German v. Blinken

Background

Jhony German, proceeding without a lawyer, filed a mandamus action against Anthony Blinken. The court held a telephone conference on December 3, 2021, and allowed Blinken to file a motion to dismiss. Blinken later moved under Federal Rule of Civil Procedure 12(b)(1), which addresses subject-matter jurisdiction, and Rule 12(b)(6), which addresses failure to state a legally sufficient claim.

German did not respond by the deadline. The court then issued two additional orders directing him to respond and warning that continued failure to do so could result in dismissal for failure to prosecute. The orders were mailed to the address on file and were not returned by the Postal Service. German did not respond to either order or otherwise participate in the case.

Court’s analysis

The court applied five factors used when deciding whether to dismiss a case for failure to prosecute under Rule 41(b): the length of the plaintiff’s failure to participate; whether the plaintiff received notice that further delay could lead to dismissal; likely prejudice to the defendant; the court’s effort to balance case-management concerns with the plaintiff’s opportunity to be heard; and whether a lesser sanction would work.

The court found that every factor favored dismissal. German had not communicated with the court for more than six months, had received two warnings, and had not shown circumstances overcoming the presumption that the delay prejudiced Blinken. The court also concluded that German had been given a fair chance to participate and that no lesser sanction would effectively address his failure to prosecute.

Disposition

The court dismissed German’s case with prejudice for failure to prosecute under Rule 41(b). It directed the clerk to terminate the pending motion to dismiss, close the case, and mail German a copy of the order. The court did not decide the underlying mandamus claim or the grounds raised in Blinken’s motion to dismiss.