MCNEIL v. CITY OF PITTSBURGH et al

Filing 12

ORDER DISMISSING CASE. The above-captioned action against Defendants City of Pittsburgh, Pittsburgh Bureau of Police-Department of Public Safety, and Nathan Harper is hereby dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.Signed by Judge Donetta W. Ambrose on 1/11/2012. (sps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Maurice McNeil,
Plaintiff,
vs.
City of Pittsburgh, Pittsburgh Bureau of
Police – Department of Public Safety,
Nathan Harper, Allegheny County, Dan
Onorato, Stephen A. Zappala, Jr.,
Allegheny County District Attorney
Detectives, Terrance O’Leary, Carl
Schradder, William Friburger, Robert L.
Kavals, Eric J. Harper, Wesley McClellan,
Phillip Mercurio, Michael Horgan, James
Stocker,
Defendants.

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Civil Action No. 09-825

AMBROSE, Senior District Judge

MEMORANDUM ORDER OF COURT
Plaintiff, Maurice McNeil (“McNeil” or “Plaintiff”), filed a Complaint against Defendants
City of Pittsburgh, Pittsburgh Bureau of Police – Department of Public Safety, Nathan Harper,
Allegheny County, Dan Onorato, Stephen A. Zappala, Jr., Allegheny County District Attorney
Detectives, Terrance O’Leary, Carl Schradder, William Friburger, Robert L. Kavals, Eric J.
Harper, Wesley McClellan, Phillip Mercurio, Michael Horgan, and James Stocker, in the Court of
Common Pleas of Allegheny County on or about May 29, 2009. (Docket No. 1, Ex. A). On
June 24, 2009, Defendants City of Pittsburgh, Pittsburgh Bureau of Police – Department of
Public Safety, and Nathan Harper (“City Defendants”) removed the case to this Court. (Docket
No. 1). On July 6, 2009, the City Defendants filed an Answer to the Complaint and Affirmative
Defenses. (Docket No. 2).

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On October 31, 2011, Defendants City of Pittsburgh Police Officers, Carl Shradder
(Carlos Shrader), William Friburger, Robert L. Kavals, Eric J. Harper (Harpster), and Phillip
Mercurio (“Officer Defendants”), filed a Motion to Dismiss pursuant to 12(b)(5) arguing that
Plaintiff failed to serve sufficient process on them. (Docket No. 3). At a status conference held
in this case on November 7, 2011 (Docket No. 4), Plaintiff’s counsel agreed that the only service
made was on the City Defendants. Plaintiff’s counsel also represented to the Court that he is
currently unable to locate Plaintiff. Plaintiff did not file any response to the Motion to Dismiss.
On November 21, 2011, I granted the Officer Defendants’ Motion to Dismiss and
dismissed the Officer Defendants from this action without prejudice pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure. (Docket No. 5). On that same date, I also issued an Order to
Show Cause why Defendants Allegheny County, Dan Onorato, Stephen A. Zappala, Jr.,
Allegheny County District Attorney Detectives, Terrance O’Leary, Wesley McClellan, Michael
Horgan, and James Stocker (“County Defendants”) should not be dismissed for failure to serve
pursuant to Rule 4(m). (Docket No. 6). The Order to Show Cause directed Plaintiff to respond
by November 29, 2011; however, Plaintiff failed to do so. On December 7, 2011, I entered an
order dismissing the County Defendants from this action without prejudice pursuant to Rule
4(m) of the Federal Rules of Civil Procedure. (Docket No. 7).
On December 9, 2011, I issued an Order to Show Cause why the City Defendants
should not be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure
41(b). (Docket No. 9). The Order to Show cause directed Plaintiff to respond by December 30,
2011; however, Plaintiff failed to do so. Plaintiff also failed to appear for his noticed deposition
or otherwise participate in discovery.

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Accordingly, this 11th day of January, 2012, it is ordered that the above-captioned action
against Defendants City of Pittsburgh, Pittsburgh Bureau of Police-Department of Public Safety,
and Nathan Harper, is hereby dismissed pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure.

BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
Senior U.S. District Judge

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