Helton, Patrick v. Slumberland Furniture et al

Filing 12

ORDER granting Slumberland, Inc.'s 9 Motion to Dismiss. Slumberland, Inc. is DISMISSED from this case. "Slumberland Furniture" will remain as a placeholder defendant in this case until plaintiff has the opportunity to identify an d move to substitute his actual employer for "Slumberland Furniture." Plaintiff must file a motion to substitute by September 13, 2016. If plaintiff does not timely file a motion to substitute, I will dismiss this case for failure to prosecute. Signed by District Judge James D. Peterson on 8/30/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

PATRICK JAMES HELTON,
Plaintiff,
v.
SLUMBERLAND FURNITURE,

ORDER
15-cv-531-jdp

Defendant.
Pro se plaintiff Patrick James Helton filed a complaint against his former employer
and several of his former coworkers and supervisors. Plaintiff alleged that a former coworker
sexually assaulted him and that his employer retaliated against him after he reported the
assault. After considering plaintiff’s allegations, I granted plaintiff leave to proceed on a Title
VII retaliation claim against his employer, defendant Slumberland Furniture. Dkt. 6.
Pursuant to my order granting plaintiff leave to proceed, the United States Marshals
Service served defendant—or, rather, the entity that they thought plaintiff named as
defendant. Plaintiff named “Slumberland Furniture” as a defendant, and the Marshals
Service served “Slumberland, Inc.” Now Slumberland, Inc. has moved to be dismissed from
this case, stating that it was not nor has it ever been plaintiff’s employer. Slumberland, Inc.
represents that “Slumberland Furniture”—the named defendant in this case—is not a legal
entity. Rather, it is a trademark. It appears that plaintiff worked for a “Slumberland
Furniture” franchise, owned and operated by Hesch of Stevens Point, Inc. (HSPI). Relying on
Slumberland, Inc.’s submissions, and the fact that plaintiff has not opposed the motion to
dismiss, I conclude that Slumberland, Inc. is not the appropriate defendant.

As I explained in a previous order, Title VII prohibits employers from discriminating or
retaliating against employees. Plaintiff’s claims are directed at his employer, and it appears
that he has not identified, and that the Marshals have not served, the correct entity. I will
dismiss Slumberland, Inc., as plaintiff does not bring any claims against it. But I will keep
“Slumberland Furniture” as a placeholder defendant for the time being. Plaintiff had the
opportunity to respond to the motion to dismiss; he missed his opportunity to request that
the court substitute the correct defendant. That said, I will give plaintiff one final
opportunity to keep his case alive. Plaintiff will have a short deadline to file a motion to
substitute his actual employer as a defendant in this case. If plaintiff does not timely file a
motion to substitute, I will dismiss this case for failure to prosecute.

ORDER
IT IS ORDERED that:
1. Slumberland, Inc.’s motion to dismiss, Dkt. 9, is GRANTED. Slumberland, Inc. is
DISMISSED from this case.
2. “Slumberland Furniture” will remain as a placeholder defendant in this case until
plaintiff has the opportunity to identify and move to substitute his actual
employer for “Slumberland Furniture.” Plaintiff must file a motion to substitute
by September 13, 2016. If plaintiff does not timely file a motion to substitute, I
will dismiss this case for failure to prosecute.
Entered August 30, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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