Hu v. Amtrak U.S.A et al

Filing 81

OPINION AND ORDER GRANTING 77 Motion to Dismiss , Party Whiting IN City of terminated. Attorney Sheri Bradtke McNeil terminated; DENYING re 78 Motion To Join. Signed by Judge William C Lee on 9/26/14. (eml)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
YAODI HU and the Estate of
YANQIONG YAO,

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Plaintiffs,
v.
CITY OF WHITING, et al.,
Defendants.

CIVIL NO. 2:14cv129

OPINION AND ORDER
This matter is before the court on a motion to dismiss filed on July 23, 2014, by one of
the defendants, City of Whiting. The plaintiff, Yaodi Hu (“Hu”), proceeding pro se, has not
responded. For the following reasons, the motion will be granted.
Also before the court is a motion to join, filed by defendant City of Hammond on July 24,
2014. Hu has failed to respond to this motion. For the following reasons, the motion will be
denied.
Discussion
On June 18, 2014, Magistrate Judge Paul R. Cherry entered an Order granting in part the
City of Whiting’s motion for more definite statement. Hu was ordered to file a second amended
complaint by the end of business on July 7, 2014. Hu has not filed a second amended complaint
or responded to the Order in any other fashion.
Therefore, the City of Whiting has filed a motion to dismiss. In its motion, the City of
Whiting states that on June 19, 2014, counsel for the City spoke with Hu regarding the Motion
for More Definite Statement and the Court’s Order of June 18, 2014. The City states that Hu
indicated that he was aware of the Court’s Order and requested that a copy be emailed to him.

The City has attached, as Exhibit A, an email from the City to Hu, in which the City provided Hu
with copies of the Order and Motion. However, Hu did not confirm receipt. All mail sent to Hu
from this Court, since May of 2014, has been returned as undeliverable. Hu has not, as required,
kept the Court informed of his current address.
The City relies on Rule 41(b) of the Federal Rules of Civil Procedure which provides that
if a plaintiff fails to prosecute or comply with the Federal Rules or a Court Order, a defendant
may move to dismiss the action or any claim against it. Such dismissal operates as an
ajdudication on the merits. Thus, the City of Whiting is requesting a dismissal with prejudice.
In the present case, it is clear that Hu has failed to comply with the Court’s Order of June
18, 2014. This has rendered the City unable to file an Answer or otherwise defend because, as
previously determined by the Court, “[i]t is unclear from the First Amended Complaint what
claim is being brought against Defendant City of Whiting.” June 18, 2014 Order at 2.
Accordingly, the City of Whiting’s motion to dismiss will be granted.
The City of Hammond has filed a motion to join the City of Whiting’s motion to dismiss.
The City of Hammond states that “if the Court’s order requiring [Hu] file a Second Amended
Complaint, was intended to apply to all of the Defendants” the City of Hammond wishes to join
in the City of Whiting’s motion to dismiss.

A review of the June 18, 2014 Order reveals that

the Order only concerned the City of Whiting, and no other defendant is mentioned anywhere in
the Order. Accordingly, the motion to join will be denied.
Conclusion
On the basis of the foregoing, the City of Whiting’s motion to dismiss with prejudice [DE
77] is hereby GRANTED.

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Further, the City of Hammond’s motion to join [DE 78] is hereby DENIED.

Entered: September 26, 2014.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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