The opinion of the court was delivered by: Wood, U.S.D.J.
By order dated May 5, 2008, the Court denied Plaintiffs' motion for default judgment against Defendant Marsh, without prejudice to refile no later than May 21, 2008. Plaintiffs, who are represented by counsel, did not refile their motion by the appointed date, nor have they requested an extension of time to comply with the Court's order. Therefore, for the reasons stated below, the Court DISMISSES this action for failure to prosecute.
Plaintiffs filed this action against Defendant Marsh, the Department of Homeland Security ("DHS"), and the U.S. Citizenship and Immigration Services ("CIS"). Plaintiffs allege that Defendant Marsh, a former employee of CIS, interviewed Plaintiff Marisol Capellan ("Capellan") in connection with a citizenship interview. During that interview, Defendant Marsh allegedly asked Capellan "sexually related questions which had no bearing on the Citizenship interview," made "obscene gestures," and held her "captive in his office against her will and consent." (Compl. ¶¶ 12-14.) The Complaint does not make clear what causes of action Plaintiffs allege, but states that Defendant Marsh violated Capellan's "Civil and Constitutional Rights and Liberties." (Compl. ¶ 15.)
On September 18, 2006, DHS and CIS filed a motion to dismiss the action against them for lack of subject matter jurisdiction. (D.E. 4.) Plaintiffs opposed this motion. By order dated April 23, 2007, the Court dismissed this action against DHS and CIS. (D.E. 11.) Defendant Marsh did not file an answer or move to dismiss Plaintiffs' action against him.
Plaintiffs took no action following the Court's April 23, 2007 order until September 10, 2007, when Plaintiffs filed a motion for default judgment against Defendant Marsh.*fn1 The Court denied this motion without prejudice to refile no later than December 2, 2007, because Plaintiffs failed to submit "(1) the Clerk's certificate of default, (2) a copy of the claim to which no response has been made, and (3) a proposed form of default judgment, as required by Local Rule 55.2." (Oct. 31, 2007 Order, D.E. 14.)
After the Court denied their first motion for default judgment, Plaintiffs asserted in a series of letters to the Court that they could not refile their default judgment motion until they obtained certain personal information about Defendant Marsh from CIS. They requested that the Court "so order" a confidentiality order and Privacy Act order that would permit CIS to release this information (the "CIS Orders"). (See Nov. 9, 2007 Letter, D.E. 15; Nov. 30, 2007 Letter, D.E. 16; Dec. 17, 2007 Letter, D.E. 17; Dec. 31, 2007 Letter, D.E. 19.) However, Plaintiffs repeatedly failed to comply with the Court's order that they (a) detail the information about Defendant Marsh that they required in order to file a motion for default judgment, and (b) state the authority upon which they rely. (See Jan. 3, 2008 Order, D.E. 19; Jan, 29, 2008 Order, D.E. 20; Feb. 19, 2008 Order, D.E. 22.) During this period, the Court twice warned Plaintiffs that failure to comply with the Court's order would result in dismissal of the action for failure to prosecute. (See Jan. 29, 2008 Order, D.E. 20; Feb. 19, 2008 Order, D.E. 22.)
By letter dated February 20, 2008, Plaintiffs provided the Court with the requested information. The Court therefore "so ordered" the CIS Orders and extended Plaintiffs' deadline to file a default judgment against Defendant Marsh until March 25, 2008. (See Feb. 29, 2008 Order, D.E. 25.) Between November 9, 2007 and February 29, 2008, the Court granted Plaintiffs three extensions of time to resubmit their default judgment motion, totaling nearly four months of additional time. (See Nov. 28, 2007 Order, D.E. 15; Dec. 20, 2007 Order, D.E. 18; Feb. 29, 2008 Order, D.E. 25.)
On March 18, 2008, Plaintiffs filed a second motion for default judgment against Defendant Marsh. However, Plaintiffs' motion again contained numerous defects. Most significantly, "Plaintiffs asserted [that their] cause of action [arose] under Title VII of the Civil Rights Act of 1964 ('Title VII'), but their Complaint d[id] not state a Title VII claim." (See May 5, 2008 Order, D.E. 26.) By order dated May 5, 2008, the Court denied this motion without prejudice to refile no later than May 21, 2008. The May 5, 2008 order stated, in bold and underlined text, that "FAILURE TO SUBMIT A PROPER MOTION FOR DEFAULT JUDGMENT WILL RESULT IN DISMISSAL OF THIS ACTION FOR FAILURE TO PROSECUTE." (See May 5, 2008 Order, D.E. 26.)
Plaintiffs' time to file a third motion for default judgment has passed, and Plaintiffs have neither filed a motion nor requested an extension of time to comply with the Court's order. The Court has not received any correspondence from Plaintiffs since it issued its May 5, 2008 order.
"[W]here a plaintiff fails to comply with court orders and/or fails to prosecute an action pending in a district court," the Court may dismiss the action sua sponte for failure to prosecute. Sanders v. Does, No. 05 Civ. 7005, 2008 WL 2117261, at *2 (S.D.N.Y. May 15, 2008); see also Martens v. Thomann, 273 F.3d 159, 179 (2d Cir. 2001); Fed. R. Civ. P. 41(b). "Although involuntary dismissal is a valuable tool for preventing undue delays and avoiding docket congestion, it is also one of the harshest sanctions at a trial court's disposal . . . . As such, it should only be employed in the most extreme circumstances." Shapiro v. United States, No. 07 Civ. 161, 2008 WL 2073499, at *1 (S.D.N.Y. May 15, 2008) (internal quotation marks and citations omitted).
In determining whether an action should be dismissed for failure to prosecute, the Court considers five factors:
(1) the duration of the plaintiff's failures; (2) whether plaintiff had received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair ...