status conference, that complaint was virtually identical to the original complaint he filed in November 1995, replete with similarly egregious substantive flaws, including, inter alia, purported claims under 42 U.S.C. § 1983 and the Fourteenth Amendment, even though the defendants were not alleged to be state actors; Title VII claims against five defendants in their individual capacities, even though the law in this Circuit precludes such claims; a claim for breach of contract premised on alleged "due process rights;" and a purported claim for a "breach of the covenant of good faith and fair dealing implicit in the non-discrimination provision of Title VII." As egregious as the fourth complaint was in these respects, it did allege facts that arguably could support a claim for employment discrimination under Title VII.

By Order of August 30, 1996, the Court dismissed the plaintiff's fourth complaint (Civ.Action No. 96-1849), without prejudice. The Court further ordered the plaintiff to file with the Court and with Chambers an amended complaint on or before 4:00 p.m. on September 13, 1996 and that failure to do so in compliance with the Federal Rules of Civil Procedure and the Local Rules would result in the dismissal of his case, with prejudice.

On September 12, 1996, the plaintiff submitted his fifth complaint in this litigation to the Clerk of the Court. However, he neglected to provide the complaint with a case number or a caption indicating that it was the amended complaint in Civil Action No. 96-1849. As a consequence, the Clerk treated the September 12 complaint as a new case, assigning it a new number — Civil Action No. 96-2124. The Calendar Committee of this Court, unaware that this case was related to Civil Action No. 96-1849, randomly assigned Civil Action No. 96-2124 to the Honorable Norma Holloway Johnson. On October 4, 1996, the Calendar Committee reassigned Civil Action No. 96-2124 to the undersigned member of this Court.¹

By Order of October 11, 1996, the Court consolidated Civil Action No. 96-2124 with Civil Action No. 96-1849. The Court further ordered that the September 12, 1996 complaint underlying Civil Action No. 96-2124 (the fifth complaint) would be considered the amended complaint in Civil Action No. 96-1849, and dismissed Civil Action No. 96-2124 from the docket of this Court.

III. DISCUSSION

A. The Plaintiff's Title VII Claims Are Not Barred By The Ninety-Day Statute Of Limitations.

The defendant argues that the plaintiff's Title VII claims are barred on statute of limitations grounds because his last complaint was not filed within ninety days of May 13, 1996, the date the plaintiff received his right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1) (1994). According to the defendant, the Court's August 30, 1996 Order rendered Civil Action No. 96-1849 dismissed, with prejudice, as of September 13, 1996 because the plaintiff failed to file an amended complaint by that date, and instead filed a complaint in a new case, Civil Action No. 96-2124, more than 90 days after May 13, 1996. The Court rejects this argument.

The Court's October 11, 1996 Order makes it clear that the plaintiff's complaint in Civil Action No. 96-2124 is to be treated as the amended complaint in Civil Action No. 96-1849. The Court chose not to penalize the plaintiff for his attorney's clerical error in not properly labeling his fifth complaint as the amended complaint in Civil Action No. 96-1849 and for the Clerk's error in treating the plaintiff's fifth complaint as an entirely new case. Since the plaintiff made a good faith, albeit sloppy, attempt to comply with the Court's August 30 Order by filing a revised complaint, Civil Action No. 96-1849 was not dismissed with prejudice.

Moreover, the plaintiff's amended complaint of September 12, 1996 was not barred by the statute of limitations because that complaint sought recovery for the same alleged acts of employment discrimination set forth in the timely-filed August 7 complaint, and, therefore, related back to that complaint. See Fed.R.Civ.P. 15(c)(2) ("An amendment of a pleading relates back to the date of the original pleading when ... the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading[.]").

The defendant, however, argues that the plaintiff cannot avail himself of Rule 15(c)'s relation back provision because the Court dismissed Civil Action No. 96-1849, without prejudice, on August 30, 1996. The defendant cites authority which purportedly stands for the proposition that when a Title VII complaint is timely filed and later dismissed without prejudice, the ninety-day statute of limitations is not tolled, and a subsequent complaint premised on the same events or occurrences will be dismissed if more than ninety days have passed since receipt of the right-to-sue letter. E.g., Minnette v. Time Warner, 997 F.2d 1023, 1027 (2nd Cir.1993).

This authority is distinguishable. Courts have refused to permit a subsequently filed complaint to relate back to a timely filed complaint that was dismissed without prejudice only when the non-prejudicial dismissal was pursuant to a rule which expressly authorizes dismissal of an entire lawsuit, such as Federal Rules 4(m),² 12(b),³ Rule 37,⁴ or 41(a).⁵

Here, the Court dismissed Civil Action No. 96-1849, without prejudice, not to dispose of the lawsuit, but so the plaintiff could (1) excise the extraneous and legally frivolous claims from the complaint and make the complaint more coherent, and (2) re-open his case after completing those tasks. The dismissal was not premised on Rule 4(m) (failure to prosecute), Rule 37 (sanction for discovery abuse), or Rule 41(a) (prior voluntary dismissal by the plaintiff). While the Court implicitly dismissed some, but not all, of the claims in the fourth complaint pursuant to Rule 12, the Court dismissed the lawsuit pursuant to Federal Rule 8(e)(1), which provides that "[e]ach averment of a pleading shall be simple, concise, and direct," and Rule 16, which permits the Court to impose measures that will expedite the disposition of a civil action, including the amendment of pleadings. Unlike Rules 4, 12, 37 and 47, Rules 8(e) and 16 do not explicitly authorize a court to dispose entirely of a lawsuit. Thus, the cases upon which the defendant relies are inapposite.

The defendant also argues that the Supreme Court's holding in Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) is dispositive. According to the defendant, the Supreme Court held that "an inadequate `complaint'" filed before the 90-day statute of limitations has expired does not toll the 90-day period until such time as the plaintiff files an "adequate" amended complaint. See Defendant's Memorandum at 12. If the defendant is correct, then the plaintiff's Title VII claims herein arguably would be time-barred because his August 7 complaint was "inadequate" in some respects under Rule 8, and he did not file his subsequent complaint until well after the 90-day period had expired.

The defendant, however, has mischaracterized the Supreme Court's holding...