Opinion
No. 01 Civ. 8865 (AKH)
July 25, 2002
MEMORANDUM AND ORDER DENYING MOTION TO DISMISS
Pro se plaintiff Flora Buckley filed this employment discrimination action against her former employer, defendant Doha Bank, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e)(1)-(17). Defendant moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6). For the reasons explained below, I deny defendant's motion and extend plaintiffs time to effect service of process nunc pro tunc to February 7, 2002.
I. Background
On October 3, 2001, plaintiff, appearing pro se, filed a complaint pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e)(1)-(17), against her former employer, defendant Doha Bank Limited. Plaintiffs complaint alleges employment discrimination on the basis of her national origin and gender, as well as sexual harassment and retaliation. Plaintiff filed a complaint with the New York State Division of Human Rights on August 31, 1999. The Equal Employment Opportunity Commission ("EEOC") adopted the findings of the state agency denying plaintiffs claim and issued a Right to Sue Letter dated June 19, 2001. Plaintiffs complaint alleges that she did not receive the Right to Sue Letter until September 6, after she had sent two letters to the EEOC, dated July 20, 2001 and August 31, 2001, stating that she had not yet received a Right to Sue Letter.
With her complaint, plaintiff included a letter stating that she attempted to file the complaint on September 11, 2001, but was unable to do so because of the attacks on the World Trade Center. She alleges that she attempted again to file on both September 18, 2001 and September 19, 2001, but was unable to do so because the Court was closed. Plaintiff again visited the Court on September 27, 2001 and obtained forms for filing her complaint from the Pro Se Office. Plaintiff mailed the complaint to the Pro Se Office on September 28, 2001. The Pro Se Office received and filed the complaint on October 3, 2001.
By letter dated January 11, 2002, before she had served process on defendant, plaintiff requested an adjournment of the initial pretrial conference, explaining that she had forwarded documents for review to an attorney she was attempting to retain and they had not yet been returned to plaintiff. By memo-endorsement of January 16, 2002, I adjourned the conference until February 8, 2002. The summons and complaint were served on the defendant on February 7, 2002.
On March 25, 2002, defendant moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6) on the grounds that plaintiff did not file her original complaint within the 90-day statute of limitations and that she failed to serve the defendant within 120 days of filing her claim.
II. Discussion
A. Plaintiffs Claim Is Not Time-Barred
A plaintiff alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must file her complaint within 90 days of receiving notice of her right to sue from the EEOC. 42 U.S.C. § 2000e-5 (f)(1). The 90-day filing rule is not a jurisdictional prerequisite to suit in a federal court, but only "a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, reh'g denied, 456 U.S. 940 (1982).
Under the presumption of Federal Rule of Civil Procedure 6(e), plaintiff is presumed to have received the Right to Sue Letter by June 22, 2001, three days after its mailing. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1 (1984) (per curiam). Plaintiff thus had until September 20, 2001, the 90th day after June 22, 2001, to file the complaint. Plaintiff attempted to file three times before this deadline — on September 11, 2001, September 18, 2001, and September 19, 2001 — but the Pro Se Office was closed due to the events of September 11, 2001. Because of the Court's closure, by Order of September 21, 2001, Chief Judge Mukasey extended all filing deadlines in the Southern District of New York between September 10, 2001 and September 26, 2001 to September 26, 2001. Plaintiff mailed her claim on September 28, 2001. Plaintiffs complaint was received and filed by the Pro Se Office on October 3, 2001, seven days after the extended filing deadline had passed.
Because the equitable tolling doctrine is based on the general principles of equity and fairness, the unprecedented circumstances of the World Trade Center disaster and subsequent Court closure warrant relief from a strict application of the 90-day statute of limitations in this case. See South v. Saab Cars USA. Inc., 28 F.3d 9, 11-12 (2d Cir. 1994). Had plaintiff been able to file her claim on any of her first three attempts, her claim would have been timely filed, regardless of when she actually received the Right to Sue Letter. The "'remedial purpose of the [civil rights] legislation as a whole' would be defeated if aggrieved plaintiffs were absolutely barred from pursuing judicial remedies by reason of excusable failure to meet the time requirement." Johnson v. A1 Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (quoting Zipes, 455 U.S. at 398).
Plaintiff also offers proof that she did not receive the Right to Sue Letter until September 6, 2001. inadequate notice is an established ground warranting equitable tolling of the statute of limitations. South, 28 F.3d at 12 (2d Cir. 1994). Although presumptions of receipt are convenient and reasonable in the absence of evidence to the contrary, Baldwin did not render them irrebutable, and "[i]f a claimant presents . . . evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail, the initial presumption is not dispositive." Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996).
Here, plaintiff presents the following pieces of evidence to rebut the presumption: (1) a copy of a fascimile marked "second request," dated August 31, 2001, in which plaintiff requested a copy of the Right to Sue Letter; (2) a letter from the EEOC dated August 31, 2001 indicating the enclosure of a copy of the Dismissal and Notice of Right to Sue; (3) an envelope from the EEOC, postmarked September 4, 2001; and (4) a letter from plaintiff to the Court requesting an extension on filing her claim because of the delay in the receipt of the Right to Sue Letter and her inability to file the claim on three separate occasions due to the closure of the Pro Se Office. This evidence creates, at least, a genuine issue of fact as to whether plaintiff received notice of her right to sue within the presumptive time frame. See Id. Because plaintiff diligently attempted to file her complaint within the 90-day limitations period, and because her submissions raise a serious issue concerning when she received notice of her right to sue, I deny defendant's motion for dismissal pursuant to Rule 12(b)(6).
B. Service of Process Was Sufficient
Defendant also argues that the complaint should be dismissed because the summons and complaint were served on defendant on February 7, 2001, more than 120 days from the date of filing on October 3, 2001. See Fed.R.Civ.P. 4(m) ("If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court . . . shall dismiss the action . . . or direct that service be effected within a specific time.").
Prior to 1993, noncompliance with Rule 4(m), then Rule 4(j), unambiguously required dismissal of an action where service had not been effected within 120 days unless plaintiff showed good cause for not doing so, despite the fact that the statute of limitations might subsequently bar plaintiffs claim. See Frasca v. United States, 921 F.2d 450, 452 (2d Cir. 1990). However, when the Federal Rules of Civil Procedure were amended in 1993, Rule 4(m) was amended so that "where, as here, the applicable statute of limitations would bar a plaintiff from refiling her action, a court may be justified in granting a discretionary extension of the period for service, whether or not the plaintiff has demonstrated good cause for his or her failure to effect service within the Rule 4(m) period." Shider v. Communications Workers of America, No. 95 Civ. 4908, 1999 WI. 673345, at *3 (S.D.N.Y. Aug 30, 1999); accord Fed.R.Civ.P. 4 (m) advisory committee's notes; see also Henderson v. U.S., 517 U.S. 654, 658 n. 5 (1996) (noting that the 1993 amendment permits extensions past 120 days even in the absence of good cause); Meija v. Castle Hotel, Inc., 164 F.R.D. 343, 345 (S.D.N.Y. 1996).
There are several factors in the instant case that lead me to conclude that dismissal is inappropriate at this juncture. Plaintiff here effected service just one week after the 120-day period prescribed by Rule 4(m) elapsed and defendant makes no showing of undue prejudice caused by the seven-day delay. This stands in stark contrast to cases in this district where judges have chosen not to exercise this discretionary remedy because plaintiff had still not served for seven or more months after filing at the time defendant moved for dismissal. See. e.g., Astarita v. Butts Co., No. 96 Civ. 6991, 1997 WL 317028 (S.D.N.Y. June 10, 1997); Sunniland Fruit Co., Inc. v. PMI Produce Corp., No. 00 Civ. 8410, 2001 WL 761174 (S.D.N.Y. July 9, 2001). Moreover, plaintiff proceeds pro se, and "district courts should be especially hesitant to dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). For these reasons, I extend plaintiffs time for service nunc pro tunc, until February 7, 2001. Accordingly, I deny defendant's motion to dismiss for insufficient service of process.
III. Conclusion
For the foregoing reasons, defendant's motion to dismiss is denied. The parties shall appear for a status conference at 10:15 a.m. on August 9, 2002 in Courtroom 14D, 500 Pearl Street, New York, New York.
SO ORDERED.