Naambwe et al v. Smithfield Foods, Inc.

Filing 95

ORDER. Signed by U.S. District Judge Lawrence L. Piersol on 10/23/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

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SALA NAAMBWE and

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YVETTE NIMENYA,

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CIV 17-4123

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Plaintiffs,

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>N

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vs.

ORDER

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JOHN MORRELL & CO.,

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Defendant.

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The Court trial in this matter commenced on October 23,2018, with counsel and the parties

present. During the opening of the trial, the Court was advised by Plaintiffs' counsel that both
Plaintiffs wished to address the Court as they wanted to have different counsel. Plaintiffs' counsel

requested a continuance,followed by a motion to withdraw as counsel. The Plaintiffs after opening
statements personally addressed the Court and advised the Court they were dismissing their lawyer.
The Courtfound that the dismissal of Plaintiffs' counsel was without good cause but was not for the

purpose of delay. Defendant's attorney requested a dismissal of the case with prejudice. The Court
denied the motion for dismissal of the case with prejudice and then denied the alternate motion to

dismiss without prejudice. A dismissal without prejudice would have the effect of a dismissal with
prejudice due to the jurisdictional requirement for a right to sue letter. A second right to sue letter
would not satisfy thatjurisdictional requirement,thus being the end ofthe case. Engberg v. Atchison
Railway Co., 820 F.Supp. 558(D. Kansas 1993).

After further discussion with counsel,the Court ordered Plaintiffs to obtain substitute counsel

on or before January 1, 2019, and advised the parties that as a sanction to the Plaintiffs the case

would be administratively closed until new counsel made an appearance and cause was shown to

reopen the case. The Court also advised that if no new counsel appeared of record for the Plaintiffs
by January 1, 2019, the Court would then consider a motion to dismiss the case. If new counsel

timely appears of record, a new trial date will be set for later in 2019. Accordingly,
rr IS ORDERED:

1.

That Defendant's motion to dismiss the action with prejudice is denied as is
the motion to dismiss without prejudice.

2.

That Plaintiffs' counsel is allowed to withdraw from further representation.

3.

That Plaintiffs shall obtain substitute counsel on or before January 1, 2019.

4.

That the case is administratively closed.

5.

That substitute counsel may move for the case to be reopened from its
administratively closed status. The right to sue letter and all pleadings do
remain in full effect.

Dated this

day of October, 2018.
BY THE COURT:

ATTEST:
MATTHEW V^THELBN,CLERK
BY:

Deputy

iwrence L. Piersol
United States District Judge