The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge.
By Order of United States Magistrate Judge George H. Lowe filed October 16, 2009, Plaintiffs were afforded thirty (30) days in which to comply with the filing fee requirements for this civil action by either paying the statutory filing fee of three hundred fifty dollars ($350) or submitting completed in forma pauperis applications, if they wished to avoid dismissal of this action. (Dkt. No. 2 [the "October Order"].)*fn1
During the more than two months that have elapsed since the issuance of Magistrate Judge Lowe's October Order, Plaintiffs have not made the required submissions, nor have they otherwise communicated with the Court regarding this action. (See generally Docket Sheet.)
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to (1) prosecute an action or (2) comply with any order or procedural rule of the court. Fed. R. Civ. P. 41(b). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y., Aug. 22, 1996) (Pooler, J.) (citations omitted). Furthermore, this power may be exercised sua sponte. See Link v. Wabash R.R. County Independent Sch. Dist., 370 U.S. 626, 630-31 (1962).
Generally, the correctness of a Fed. R. Civ. P. 41(b) dismissal for failure to comply with an order or procedural rule of the Court is determined in light of the following five factors: (1) the duration of the plaintiff's failure to comply; (2) whether plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Hevner v. Village East Towers, Inc., No. 07-5608, 2008 WL 4280070, at *1-2 (2d Cir. Sept. 18, 2008); Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
Here, after carefully considering the matter, the Court finds that each of these five factors weighs in favor of dismissal of this action. As for the first factor, more than two months have elapsed since Plaintiffs were directed to comply with the filing-fee requirements for this action. However, Plaintiffs have not so complied, nor have they even communicated with the Court or its Clerk's Office about any aspect of this litigation.*fn2 As a result, the Court finds that the first factor weighs in favor of dismissal.
As for the second factor, Plaintiffs were given specific notice in the October Order that their failure to timely comply with that Order by either paying the filing fee or submitting completed and signed in forma pauperis applications might result in the dismissal of this action. (Dkt. No. 2 at 1.) Plaintiffs were also provided with a blank in forma pauperis application for their use in complying with the October Order. (Id.) As a result, the Court finds that the second factor weighs in favor of dismissal.
As for the third factor, the Court finds that Defendants may be prejudiced by further delay in the proceedings. For example, a further delay may well affect witnesses' memories, the ability to locate witnesses, and the preservation of evidence.*fn3 As a result, the Court finds that the third factor weighs in favor of dismissal.
As for the fourth factor, the Court finds that, in light of the fact that Plaintiffs have not indicated their intention to comply with the October Order or requested additional time in which to do so, the need to alleviate congestion on the Court's docket outweighs Plaintiffs' right to receive a further chance to comply with the October Order.*fn4 As a result, the Court finds that the fourth factor weighs in favor of dismissal.
Finally, as for the fifth factor, the Court has carefully considered whether a sanction less drastic than dismissal would be appropriate under the circumstances. As an initial matter, the Court notes that Plaintiffs' Complaint was accepted for docketing on September 30, 2009, notwithstanding the fact that they had not complied with the filing fee requirements; in this regard, the October Order was itself a sanction less drastic than dismissal.*fn5 Moreover, there is no reason to believe that simply affording Plaintiffs a further opportunity to comply with their obligations under the October Order would likely to be fruitful, because they have failed to do so for two months now (as they have also failed to communicate with the Court or its Clerk's Office about any aspect of this litigation). Nevertheless, in light of Plaintiffs' pro se status, the Court will lessen the sanction so that it consists of a dismissal without prejudice.*fn6 As a result, the Court finds that, with regard to the modified sanction, the fifth factor weighs in favor of dismissal.
ORDERED that Plaintiffs' Complaint (Dkt. No. 1) is sua sponte DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(b), due to Plaintiffs' failure to comply with the Court's Order of October 16, 2009, regarding the filing-fee requirements for this action.
Dated: January 12, 2010 ...