Equal Employment Opportunity Commission et al v. Pyramid Instrumentation and Electric Corporation

Filing 10

ORDER and REPORT AND RECOMMENDATION by Magistrate Judge Charles S. Miller, Jr. The 6 Motion to Substitute Party is deemed moot. The 9 Amended Motion to Substitute Party is granted. The case caption shall be amended accordingly. It is recommended that the above-entitled action be dismissed without prejudice should plaintiff be unable to retain counsel. Response due by 10/1/2018. Equal Employment Opportunity Commission and North Dakota Department of Labor and Human Rights Wage Division terminated. (BG) Distributed on 8/21/2018. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Equal Employment Opportunity Commission
North Dakota Department of Labor and Human
Rights: Wage Division on behalf of: Jose Louis
Cabrera (deceased),

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
Pyramid Instrumentation and Electric Corporation )
now known as PTW Energy Services,
)
)
Defendant.
)

ORDER AND REPORT AND
RECOMMENDATION

Case No. 1:18-cv-091

Claudia Jimenez Cabrera initiated the above entitled action pro se on May 4, 2018, with the
payment of the filing fee and the filing of a complaint. The complaint alleges in substance the
defendant discriminated against and otherwise violated the rights of Ms. Cabrera’s husband, now
deceased, while he was in the defendant’s employ.
On July 30, 2018, the undersigned issued an Order to Show Cause and Report and
Recommendation. (Doc. No. 8). Therein the undersigned explained to Ms. Cabrera why she cannot
pursue claims on behalf of EEOC, the NDDOL, or her deceased husband’s estate in a representative
capacity (she is not an attorney licensed to practice in this court) and ordered her to show cause by
July 30, 2018, why this action should not be dismissed. (Id.). In so doing, the undersigned
encouraged her to retain counsel in the interim, who could then file an amended complaint that
"cleans up" the case caption and identifies the real parties in interest, i.e., Jose Luis Cabrera's estate
and its representative(s). (Id.)
On motion by Ms. Cabrera, the undersigned extended her deadline for responding/objecting

1

the Order to Show Cause and Report and Recommendation until October 1, 2018.
By all appearances Ms. Cabrera has yet to retain counsel. She has, however filed, a motion
and amended motion to substitute parties in an effort to “clean up” the case caption. In her amended
motion she requests that the case caption be amended to read as follows:
Jose Luis Caberera, Deceased.
Claudia Jeaneth Jimenez Caberera,
North Dakota Personal Representative
On the Estate of Jose Louis Cabrera,
Surviving spouse, and Guardian of their Minors,
Plaintiffs,
vs
Pyramid Instrumentation and Electric Corporation
now know as PTW Energy Service,
Defendants.
(Doc. No. 9).
The undersigned deems as MOOT, the original motion to substitute (Doc. No. 6), GRANTS
the amended motion to substitute (Doc. No. 9), and directs that the case caption be amended
accordingly.
The undersigned cannot stress strongly enough that, regardless of the amendment to the case
caption, Ms. Caberera cannot represent her deceased husband’s estate and that it remains incumbent
upon her to secure representation if she wants to proceed with this action. Put another way, the
amendment to the case caption does not fix the fundamental problem. The claim she is asserting
belongs to her husband’s estate. It is not “personal” to her. Ms. Cabrera is reminded that she has
until October 1, 2018, to respond to the undersigned’s order to show cause and report and
recommendation. Should Ms. Cabrera fail to respond as directed or otherwise secure representation,
2

it remains the undersigned’s RECOMMENDATION that this matter be dismissed without
prejudice.
IT IS SO ORDERED.
Dated this 21st day of August, 2018.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

3