Salazar-Martinez v. Conagra Bakery - Foods

Filing 11

ORDER WITHDRAWING 9 FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND GRANTING 10 MOTION TO EXTEND TIME: 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 11/9/2017 notice of deficiency [Dkt. No. 7 ] and file verified responses to the questionnaire issued the same day [Dkt. No. 8 ]. (Ordered by Magistrate Judge David L. Horan on 1/30/2018) (sss)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROGELIO SALAZAR-MARTINEZ,
Plaintiff,
V.
CONAGRA BAKERY – FOODS,
Defendant.

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No. 3:17-cv-3083-G-BN

ORDER WITHDRAWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION AND GRANTING MOTION TO EXTEND TIME
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 U.S. District Judge A. Joe Fish.
On January 23, 2018, the undersigned issued findings of fact, conclusions of law,
and a recommendation that the Court should dismiss this action without prejudice
under Federal Rule of Civil Procedure 41(b) [Dkt. No. 9] (the “FCR”). The FCR included
the following warning concerning limitations:
To 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
-1-

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.
Id. at 4.
Plaintiff has now filed a motion, in Spanish, requesting an extension to allow
him time to find a lawyer. See Dkt. No. 10. In light of the possible limitations issue
outlined in the FCR, the FCR is WITHDRAWN. And Plaintiff’s motion is GRANTED.
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).
SO ORDERED.
DATED: January 30, 2018

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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