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SLAVOV v. MARRIOTT INT'L

January 6, 1998

SLAVHO K. SLAVOV, Plaintiff,
v.
MARRIOTT INTERNATIONAL, INC., Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendant's Motion to Dismiss Plaintiff's Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), (5), and (6). *fn1" For the following reasons, Defendant's motion is granted.

 I. BACKGROUND

 In August 1993, Plaintiff Slavho K. Slavov ("Slavov") was hired by Defendant Marriott International, Inc. ("Marriott") as a utility recyclist. On July 18, 1995, Slavov was terminated. Marriott informed Slavov that he was being discharged from his position for "insubordination and refusal to do an assigned task." (Def.'s Mot. Dismiss, Ex. B)

 On January 16, 1996, Slavov filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"), claiming that his national origin, Bulgarian, served as the true basis for his discharge. Although the EEOC was unable to conclude that Marriott violated Title VII of 42 U.S.C. § 2000(e) et seq., it issued a right to sue letter on June 28, 1996.

 On September 17, 1996, Slavov filed a pro se complaint in the federal district court, alleging a Title VII violation and the intentional infliction of emotional distress. The gravamen of Slavov's federal action is that Marriott required him "to perform the job responsibilities of his position as well as well as two ground keeper [positions] during the working day."

 Two days later, on September 17, 1996, Slavov filed a handwritten complaint in state court, consisting of the following paragraph:

 
The reason I am filing this complaint is because I believe I was harassed and wrongfully discharged by Marriott International, Inc. I was forced by one of my supervisors and the Director of the Engineering Department to do other peoples jobs, even in extreme weather. Because I could not do two job positions, I was discharged and my unemployment was denied. I also was harrassed [sic] by one of the security guards on the day I was discharged.

 On November 22, 1996, Marriott filed a Motion to Dismiss Slavov's state court complaint pursuant to 735 ILCS § 5/2-615. On March 10, 1997, the state court summarily granted Marriott's motion. Slavov did not appeal the state court's order.

 In a June 12, 1997 missive, the United States Marshall Service for the Northern District of Illinois informed Slavov that his federal complaint was never served because Slavov failed to execute a "USM-285" form. Slavov, who was appointed counsel by this time, informed his attorney of the omission. Thus, on July 22, 1997, ten months after the complaint was originally filed, Marriott was served.

 On August 8, 1997, Slavov amended his federal complaint, abandoning the intentional infliction of emotional distress claim but realleging the Title VII violation. On September 2, 1997, Marriott filed the instant motion, claiming that Slavov's Amended Complaint must be dismissed on jurisdictional grounds because: (1) service of process was not executed within 120 days, (2) the Amended Complaint exceeds the scope of the EEOC charge, and (3) the doctrine of res judicata precludes federal review.

 II. DISCUSSION

 Marriott argues that Slavov's failure to comply with the service of process time limitations in the Federal Rules of Civil Procedure requires dismissal of the Amended Complaint. Further, Marriott asserts that Slavov cannot show good ...


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