run. Yet, instead of exerting even this slight effort, the Fund did absolutely nothing. Worse yet, it waited four years after the payment schedule ended before it even contacted U.S. Bedding about the existence of entities under common control. And when no response to its single inquiry was forthcoming, it waited to file suit until March 1992, allegedly because U.S. Bedding kept it from learning of Defendants. Yet somewhere between August 1990 and March 1992, the Fund did manage to identify those businesses that might be jointly and severally liable, though, not surprisingly, it is silent as to its method of obtaining this information.
The application of the Fund's theory of accrual of the statute of limitations would allow the Fund to sue as late as July 1992 for the last payment, which was due in July 1986. More importantly, the application of the Fund's theory to a payment schedule spread out over twenty years would give a pension plan twenty-six years from the date of the first missed payment before it had to sue on the last missed payment. Fashioning a rule that would lead to such an absurd result is entirely at odds with the purpose of a six-year statute of limitations, and we decline to do so.
We next address whether the doctrine of equitable estoppel applies to 29 U.S.C. § 1451(f). The Fund argues that Defendants are equitably estopped from asserting the statute of limitations defense, at least as to the payments on which the statute of limitations ran after August 1990, because U.S. Bedding did not respond to the Fund's inquiry regarding businesses under common control. As a threshold matter, we must decide whether § 1451(f) is a jurisdictional or procedural statute of limitations, for the doctrine of equitable estoppel does not apply to jurisdictional statutes of limitations. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2916 (1991).
According to the Seventh Circuit, a statute of limitations is jurisdictional "'if the right being asserted is one unknown to the common law, [and thus] the time limitation is an inherent element of the right and the power of the tribunal to hear the matter.'" Smith v. City of Chicago Heights, 951 F.2d 834, 838 (7th Cir. 1992) (quoting Charleston Comm. Unit Sch. Dist. No. 1 v. Illinois Educ. Labor Rel. Bd., 561 N.E.2d 331, 333 (1990)). Similarly, a statute of limitations is procedural "'if the right upon which the request for relief is based is a common law right, [and thus] the time limitation is merely a procedural matter not affecting the jurisdiction of the tribunal.'" Id. Using this analysis, the court concluded that because a cause of action under 42 U.S.C. § 1983 is essentially a personal injury action, which was recognized at the common law, the statute of limitations was procedural. Id. at 839.
The District of Columbia Circuit applied a different test to determine whether a statute of limitations was jurisdictional in Hardin v. City Title & Escrow Co., 797 F.2d 1037 (D.C. Cir. 1986). There, the court analyzed both the language of the statute, the relative placement of the limitations and jurisdiction provisions within the statute, and the legislative history to determine if Congress intended "to make the time limitation . . . a jurisdictional requirement." Id. at 1039-40. In the statute at issue there, 12 U.S.C. § 2614, the time limitation was contained in the same sentence as the grant of concurrent jurisdiction to the federal and state courts. Id. at 1039. The court found, among other things, that this structure was indicative of Congress's intent to make the limitations period jurisdictional. Id. The court contrasted this structure to that of 15 U.S.C. § 15b, in which the statute of limitations is contained in a wholly separate provision from the grant of jurisdiction. Id. at 1040.
Under either analysis, we find that the statute of limitations in § 1451(f) is jurisdictional. Using the Seventh Circuit's analysis in Cada, which is controlling here, a pension fund's entitlement to payment of withdrawal liability by an employer is a creation of the MPPAA; it did not exist at the common law. The entitlement to withdrawal liability would be meaningless if a pension fund did not have the right to sue where that liability remained unpaid. A pension fund's right to sue for unpaid withdrawal liability arises solely from the MPPAA. Western Confer. of Teamsters Pension Trust Fund v. Thompson Bldg. Materials, Inc., 749 F.2d 1396, 1404 (9th Cir. 1984), cert. denied, 471 U.S. 1054 (1985). On this basis, then, the statute of limitations in § 1451(f) is jurisdictional.
If we apply the Hardin analysis of the District of Columbia Circuit, the statute of limitations provision in § 1451(f) falls somewhere in between that of 12 U.S.C. § 2416 and 15 U.S.C. § 15b. In § 1451, the statute of limitations is contained in the same provision as the grant of jurisdiction to the federal and state courts, although it is in a separate subparagraph, not in the same sentence.
Unlike 15 U.S.C. § 15b, however, the statute of limitations is not contained in an entirely separate provision. The House Reports on the MPPAA indicate that the limitations period was always a part of the same provision as the jurisdictional grant, as it appears in the statute as passed.
See H.R. Rep. No. 869, 96th Cong., 2nd Sess., pt. 1, at 106-07 (1980); H.R. Rep. No. 869, 96th Cong., 2nd Sess., pt. 2, at 91-92 (1980). We believe that the limitations provision in § 1451(f) is more comparable to 12 U.S.C. § 2614 than to 15 U.S.C. § 15b, and that the inclusion of the limitations provision and the grant of jurisdiction in the same provision was intentional. Thus, although this analysis does not provide as compelling a conclusion as the Cada analysis does, we find that § 1451(f) is a jurisdictional statute of limitations under Hardin as well.
The Fund insists that the Seventh Circuit has already determined that § 1451(f) is not jurisdictional because it has applied the doctrine of equitable tolling to the arbitration provision of the MPPAA.
We are not convinced by this argument for two simple reasons. First, the Seventh Circuit has never decided whether the statute of limitations in § 1451(f) is jurisdictional or procedural, or whether equitable tolling applies to it. Second, the cases upon which the Fund relies do not support this proposition. One of those cases, Banner Indus., Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 875 F.2d 1285 (7th Cir. 1989), applied equitable tolling to the arbitration requirement of the MPPAA because the employer contesting its withdrawal liability had promptly filed an action in federal court to address that issue. Another, Chicago Truck Drivers v. Central Transport, Inc., 888 F.2d 1161 (7th Cir. 1989), allowed the time period for arbitration to be tolled where the employer and the pension fund were disputing the withdrawal liability in the employer's bankruptcy action. The continued viability of each decision was called in question by the Seventh Circuit in Central States, Southeast & Southwest Areas Pension Fund v. Slotky, 956 F.2d 1369, 1377 (7th Cir. 1992) ("Both decisions [in Banner and Central Transport] can be questioned, given Congress's evident desire that challenges to withdrawal liability be resolved quickly, given that the employer could pursue his judicial and arbitral remedies simultaneously, . . . and given, therefore, that it would not have been infeasible for the employer to commence arbitration.").
Yet the Fund cites Slotky as well to support its argument that § 1451(f) has been held to be jurisdictional by the Seventh Circuit.
The Fund wants us to apply equitable estoppel, not equitable tolling, here. The doctrine of equitable estoppel is a principle of equity that prevents a defendant from taking affirmative steps to keep a plaintiff from suing before the statute of limitations runs. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2916 (1991). An example of equitable estoppel would be where the defendant promises not to plead the statute of limitations defense. Id. Equitable estoppel acts to toll the statute of limitations, but it does not apply to jurisdictional statutes of limitations. Id.
Because we find that the statute of limitations in 29 U.S.C. § 1451(f) is jurisdictional rather than procedural, the doctrine of equitable estoppel does not help the Fund. We have already determined that the Fund's claim for U.S. Bedding's entire withdrawal liability accrued when the first payment was missed. Consequently, without equitable estoppel to salvage any portion the Fund's claim against Defendants, the Fund's action for the entire amount of U.S. Bedding's unpaid withdrawal liability is barred by the six-year statute of limitations in 29 U.S.C. § 1451(f).
Even if we were to hold that § 1451(f) was a procedural statute of limitations, so that equitable estoppel was available to the Fund, the Fund has failed to allege conduct by Defendants that constitutes equitable estoppel. The Fund points to U.S. Bedding's failure to respond to its single letter as U.S. Bedding's concealment of the identities of Defendants. The Fund contends that U.S. Bedding, as a debtor-in-possession, owed a fiduciary duty to its creditors under the bankruptcy laws, including the Fund, and that the MPPAA requires an employer to respond to any request for information within 30 days.
Moreover, the Fund argues, the statute of limitations in § 1451(f) imposes upon it no obligation of due diligence. Therefore, because U.S. Bedding breached its fiduciary and statutory duties, according to the Fund, Defendants should not be entitled, as a matter of equity, to the defense that the statute of limitations has run on the Fund's claim.
The Fund is a fiduciary as well, and it is in that capacity that it is able to bring this suit. 29 U.S.C. § 1451(a).
But whether held to the standard of a fiduciary or merely the standard of any other plaintiff, we find that the Fund did have an obligation to determine the identities of other potentially liable parties from whom the unpaid withdrawal liability of a bankrupt employer might be recovered. We decline to determine what would constitute sufficient diligence under all circumstances; we hold only that sending a single letter six years after the employer failed to pay upon demand, while knowing of the employer's bankruptcy, does not satisfy any reasonable standard of diligence. There were obviously other avenues available to the Fund to discover the needed information, for it belatedly used one of them to identify Defendants before it filed this suit.
Any party seeking to enforce its rights in court must exercise some diligence to avoid the running of the statute of limitations, including reasonable efforts to identify the appropriate defendants, and for that reason the Fund should have done more than it did. See Brock v. TIC Int'l Corp., 785 F.2d 168, 172 (7th Cir. 1986) (where Department of Labor had knowledge from report of possible breach of trust by plan, three-year statute of limitations in 29 U.S.C. § 1113 began to run even though Department did not know identity of wrongdoer; Department had obligation to investigate).
Moreover, the Fund was not prevented from learning of Defendants' identities by U.S. Bedding's silence, for it eventually identified them by other means. On this basis as well, then, equitable estoppel does not toll the statute of limitations. The Fund's claim against Defendants is untimely under 29 U.S.C. § 1451(f).
We grant Defendants Navco and William M. Caldwell III's Motion to Dismiss on the grounds that the Fund's action is barred by the statute of limitations. This action is dismissed with prejudice as to Navco and William M. Caldwell III.
PAUL E. PLUNKETT
UNITED STATES DISTRICT JUDGE
DATED: July 23, 1992