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CENTRAL STATES

April 11, 1995

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, et al., Plaintiffs,
v.
ART PAPE TRANSFER, INC., Defendant.



The opinion of the court was delivered by: ROBERT W. GETTLEMAN

 Plaintiffs Central States, Southeast and Southwest Areas Pension Fund and its present Trustees bring this action to collect damages relating to pension plan withdrawal liability, asserting a claim pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), §§ 502(a)(3) and 4301(a)(1), 29 U.S.C. §§ 1132(a)(3) and 1451(a)(1) against defendant. *fn1" Before the court is defendant's motion for summary judgment, along with supporting and opposing memoranda, affidavits and exhibits. For the reasons stated below, the court grants defendant's motion.

 Facts2

 The events that led to this action began in October, 1985, when Ringle Express, Inc. ("Ringle") ceased operations covered under a collective bargaining agreement. Ringle's cessation of operations triggered a complete withdrawal, as defined in 29 U.S.C. § 1383, from plaintiffs' multi-employer pension plan. In August, 1985, prior to this occurrence, McGriff Corporation, owner of the stock in Ringle, sold the Ringle stock to Dixiana of Georgia. In March 26, 1986, plaintiffs sent Ringle a Notice and Demand for payment of withdrawal liability.

 On March 13, 1986, Dixiana of Iowa ("Dixiana") was incorporated. Plaintiffs allege, and for purposes of this motion defendants concede, that Dixiana is the "alter-ego" of Dixiana of Georgia. In March, 1990, defendant Art Pape Transfer, Inc. merged with Dixiana, forming one entity which thereafter was called Art Pape Transfer, Inc.

 On May 1, 1991, plaintiffs filed a suit in this court titled Central States, et al v. Machinery Trailers, Inc., McGriff Corp., Ann Lee McGriff, as Personal Representative of Estate of Robert L. McGriff, deceased and Davenport Bank and Trust Company as Trustee of the Robert L. McGriff Trust, Case No. 91 C 2628 (N.D. Ill.) ("Machinery Trailers"). In Machinery Trailers, plaintiffs asserted a cause of action against said defendants for the withdrawal liability of Ringle alleging that Machinery Trailers, McGriff Corp., and Ringle constitute a single employer within the meaning of ERISA and therefore are jointly and severally liable for the Ringle Withdrawal Liability. The parties to Machinery Trailers settled that case and entered into a Settlement and Release Agreement (the "Agreement").

 The Agreement contains the following relevant passages:

 
Recitals
 
* * * *
 
C. On or about October 1, 1985, Ringle ceased all operations covered by its collective bargaining agreement, permanently ceased to have an obligation to contribute to the [plaintiffs'] Pension Fund and permanently ceased making contributions to the Pension Fund, thereby effecting a complete withdrawal from the Pension Fund.
 
D. As a result of Ringle's complete withdrawal from the Pension Fund on or about October 1, 1985, the Pension Fund issued an assessment and demand to Ringle for payment of its withdrawal liability in the amount of $ 2,274,342.50.
 
E. On or about May 1, 1991, the Pension fund filed a complaint . . . against Machinery Trailers, McGriff Corp., Ann McGriff and Davenport Bank, seeking the entire amount of the withdrawal liability assessment of $ 2,274,342.50, interest in the amount of $ 748,278.76, liquidated damages in the amount of $ 748,278.76, billing charges in the amount of $ 15,275.88, amortization charges in the amount of $ 462,228.47, attorney fees and court costs (collectively, the "Ringle Withdrawal Liability")
 
* * * *
 
K. The Pension Fund and the McGriffs now desire to compromise and settle all claims brought in the Federal Court Case relating to the Ringle Withdrawal Liability, and the Pension Fund desires to fully and finally release any and all claims arising out of or in any way ...

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