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CENTRAL STATES

February 13, 1995

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, et al., Plaintiffs,
v.
MARINE CONTRACTING CORPORATION, Defendant.



The opinion of the court was delivered by: JOHN F. GRADY

 Plaintiffs Central States, Southeast and Southwest Areas Pension Fund and Central States, Southeast and Southwest Areas Health and Welfare Fund (collectively "Central States") sued Marine Contracting Corporation ("Marine") under the Employee Retirement Income Security Act of 1974 ("ERISA") to recover employer contributions. Defendant Marine moves to dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). *fn1" For the reasons explained, the motion is denied.

 BACKGROUND

 The plaintiffs are employee benefit plans and trusts, financed by employers who contribute pursuant to collective bargaining agreements with local unions affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The funds hold and invest the employers' contributions in order to provide pension and health and welfare benefits to plan participants and beneficiaries. The defendant is an Ohio corporation engaged in river and harbor improvement projects, including clamshell and hydraulic dredging.

 On May 1, 1989, the defendant Marine entered into a collective bargaining agreement with Local 571 of the International Brotherhood of Teamsters, which represented two of Marine's employees, Robert Hilko and Ralph Stephan. The collective bargaining agreement covered the period of May 1, 1989, through April 30, 1991. It was then extended through April 30, 1993. Under this agreement, Marine agreed to pay contributions to Central States on behalf of covered employees. After the collective bargaining agreement expired on April 30, 1993, no negotiations occurred between Local 571 and Marine, and no successive collective bargaining agreement was made. *fn2"

 Marine and Local 571 also entered into a Participation Agreement on July 12, 1987. The Participation Agreement required Marine to contribute to Central States on behalf of covered employees pursuant to the terms of the collective bargaining agreement. It also included the following duration clause:

 
This Agreement shall continue in full force and effect until such time as the Employer notifies the Fund(s) by certified mail (with a copy to the Local Union) that the Employer is no longer under a legal duty to make contributions to the Fund(s). . . . The employer expressly agrees and hereby acknowledges by the signing of this Agreement that its obligation to make contributions to the Fund(s) shall continue until the above-mentioned written notice is received by the Fund(s) and the Trustees acknowledge the Employer's termination in writing.

 Participation Agreement P 7. Marine did not provide any written notice to Central States prior to October 14, 1993.

 Central States requires participating employers to report any changes in the employment status of covered employees. On December 1, 1993, Central States received a reporting form from Marine dated November 29, 1993, and signed by its president, Victor J. Monz. The reporting form notified Central States that one of the covered employees, Robert Hilko, terminated his employment on April 22, 1993, and that the other covered employee, Ralph Stephan, terminated his employment on October 14, 1993. The form contained a certification clause which stated:

 
The employer hereby reaffirms his obligation to make contributions required by the Collective Bargaining Agreement and further represents that all employees eligible to participate in the Fund, in accordance with the rules of the Fund and the 'Employee Retirement Security Act of 1974', are being reported and only those eligible employees are being reported."

 After April 30, 1993, Marine did not make any further contributions to the plans. On November 24, 1993, Central States filed this suit against Marine to recover contributions for the period May 1993 to October 1993. Central States claims that Marine owes $ 6,889.67 to the Health and Welfare Fund and $ 1,871.01 to the Pension Fund for unpaid contributions plus interest and liquidated penalties.

 DISCUSSION

 This opinion treats Marine's motion as one to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The motion recites that defendants also seeks to dismiss pursuant to Rule 12(b)(6); however, the motion does not advance an argument to dismiss for failure to state a claim. In ruling on a motion to dismiss for lack of subject matter jurisdiction, the court may properly consider the affidavits and other evidence submitted by the parties. Roman v. United States Postal Serv., 821 F.2d 382, 385 (7th Cir. 1987). The court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993).

 Marine argues that this court lacks subject matter jurisdiction to hear this suit for two reasons: first, because jurisdiction under ERISA is dependent upon the existence of a collective bargaining agreement; second, because the National Labor Relations Board has primary jurisdiction to determine ...


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