FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, DC 20004-1710

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

July 30, 2013

NOTICE OF HEARING; PREHEARING ORDER

and

ORDER REGARDING MOTION

Before: Judge Moran

I. NOTICE OF HEARING and PREHEARING ORDER

            The hearing in this matter will commence on Tuesday October 1, 2013 and continue, as needed, on October 2^nd. The hearing will be in, or as close as possible to, Silver City, New Mexico. A subsequent notice will identify the precise hearing address.

            Prior to this case being assigned to the undersigned administrative law judge, an Order to Submit Information was issued on May 24, 2013 by Chief Administrative Law Judge Robert Lesnick. That Order directed the parties “to submit to [the] Commission, [a response as to] who is the correct respondent in these proceedings.” The Order also directed “[t]hat party . . . to file its answer to the complaint within 30 days after receipt of the complaint.” The same Order to Submit Information, which also included an Order to Answer, noted that the Complainant filed his discrimination complaint and that Runyan was identified as the party responsible for the violation. When the Mine Safety and Health Administration (“MSHA”) was involved with its investigation of the case, it listed both Freeport McMoran Tyrone, Inc. (“Freeport”) and Runyan Construction (“Runyan”) as Respondents. The record does not contain any answer, nor any response at all, from Runyan to the Order from the Chief Judge. Accordingly, Runyan Construction is ORDERED to respond to the Order to Submit Information by August 14, 2013. Runyan Construction must thereafter respond to this present Prehearing Order as well, and do so according to the compliance dates listed in this Order.

            The parties are further ORDERED to acknowledge receipt of this notice by replying promptly to the address on this letterhead to the attention of Judge William Moran at that address. This response must include all respondents’ addresses, emails, telephone numbers for the Court to be able to contact the parties, as needed. It is noted that, at present, Mr. Fred Estrada, Runyan Construction, and Freeport McMoran Tyrone, Inc. are the parties in this proceeding.

            IMPORTANT: Failure to comply with any Order from the Court may result in an Order of Default and/or Dismissal being issued. Therefore, it is critical that all parties comply with all Orders and this includes Orders to participate in telephone conference calls at a given date and time.

            In this regard, the Court notes that a conference call was scheduled after the Court was in direct telephone contact with Mr. Fred Estrada and Attorney Kristin White, the latter representing Respondent Freeport McMoran Tyrone, Inc. However, Mr. Fred Estrada did not join the call, which was scheduled for June 27, 2013. Subsequently, on July 5, 2013, Complainant Estrada sent a facsimile to the Court, advising that he tried to phone in to the conference number but was unsuccessful. At the time of the June 27^th call, the Court was under the mistaken impression that Counsel for Freeport McMoran Tyrone Inc. was also representing Runyan Construction. Runyan Construction is either representing itself or has counsel. Whichever is the arrangement, Runyan is advised that it is a named Respondent in this proceeding and as with the other parties, Runyan Construction must also fully comply with all Orders issued by the Court, which includes this Order. Accordingly, as with the other parties in this proceeding, Runyan is ORDERED to acknowledge receipt of this notice by replying promptly to the address on this letterhead and to the attention of Judge William Moran at that address. This response must include all addresses, emails, telephone numbers for the Court to be able to contact the parties as needed. If Counsel has been retained, such counsel should file a notice of appearance.

            It is very likely that another conference call or several such calls will be scheduled with the parties during August. In the event a party is unable to connect to the toll free number: 1-866- 867-4769, such party is directed to call 703 851 2785 and/or 202 577 6809 and advise of the connection problem. NOTE: When calling 1-866- 867-4769, the voice prompt will inform the caller to enter a “pass code” to join the call. That pass code is 144 772. Both steps must occur; one must call the number and then, when prompted, one must enter the pass code in order to connect to the call.

            Fred Estrada is proceeding pro se in this matter and therefore representing himself. However the Court takes note that David Estrada, brother of the Complainant, Fred Estrada, has been assisting the Complainant as a non-attorney assistant. In light of that, the Complainant is ORDERED to provide the Court with all David Estrada’s addresses, emails, telephone numbers for the Court to be able to contact him, unless Fred Estrada advises the Court that his brother, David Estrada, will have no further role in connection with this discrimination proceeding. Fred Estrada is again advised that he has the right to retain an attorney to represent him in this matter but that the federal government does not provide or pay for such attorneys and therefore that all such legal representation costs must be paid for solely by the Complainant.

            Prehearing Exchange. The Parties are ORDERED to exchange with one another all exhibits intended for introduction as part of the record in this proceeding and to list all individuals who will be called as witnesses at the hearing. Do not send a copy of the exhibits to the Court. For each witness listed, the parties are to include a brief summary of the subject(s) about which the witness is expected to testify. This prehearing exchange is to occur by August 30, 2013.

II. ORDER REGARDING MOTION

            Counsel for Freeport McMoran Tyrone, Inc. filed a “Response to Order to Submit Information and Motion to Dismiss.” In a formal sense, it did not file an Answer. Instead, its Motion to Dismiss took precedence over Answering the Complaint. The Motion avers that Freeport is not Mr. Estrada’s employer, and it adds that Mr. Estrada “disclaimed Freeport as a party to his alleged discrimination.” Freeport acknowledges that “Motions to Dismiss are rarely granted, especially as to a pro se Complainant.” The Motion also acknowledges that “[i]n cases brought by pro se complainants, motions to dismiss for failure to state a claim should rarely be granted. Instead, in such a case, a judge should ensure that he informs himself of all the available facts relevant to his decision, including the complainant’s version of those facts.” Motion at 2. (italics added). The Court takes that concession by Freeport to heart and on that basis denies the motion at this time, subject to the content of Freeport’s further submission, as explained below.

            In the Argument section of its Motion, Freeport points to the statement of Mr. Estrada’s brother, David Estrada, that Runyan Construction is the party responsible for the alleged violation. After repeating that Complainant has never been employed by Freeport, it adds that “Mr. Estrada has not made an allegation that he engaged in any protected activity of which Freeport was aware.” Motion at 3. The Motion concludes that “Freeport has never taken any adverse action against Mr. Estrada . . . [and that] Mr. Estrada has failed to state a claim against Freeport for which relief may be granted.”

            The Court does not view the reasons advanced by Freeport for dismissal to be dispositive. It is not for Mr. Estrada to determine if Freeport is a proper party to this proceeding. This observation is particularly true where a litigant is proceeding pro se and is not likely to have the fund of knowledge to make what is ultimately both a factual and legal determination and one for the Court to resolve. In Bryant v. Dingess Mine Service, Winchester Coals, Inc., Mullins Coal Company, Joe Dingess and Johnny Dingess, 10 FMSHRC 1173, 1988 WL 409157 (Sept. 1988) (“Bryant”), the Commission, in the context of a discrimination complaint, addressed the issue of determining the proper respondents. As here, Mr. Bryant, was proceeding on his own behalf, MSHA having declined to file a complaint. The Commission noted that the issue of determining the parties who could be liable for a wrongful discharge “turns upon an examination of the true nature of the relationship existing between the parties . . . [and that] it is the conduct of the parties and not the terminology of the contract which determines the nature of the relationship.” Id. at *1178.

            Therefore, at this point, the Court is without sufficient information regarding the relationship between Freeport McMoran and Runyan Construction including, but not limited to, issues such as the control and authority at the mine, the employer of Todd Hamilton, and the owner of the truck alleged to have safety issues,

            Accordingly, for now at least, Freeport McMoran’s Motion is DENIED.

                                                                                                                            /s/ William B. Moran

                                                                                                                             William B. Moran

Distribution:

Fred Estrada, P.O. Box 404, Tyrone, New Mexico 88064

David Estrada, 3861 East New Berry Ave. SE, Mesa, AZ 85206

Michelle Witter, Esq., Jackson Kelly, PLLC, 1099 18^th Street, Suite 2150, Denver, CO 80202

Runyan Construction Inc., P. O. Box 2827 Silver City, NM 88062

Runyan Construction Inc.,12 Truck By Pass Rd, Silver City, New Mexico 88061