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KUN v. FINNEGAN

December 19, 1996

GEORGE WIEH KUN, Plaintiff,
v.
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, Defendant.



The opinion of the court was delivered by: RICHEY

 UNITED STATES 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.

 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 ...


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