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Salazar-Martinez v. Bakery-Foods

United States District Court, N.D. Texas, Dallas Division

April 16, 2018

ROGELIO SALAZAR-MARTINEZ, Plaintiff,
v.
CONAGRA BAKERY - FOODS, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         This 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 Procedure 41(b).

         Applicable Background

         After 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.

         On 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 recognized that,

[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.

         Plaintiff 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.

         It is now more than one month past that deadline, and Plaintiff has yet to comply with the Court's order or otherwise contact the Court.

         Legal ...


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