United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
pro se employment-related action, filed by Plaintiff
Rogelio Salazar-Martinez, has been referred to the
undersigned United States magistrate judge for pretrial
management under 28 U.S.C. § 636(b) and a standing order
of reference from Senior United States District Judge A. Joe
Fish. The undersigned issues these findings of fact,
conclusions of law, and recommendation that, for the reasons
and to the extent stated below, the Court should dismiss this
action without prejudice under Federal Rules of Civil
Plaintiff filed his complaint [Dkt. No. 3] - a single page
listing seven causes of action and no facts attached to which
is a dismissal and notice of rights issued by the Equal
Employment Opportunity Commission (“EEOC”), as
well as other documents associated (or possibly associated)
with an action filed with the EEOC - the Court issued a
questionnaire to determine the timeliness of this action,
which required Plaintiff to file verified responses no later
than December 11, 2017, see Dkt. No. 8, and a notice
of deficiency (“NOD”) requiring that Plaintiff
also file, no later than that date, an amended complaint on a
provided form, see Dkt. No. 7. Both the
questionnaire and the NOD warned Plaintiff that his failure
to timely comply may result in the dismissal of his action
under Federal Rule of Civil Procedure 41(b). See
Dkt. No. 7 at 1; Dkt. No. 8 at 1.
January 23, 2018, more one month past the deadline to answer
the questionnaire and comply with the NOD, the undersigned
recommended that the Court dismiss this action without
prejudice under Rule 41(b). See Dkt. No. 9 (the
“Initial FCR”). In doing so, the undersigned
[t]o the extent that Plaintiff brings to the Court claims he
raised with the EEOC, although the recommended dismissal is
without prejudice, because, absent equitable tolling,
“this case cannot be timely refiled once dismissed as
more than ninety days have elapsed since [Plaintiff] received
[the] right-to-sue letter from the EEOC” - dated August
17, 2017 [Dkt. No. 3 at 2-3]; see Jenkins v. City of San
Antonio Fire Dep't, 784 F.3d 263, 267 (5th Cir.
2015) (“[W]here the date of receipt is not known,
courts should apply a presumption that the plaintiff received
the notice in three days.”) - “dismissal of
[this] case even without prejudice will operate as a
dismissal with prejudice, ” Dudley v. Dallas Indep.
Sch. Dist., No. 3:99-cv-2634-BC, 2001 WL 123673, at *3
(N.D. Tex. Jan. 12, 2001) (citations omitted); see Berry
v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)
(“If a Title VII complaint is timely filed pursuant to
an EEOC right-to-sue letter and is later dismissed, the
timely filing of the complaint does not toll the ninety-day
limitations period.” (citation omitted)).
The period for filing an objection to these findings,
conclusions, and recommendation affords Plaintiff an
opportunity to respond to this limitations issue.
Dkt. No. 9 at 4.
filed, in response to the Initial FCR, a motion, in Spanish,
requesting an extension to allow him time to find a lawyer.
See Dkt. No. 10. And, in light of the limitations
issue set out above, the undersigned withdrew the Initial FCR
on January 30, 2018 and ordered the following:
Plaintiff must, by no later than March 2,
2018, hire counsel - who shall file a notice of
appearance by that date - or file
an amended complaint as directed by the November 9, 2017
notice of deficiency [Dkt. No. 7] and file verified responses
to the questionnaire issued the same day [Dkt. No. 8].
The failure of retained counsel to file an appearance by
March 2, 2018 or Plaintiff's failure to file an amended
complaint and verified questionnaire responses by that date
will result in a recommendation that this action be dismissed
without prejudice under Rule 41(b).
Dkt. No. 11 at 2.
now more than one month past that deadline, and Plaintiff has
yet to comply with the Court's order or otherwise contact