United States District Court, W.D. New York
PAUL J. FROMMERT, et al., Plaintiffs,
SALLY L. CONKRIGHT, et al., Defendants.
DECISION AND ORDER
G. LARIMER United States District Judge.
case arises under the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1101 et seq.
The case has a lengthy history, familiarity with which is
assumed for purposes of this Decision and Order. But in
general, this action deals with employees who worked for
Xerox Corporation (“Xerox”), and who left
Xerox’s employ at some point, at which time each of
them took a lump-sum distribution of accrued pension
benefits. Plaintiffs later returned to work for Xerox, for a
second period of employment. The basic dispute arises out of
Xerox’s treatment of the employees’ prior
distributions when calculating plaintiffs’ subsequent
pension benefits, following their second periods of
now established in this case that Xerox’s actions with
respect to the plaintiffs’ pension benefits violated
ERISA, specifically ERISA’s notice provisions. See
Frommert v. Conkright, ___F.Supp.3d ___, 2016 WL
7186489, at *2 (W.D.N.Y. 2016) (“If nothing else, this
litigation has established that defendants violated ERISA
through [certain conduct], and that plaintiffs who were
adversely affected by that inequitable conduct are entitled
to relief”). For some time, the central question
remaining in this case has been how best to provide
plaintiffs with a remedy for that violation.
January 5, 2016, this Court issued a Decision and Order (Dkt.
#283) (“Remedy Order”), pursuant to a remand from
the Court of Appeals for the Second Circuit, to decide on an
appropriate remedy. The Court ordered defendants “to
recalculate and pay plaintiffs’ retirement benefits,
treating plaintiffs’ second periods of employment with
Xerox as if plaintiffs had been newly hired and without
regard for their prior periods of employment ... .” 153
F.Supp.3d 599, 616 (W.D.N.Y. 2016). The Court went on to set
forth some details as to the specific treatment to be given
to plaintiffs in different circumstances, such as those who
had already retired, those who planned to retire in the
future, and so on.
days later, plaintiffs filed a motion for prejudgment
interest. (Dkt. #284.) On November 3, 2016, the Court issued
an order (Dkt. #319) granting in part and denying in part
that motion (“PJI Order”). The Court directed
defendants “to pay prejudgment interest to each
plaintiff who has taken a distribution of benefits under the
Plan, who received less than would have been due under the
Court's new-hire remedy imposed on January 5,
2016.” The Court stated that “[t]he award should
be calculated using the prime interest rate, as published by
the Federal Reserve, as to each plaintiff, calculated from
the date of the plaintiff’s distribution up to January
5, 2016.” ___F.Supp.3d ___, 2016 WL 6524250, at *6.
then moved for an award of attorney’s fees under
ERISA’s fee-shifting provision, 29 U.S.C. §
1132(g). The Court issued an order (Dkt. #338) deciding that
motion on December 12, 2016 (“Fees Order”). The
Court granted plaintiffs attorney’s fees in the amount
of $4,711,430.70, and costs in the amount of $174,174.
have now moved for “clarification and/or
reconsideration” of the PJI Order (“C/R
Motion”) (Dkt. #329). Plaintiffs ask the Court to
“clarify” its decision regarding three issues,
concerning the rate of prejudgment interest, the start date
from which to calculate prejudgment interest, and the amount
of interest owing to what defendants have described as
“overpaid” plaintiffs. See Dkt. #329-1
at 3. Defendants have filed a response opposing that motion
have also moved for “reconsideration or
correction” (“Fees Motion”) of what they
characterize as a mistake in the Fees Order (Dkt. #339).
Specifically, plaintiffs contend that the Court mistakenly
neglected to award fees for time spent on this case by one of
plaintiffs’ attorneys, Victor O’Connell. The
Court has not issued a scheduling order on that motion, and
defendants have not responded to that motion.
filing those two motions, however, and after defendants filed
their response to the C/R Motion, plaintiffs filed a notice
of appeal to the Court of Appeals from the PJI Order, from
the Fees Order, and from other decisions and orders of this
Court. (Dkt. #341).
United States Supreme Court has stated, plaintiffs’
“filing of a notice of appeal is an event of
jurisdictional significance–it confers jurisdiction on
the court of appeals and divests the district court of its
control over those aspects of the case involved in the
appeal.” Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982). See also N.Y. State
Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1350
(2d Cir. 1989) (the filing of an appeal “divest[s] the
district court of jurisdiction respecting the questions
raised and decided in the order that is on appeal”).
a pending appeal, a district court retains residual
jurisdiction over purely “collateral matters,” in
other words, matters that do not depend on, or will not
affect, the outcome of the appeal. Tancredi v. Metro,
Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004). The
district court may also “correct a clerical mistake or
a mistake arising from oversight or omission whenever one is
found in a judgment, order, or other part of the
record,” but, “after an appeal has been docketed
in the appellate court and while it is pending, such a
mistake may be corrected only with the appellate
court’s leave.” Fed. R. Civ. P. 60(a).
light of the pending appeal, I conclude that the Court lacks
jurisdiction to decide the pending motions, and that even if
the Court has jurisdiction, the wiser course would be to deny
the motions pending the outcome of the appeal.
thing, plaintiffs have appealed from the very orders that
they are asking this Court to “reconsider” or
“correct.” As to the Fees Order, I recognize that
the requested relief is narrow in scope, and goes only to one
attorney’s claimed hours and compensation, as a
component of the fee award. But the fact remains that
plaintiffs’ Fees Motion relates directly to an order of
this Court that the plaintiffs themselves have appealed to
the Second Circuit. Whatever the Court of Appeals does with
respect to the pending appeal, it will be a simple enough
matter to deal with the fees attributable to attorney
O’Connell, if necessary, after the appeal has been
the C/R Motion, I note initially that “there is no
Federal Rule of Civil Procedure specifically governing
‘motions for clarification.’”
University of Colorado Health at Mem. Hosp. v.
Burwell, 164 F.Supp.3d 56, 61 (D.D.C. 2016) (internal
quote omitted). Although so-called motions to
“clarify” are not uncommonly filed, they are
typically treated as motions for relief under Rule 54(b),
see, e.g., In re Navy Chaplaincy,
170 F.Supp.3d 21, 29 ...