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United States District Court, N.D. Illinois

February 11, 2004.

A-P-A TRANSPORT CORP., et al., Defendants

The opinion of the court was delivered by: JOHN GRADY, Senior District Judge


Before the court is plaintiffs' motion for summary judgment. For the reasons stated below, the motion is granted.


  Defendant A-P-A Transport Corporation ("APA") ceased operations on February 22, 2002. Prior to this date, APA had been an employer contributing to plaintiff Central States, Southeast and Southwest Areas Pension Fund (the "Fund"), a multiemployer pension plan. When APA ceased operations, it effectuated a "complete withdrawal" from the Fund within the meaning of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1383. When an employer withdraws from a multiemployer plan, the employer becomes immediately liable for its proportionate share of unfunded vested benefits. See 29 U.S.C. § 1381; Trustees of the Chicago Page 2 Truck Drivers. Helpers & Warehouse Workers Union (Indep.) Pension Fund v. Rentar Indus., 951 F.2d 152, 153 (7th Cir. 1991).

  ERISA provides that upon withdrawal, a multiemployer pension fund shall "determine the amount of the employer's withdrawal liability, notify the employer of the amount of the withdrawal liability, and collect the amount of the withdrawal liability from the employer." 29 U.S.C. § 1382 (numerals omitted). Here, the Fund calculated the withdrawal liability of APA and the companies under "common control" with APA (collectively, "defendants," see infra note 1) to be $1,988,780.03, and notified defendants of that amount.*fn1 Thereafter, defendants requested, pursuant to 29 U.S.C. § 1399 (b)(2)(A), that the Fund review its withdrawal liability determination. The Fund reaffirmed its assessment. Defendants then initiated an arbitration proceeding, which is currently pending.

  The Fund and its trustee (collectively, "plaintiffs") subsequently filed the instant action to collect interim withdrawal Page 3 liability payments from defendants. Plaintiffs new move for summary judgment.


  Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c). In considering such a motion, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Pitasi v. Gartner Group. Inc., 184 F.3d 709, 714 (7th Cir. 1999).

  The law regarding defendants' responsibility to make interim payments of their withdrawal liability is clear. While the parties' arbitration proceeds, defendants must either pay the entire sum of their withdrawal liability or make periodic payments in an amount determined by the trustees. See Trustees of the Chicago Truck Drivers. Helpers & Warehouse Workers Union (Indep.) Pension Fund v. Central Transport. Inc., 935 F.2d 114, 116 (7th Cir. 1991) (citing 29 U.S.C. § 1399(c)(2), 1401(d)).*fn2 Defendants acknowledge as much but contend that we should exercise our Page 4 "equitable discretion" to deny plaintiffs summary judgment because of the "unique facts" of this case. (Response at 4.)*fn3 According to defendants, this case is unique because, while APA does not have "liquid assets" available to satisfy its withdrawal liability, it does have valuable real property that it is currently attempting to sell. (Response at 3-5.)

  Unfortunately for defendants, we have no general equitable power to excuse interim payments. See Central Transport, 935 F.2d at 119. Furthermore, there is only one narrow exception to the interim payment requirement for cases where an employer can show both that a pension fund lacks a colorable claim end that the employer would be irreparably harmed by an order compelling interim payments. See id.; Rentar, 951 F.2d at 155. Defendants cannot, and do not attempt to, establish either prong of the exception. Summary judgment for plaintiffs is thus appropriate.

  Plaintiffs seek interest on the interim payments and liquidated damages plus attorney's fees and costs. Defendants do not appear to object to awards of interest, costs, or attorney's fees (and even if they did, we would award them for the reasons outlined infra), but they do argue that we should exercise our "equitable discretion" to deny the request for liquidated damages. Page 5

  The Fund is entitled to liquidated damages; defendants must pay them as a penalty for "deciding not to make installment payments until being ordered to do so by a court." See Chicago Truck Drivers. Helpers & Warehouse Union (Indep.) Pension Fund v. Century Motor Freight. Inc., 125 F.3d 526, 534 (7th Cir. 1997). Defendants are also liable for interest on the missed installment payments, accruing from the due date of each payment. See id. at 535.

  We believe that plaintiffs are also entitled to reasonable attorney's fees and costs. "ERISA makes it clear that an employer withdrawing from a multiemployer pension fund must pay withdrawal liability to the Fund, and [Seventh Circuit] cases make it equally clear that interim payments must be made pending arbitration." Central States, Southeast & Southwest Areas Pension Fund v. Wintz Properties, Inc., 155 F.3d 868, 876 (7th Cir. 1998). Despite this clear mandate, defendants refused to make those payments, and thus made it necessary for plaintiffs to file this action.


  For the foregoing reasons, plaintiffs' motion for summary judgment is granted. Plaintiffs' motion to voluntarily dismiss without prejudice defendant Valkyrie Air Corp. is granted.

  Plaintiffs may prepare a draft judgment order in accordance with this memorandum opinion (supported by affidavits as to fees and costs), submit it to opposing counsel for any objections as to Page 6 form, and submit a final draft order to the court by February 27, 2004.

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