The opinion of the court was delivered by: MANNING
This case centers around whether defendant Wright Industries, Inc. ("Wright"), which is the parent company of Edward J. Meyers Company ("Meyers"), is liable for withdrawal liability assessed against Meyers under the Employee Retirement Income Security Act of 1994 ("ERISA"), as amended by the Multiemployer Pension Plan Amendment Act of 1980 ("MPPAA"), 29 U.S.C. § 1001, et seq. Plaintiffs Stephen Bridge, William Close, Otis Cross, Michael Faucher, John McCormick, John Naughton, Robert Persak, and Gerald Zero, as the Trustees of the Local 705 International Brotherhood of Teamsters Pension Trust Fund (the "Pension Fund"), have filed suit against Wright pursuant to ERISA to compel payment of withdrawal liability, interest, liquidated damages, and attorneys' fees and costs.
The plaintiffs' motion for summary judgment pursuant to Fed. R. Civ. P. 56 is before the court. For the following reasons, the motion is granted. Wright is liable, however, for delinquent withdrawal payments plus future installment payments, rather than the accelerated entire amount of Meyer's withdrawal liability, plus interest, statutory liquidated damages, and attorneys' fees and costs.
The essential facts are undisputed. The Pension Fund is a multiemployer benefit plan within the meaning of ERISA, 29 U.S.C. §§ 1002(3) & (37), 1301(a)(3).
The plaintiffs are trustees of the Pension Fund and are fiduciaries within the meaning of ERISA, 29 U.S.C. § 1002(21). The Pension Fund maintains its principal place of business in Chicago, Illinois. Wright is the parent corporation of Meyers. Meyers maintained its principal place of business in Summit, Illinois, and was an employer within the meaning of ERISA, 29 U.S.C. § 1002(5). Wright maintains its principal place of business in Summit, Illinois, and is an employer within the meaning of ERISA, 29 U.S.C. § 1002(5). Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America ("Local 705"), is an employee organization within the meaning of ERISA, 29 U.S.C. § 1002(4).
Pursuant to the terms of the collective bargaining agreement with Local 705, Meyers was a contributing employer to the Pension Fund. Meyers ceased operations in July, 1994, and thus permanently ceased to have an obligation to contribute to the Pension Fund, thereby effecting a "complete withdrawal" from the Pension Fund under ERISA. 29 U.S.C. § 1383. In December, 1994, the Pension Fund sent a notice and demand for payment of withdrawal liability pursuant to ERISA, 29 U.S.C. § 1399(b), advising Meyers that the amount of its withdrawal liability was $ 492,179.69. The Pension Fund gave Meyers the option of paying in a lump sum or making monthly payments beginning in January, 1995, in accordance with a minimum payment schedule. In February, 1995, when Meyers failed to make any payments, the Pension Fund sent another letter notifying Meyers that it was delinquent and that it had 60 days to cure its failure to pay.
Meyers did not make any payments to the Pension Fund in response to this letter. In August, 1995, however, it demanded arbitration regarding the Pension Fund's withdrawal liability assessment. The only issue to be determined in arbitration is whether any entities, other than Meyers and Wright, are also liable for Meyers' withdrawal liability.
In October, 1995, the Pension Fund sent a notice and demand for payment of withdrawal liability to Wright, pursuant to ERISA, 29 U.S.C. § 1399(b), advising Wright that, "as parent company of Edward J. Meyers Company and according member of controlled group," it was responsible for Meyers' withdrawal liability of $ 492,179.69.
In September, 1996, Meyers filed for bankruptcy under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Illinois, Case No. 95 B 20192. Neither Meyers nor Wright have made any withdrawal liability payments to the Pension Fund for the $ 492,179.69 withdrawal liability assessed against Meyers for its withdrawal from the Pension Fund.
Wright claims that it cannot make any interim payments because the two pieces of property it owns in Forest View and Summit, Illinois, would have no value upon liquidation due to federal and state tax liens and environmental concerns which preclude a sale in their present condition. In addition, Wright claims that it owes over $ 400,000 in delinquent real estate taxes on both properties and owes over $ 200,000 in secured debt on the Summit property. Finally, Wright claims that it generates approximately $ 8,999 per month in revenue and that it operated at a $ 14,619 loss in July, 1997, a $ 16,163 loss in August, 1997, and an $ 11,726 loss in September, 1997. Thus, it concludes that it cannot afford to make any interim liability payments.
Wright's Compliance With Local Rule 12(n)
Local Rule 12(n) requires a party opposing a motion filed pursuant to Fed. R. Civ. P. 56 to include, in its response to the moving party's 12(m) statement, "specific references to the affidavits, parts of the record, and other supporting materials relied upon" in the case of any disagreement. Local Rule 12(n)(3(a); Rosemary B. v. Board of Educ. of Community High School, 52 F.3d 156, 159 (7th Cir. 1995). It also provides that "all material facts set forth in the statement required by the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Local Rule 12(n)(3)(b). The only portion of the plaintiffs' 12(m) statement disputed by Wright is the Pension Fund's contention that Wright is liable for Meyer's withdrawal liability. Wright's response to this portion of the Pension Fund's 12(m) statement consists of a simple denial.
Local Rule 12 also requires a party opposing a motion for summary judgment to file "a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." Local Rule 12(n)(3)(b). Here, Wright has filed affidavits but no Rule 12(n) statement.
Failure to comply with Rule 12 is not a "harmless technicality." Waldridge v. American Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994). Specifically, under Rule 12(n), a party who does not properly contest the opposing party's Rule 12(m) facts is considered to have admitted those facts. Local Rule 12(n)(3)(b); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1312 (7th Cir. 1995). Because the basis of Wright's position is clear from the papers and the record is not voluminous, the court will exercise its ...