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CENTRAL STATES

October 7, 1997

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, and HOWARD McDOUGALL, trustee, Plaintiffs,
v.
KENT I. TURNER, KENNETH E. TURNER and DORIS TURNER, Defendants.



The opinion of the court was delivered by: ALESIA

 This matter is before the court on plaintiffs' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Motion granted.

 I. BACKGROUND1

 Plaintiff Central States Southeast and Southwest Areas Pension Fund ("Pension Fund") is a multiemployer pension plan within the meaning of 29 U.S.C. § 1002(37) and § 1301(a)(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiff Howard McDougall is a trustee of the Pension Fund.

 Defendants Kent I. Turner, Kenneth E. Turner, and Doris Turner are general partners of Turner Expediting Service. Turner Expediting Service is a Kentucky general partnership which has filed for relief under the Bankruptcy Code. None of the three defendant general partners has filed for bankruptcy relief in their individual capacities.

 Turner Expediting Service was subject to a collective bargaining agreement ("CBA") executed with Teamster Local Union No. 89. Turner Expediting Service was required to make contributions to the Pension Fund when its employees worked pursuant to the terms and conditions of the CBA.

 On September 24, 1996, the Pension Fund determined that Turner Expediting Service permanently ceased to have an obligation to contribute to the Pension Fund under the CBA. Turner Expediting Service thereby effected a "complete withdrawal" from the Pension Fund within the meaning of § 4203 of the ERISA, 29 U.S.C. § 1383.

 Consequently, the Pension Fund issued a notice and demand for payment of the withdrawal liability in the amount of $ 17,612.14 for Turner Expediting Service's pro rata share of the Pension Fund's unfunded vested liability. The amount of the liability was payable in a lump sum or in monthly payments of $ 3,407.29. Turner Expediting Service received notice of the liability on November 4, 1996.

 Because no payments were received, the Pension Fund issued a past due notice and demand for withdrawal liability pursuant to § 4219(c)(5)(A) of the ERISA, 29 U.S.C. § 1399(c)(5)(A). Turner Expediting Service received the past due notice on January 2, 1997.

 Turner Expediting Service never requested review of the withdrawal liability determination pursuant to § 4219(b)(2)(A) of the ERISA, 29 U.S.C. § 1399(b)(2)(A). Nor did it initiate arbitration of its withdrawal liability assessment within the time period specified by § 4221(a)(1) of the ERISA, 29 U.S.C. § 1401(a)(1). To date, the Pension Fund has not received any payments from Turner Expediting Service.

 II. SUMMARY JUDGMENT - STANDARD OF REVIEW

 Under FED. R. CIV. P. 56(c), summary judgment shall be granted if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir. 1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir. 1987).

 III. DISCUSSION

 The Pension Fund and McDougall seek summary judgment against defendants in their individual capacities for the amount of the withdrawal liability ($ 17,612.14) plus interest, fees, costs, liquidated damages, and attorneys' fees. *fn2" ...


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