Rochester Laborers' Welfare-S.U.B. Fund, et al v. Structural Remediation Services, Inc. et al

Filing 107

DECISION & ORDER Appointing Bradley P. Kammholz, Esq., of Kammholz Messina, LLP, 1501 Pittsford-Victor Road, Suite 202, Victor, New York 14564, to faithfully and diligently represent defendants Mary Ellen Belding and Structural Remediation Services, LLC pro bono. The Court will also issue an Order directing PACER to waive its fees so that pro bono counsel can access any other documents filed in this case that he may need. If any portion of the file in this matter is not available through PACER on the Court's Case Management/Electronic Case Management System, the Clerk of the Court shall provide a free copy of any such documents to pro bono counsel upon request. A status conference to be held on 12/12/2017 at 10 :15 AM before the Hon. Marian W. Payson. At that time, a hearing shall be scheduled to determine whether the appointment of a guardian ad litem is appropriate to protect defendant Mary Ellen Beldings interests. (Attorney Bradley Kammholz added f or Mary Ellen Belding and Structural Remediation Services, Inc.) Signed by Hon. Marian W. Payson on 11/16/2017. Copy of this Decision & Order sent by First Class Mail to defendants Mary Ellen Belding, 1467 Fallen Leaf Terrace, Webster, NY 14580 and Structural Remediation Services, Inc., 1115 East Main Street, Rochester, NY 14609 on 11/16/2017. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
ROCHESTER LABORERS’ WELFARE-S.U.B.
FUND BY ROBERT BROWN AS CHAIRMAN,
AND DANIEL HOGAN AS SECRETARY, et al.,
DECISION & ORDER
Plaintiffs,
15-CV-6171CJS
v.
STRUCTURAL REMEDIATION SERVICES, INC.,
et al.,
Defendants.
_______________________________________

On September 27, 2017, defendants’ retained attorneys, Abrams, Fensterman,
Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, filed a motion to withdraw as
counsel. (Docket # 92). This Court held oral argument on November 8, 2017, and following
oral argument granted the request to withdraw. (Docket ## 104, 106). For the reasons explained
more fully on the record on November 8, 2017, this Court indicated that it would attempt to
identify an attorney willing to represent defendants in this matter on a pro bono basis. A
subsequent telephone conference was held on November 16, 2017, with defendant Mary Ellen
Belding and Jennifer A. Clark, Esq. During the conference, Ms. Belding affirmed that she had
not retained new counsel and did not expect to be able to do so.
Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent
litigants, see, e.g., Sears, Roebuck & Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22, 23 (2d
Cir. 1988), and the assignment of pro bono counsel in civil cases is within the trial court’s
discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).

Additionally, each lawyer – especially those who are admitted to practice in
federal court and who are, therefore, in a position to reap the benefits of such practice – has a
professional obligation to provide pro bono services for the poor. See New York Rules of
Professional Conduct, Rule 6.1. In additional, Rule 83.1(f) of the Local Rules of Civil Procedure
provides that:
Every Member of the bar of this Court who maintains, or whose
firm maintains, an office in this District, shall be available upon
the Court’s request for appointment to represent or assist in the
representation of indigent parties.
Local Rules of Civil Procedure Rule 83.1(f).
Because the Court finds that appointment of counsel is warranted in this case, the
Court assigns Bradley P. Kammholz, Esq., of Kammholz Messina, LLP, 1501 Pittsford-Victor
Road, Suite 202, Victor, New York 14564, to faithfully and diligently represent defendants Mary
Ellen Belding and Structural Remediation Services, LLC pro bono.
The Court will also issue an Order directing PACER to waive its fees so that pro
bono counsel can access any other documents filed in this case that he may need. If any portion
of the file in this matter is not available through PACER on the Court’s Case
Management/Electronic Case Management System, the Clerk of the Court shall provide a free
copy of any such documents to pro bono counsel upon request.
A status conference shall be held with the undersigned at 2310 U.S. Courthouse,
Rochester, New York on December 12, 2017, at 10:15 a.m. At that time, a hearing shall be

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scheduled to determine whether the appointment of a guardian ad litem is appropriate to protect
defendant Mary Ellen Belding’s interests.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
November 16, 2017

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