Holland et al v. Becker et al

Filing 41

DECISION AND ORDER The stay entered on November 7, 2014 39 is lifted, and the complaint is dismissed. Signed by Hon. David G. Larimer on 6/22/2018. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
LAWRENCE R. HOLLAND, et al.,
DECISION AND ORDER
Plaintiffs,
08-CV-6171L
v.

LAWRENCE M. BECKER, et al.,
Defendants.
___________________________________________

This case involves claims for pension benefits, arising under the Employee Retirement
Income Security Act (“ERISA”), 29 U.S.C. § 1101 et seq., brought by nine current and former
employees of Xerox Corporation (“Xerox”). The factual background has been set forth in an
October 28, 2013 Decision and Order (Dkt. #19), familiarity with which is assumed.
In that Decision and Order, the Court dismissed all of plaintiffs’ claims, other than their
claims for breach of fiduciary duty and for equitable relief based on defendants’ failure and
refusal to apply to them the directives of the Court of Appeals for the Second Circuit in that
court’s 2006 decision in a related case, Frommert v. Conkright. See id. at 13.
Because plaintiffs’ prior attorney had died in 2009, while this action was pending, the
Court also directed the plaintiffs to “take steps to apprise this Court and the defendants if they
intend to continue prosecuting this action, and if so, whether they are going to retain [new]
counsel or proceed pro se.” The Court further advised the plaintiffs that they needed to “ensure

that the Court and defendants are kept informed as to plaintiffs’ current address,” and that “if
they fail to do so, their claims may be dismissed with prejudice, without a trial.” Id. at 12.
Following the issuance of that order, five plaintiffs contacted the Court and indicated that
they were voluntarily withdrawing their claims. Those plaintiffs’ claims have been dismissed.
The other four plaintiffs–Ellen Ohstrom, Robert Palermo, James Sykes, and Robert Warner–did
not respond to the Court’s order, and have not provided the Court with their current mailing
address, as directed by the Court.
On May 12, 2014, defendants filed a motion to stay this action (Dkt. #34). The remaining
four plaintiffs did not respond to the motion to stay.1 On November 7, 2014, Magistrate Judge
Jonathan W. Feldman, noting the fact that “the Court received no response papers opposing
[defendants’] Motion,” granted the stay motion. (Dkt. #39.)
The Court has received no communications from plaintiffs since then. The only docket
entry after the issuance of the stay order is a change of address filed by defendants’ attorney.
(Dkt. #40.)
Given the plaintiffs’ failure to respond to the Court’s October 2013 order, their failure to
respond to defendants’ motion for a stay, and their complete lack of communication with the
Court since the death of their previous attorney some nine years ago, it appears that they have no
intention of prosecuting this case any further. Plaintiffs were notified by the Court that their
failure to respond to the Court’s October 2013 order could result in the dismissal of their claims
without a trial. In addition, pro se litigants are required by Local Rule 5.2(d) to furnish the Court

1

One of the five plaintiffs whose claims have been dismissed, Ruth Falcon, notified the Court of her
intention to voluntarily withdraw her claims shortly after defendants filed their motion for a stay. See Dkt. #37, #38.

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with a current address at all times, and the rule expressly states that “[f]ailure to do so may result
in dismissal of the case with prejudice.”
In light of these circumstances, I see no reason to require defendants or the Court to
continue to expend any further time or effort in this case. Plaintiffs were afforded ample
opportunity to inform the Court if they wished to continue to prosecute this case, and they have
not done so. I therefore conclude that the case should be dismissed.

CONCLUSION
The stay entered on November 7, 2014 (Dkt. #39) is lifted, and the complaint is
dismissed.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
June 22, 2018.

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