Opinion
99 Civ. 10347 (LAK).
October 16, 2002
ORDER
After dismissing the first amended class action complaint without prejudice, Pavlov v. Bank of New York Co., No. 99 Civ. 10347 (LAK), 2001 WL 424185, at *1 (S.D.N.Y. Apr. 18, 2000), this Court dismissed all of the claims in the second amended class action complaint. Pavlov v. Bank of New York Co., 135 F. Supp.2d 426 (S.D.N.Y. 2001). By summary order dated January 14, 2002, the Court of Appeals vacated the later decision, disagreeing only with the Court's dismissal of plaintiffs' RICO claim for failure adequately to plead a RICO enterprise. It remanded for consideration of other bases for dismissal.
On March 19, 2002, defendants renewed their motion to dismiss the second amended complaint. In April 2002, the Court granted plaintiffs' application to extend the time for the filing of their response to the motion, as well as to file a proposed cross-motion, until May 10, 2002. No such papers were filed.
On May 24, 2002, defense counsel wrote to the Court, with a copy to plaintiffs' counsel, and advised that they had not received any papers and that further delay would be inconvenient. They asked that the Court either foreclose further briefing altogether or, alternatively, give defendants until late June to respond to any submission by the plaintiffs.
Plaintiffs never responded to the motion. They have been in default for more than five months. At this point, they have forfeited any right to respond to the motion.
The Court has reviewed defendants' papers. For the reasons stated in point II of defendants' memorandum of law, dated March 19, 2002, the motion to dismiss is granted in all respects and the action is dismissed with prejudice. In the alternative, the action is dismissed for lack of prosecution.
SO ORDERED.