§ 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).
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.
For the reasons discussed below, the motion is granted.
When an employer withdraws from a multiemployer plan, the plan determines the amount of the employer's withdrawal liability, notifies the employer of this amount, and collects the amount from the employer. 29 U.S.C. § 1382. Here, Turner Expediting Service withdrew from the multiemployer plan. Consequently, the Pension Fund determined the amount of the withdrawal liability as $ 17,612.14, notified the employer of the liability twice, and, of course, is now attempting to collect that amount. Defendants failed to pay the requested amount.
If the employer disputes the amount of the withdrawal liability, the dispute "shall be resolved through arbitration." 29 U.S.C. § 1401(1). Here, Turner Expediting Service never initiated the arbitration process.
If the employer fails to initiate the arbitration process -- as Turner Expediting Service did here -- the "amounts demanded by the plan sponsor ... shall be due and owing ...." 29 U.S.C. § 1401(b)(1). Accordingly, the amount of $ 17,612.14 demanded by the Pension Fund is due.
Although the Pension Fund originally permitted the amount of the withdrawal liability to be paid in monthly installments, "in the event of a default, a plan sponsor may require immediate payment of the outstanding amount of an employer's withdrawal liability." 29 U.S.C. § 1399(c)(5). A "default" occurs if the employer fails to make any payment if the failure is not cured within 60 days after the employer receives written notification of the failure to pay. Here, defendants are in default; they were sent notice and have not made any payment well beyond the 60 day period. Accordingly, defendants are immediately liable for the full amount of the withdrawal liability.
Moreover, under 29 U.S.C. § 1451(b), withdrawal liability cases are treated as delinquent employer contribution cases under 29 U.S.C. § 1145. Because withdrawal liability cases are treated as § 1145 cases, under 29 U.S.C. § 1132(g)(2), the Pension Fund "shall" be awarded interest on unpaid contributions, an amount equal to the greater of the interest on the unpaid contributions or liquidated damages (as determined by § 1132(g)(2)(C)(ii)), reasonable attorneys' fees, and costs. Accordingly, the Pension Fund is directed to submit documentation supporting its position as to the amount of § 1132(g)(2) "relief" it is entitled.
Summary Judgment as to liability is granted in favor of plaintiffs, Central States, Southeast and Southwest Areas Pension Fund and Howard McDougall, trustee, and against defendants, Kent I. Turner, Kenneth E. Turner and Doris Turner. Plaintiffs are given to October 17, 1997, to submit by affidavit an itemization of claimed damages in addition to $ 17,612.14 withdrawal liability including interest, liquidated damages, attorneys' fees and costs.
Date: OCT 07 1997
James H. Alesia
United States District Judge