Kim v. Nelson

Background

Justina Joungsoon Kim, also known as Maria J. Kim, brought this action against Kelvin (Kevin) Nelson without a lawyer. She filed the complaint on August 5, 2021. Federal Rule of Civil Procedure 4(m) generally requires service of the complaint within 90 days. The court stated that Kim’s service deadline was November 3, 2021, and that she had not served Nelson by November 29, 2021.

The Clerk of Court was then ordered to issue a summons and provide the materials needed for service to the U.S. Marshals Service. Those materials were mailed to Kim. After two more months without further prosecution of the case, the court ordered Kim to serve the summons and complaint properly. The court warned that the action could be dismissed if she did not complete service or show good cause by February 28, 2022.

On March 17, 2022, the court issued another order requiring Kim to explain why the case should not be dismissed without prejudice for failure to prosecute. Kim responded with a letter that repeated her original allegations and appeared to add new fraud allegations. The letter did not address whether she had served the complaint, as the court’s earlier orders required.

Court’s Analysis

Federal Rule of Civil Procedure 41(b) permits involuntary dismissal when a plaintiff fails to prosecute a case or comply with the rules or a court order. The court explained that a district court also has authority to dismiss a case on its own for failure to prosecute, but that dismissal is a severe remedy and unrepresented plaintiffs receive special leniency in procedural matters.

The court considered the relevant factors, including the length of Kim’s failures, whether she had been warned that further delay could lead to dismissal, possible prejudice from further delay, the balance between court administration and Kim’s opportunity to be heard, and whether lesser sanctions would be effective. The court concluded that these factors favored dismissal because Kim had failed to comply with multiple orders and had repeatedly been warned that the case could be dismissed.

Disposition

Judge Kenneth M. Karas dismissed the action without prejudice for failure to prosecute. The Clerk of Court was directed to mail the order to Kim and close the case.