The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, we deny the motion to dismiss.
Plaintiff Central States, Southeast and Southwest Areas Pension Fund ("Central") and Plaintiff Howard McDougall ("McDougall") (collectively referred to as "Fund") allege that Central is a multi-employer pension plan as defined under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"). McDougall is allegedly a trustee of Central. The Fund alleges that Defendant O'Neill Bros. Transfer & Storage Co. ("O'Neill") was subject to one or more collective bargaining agreements under which O'Neill was required to make contributions to the Fund on behalf of certain of its employees. According to the Fund, on February 3, 2007, O'Neill effected a complete withdrawal from the Fund and ceased to have an obligation to contribute to the Fund. On February 8, 2007, counsel for O'Neill informed the Fund that O'Neill was "preparing for its termination and liquidation." (A. Compl. Par. 13). According to the Fund, the pension plan at issue ("Plan") provided that in the event of a liquidation or dissolution by an employer, the Fund could demand immediate and total discharge of liability owed to the Fund.
The Fund claims that, in accordance with 29 U.S.C. § 1381(b), O'Neill had a withdrawal liability of $1,263,855.07 and the Fund notified O'Neill of the liability in May 2007. In August 2007, the Fund allegedly notified O'Neill that the revised liability of O'Neill was $1,689,191.36. The Fund contends that O'Neill has failed to pay the monies owed to the Fund and has brought the instant action pursuant to provisions of ERISA. O'Neill now moves to dismiss this action.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint.
Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Under the current notice pleading standard in federal courts a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "'provide the defendant with at least minimal notice of the claim,'" Kyle, 144 F.3d at 455(quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)), and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").
O'Neill argues that this action should be dismissed since the Fund failed to comply with this court's order issued on December 20, 2007 ("December 20 Order"), which granted Fund leave to file an amended complaint. O'Neill also argues that Fund has failed to state a valid claim in the amended complaint.
I. Amendment of Complaint
O'Neill argues that the Fund failed to comply with the December 20 Order when the Fund filed the amended complaint. On November 5, 2007, O'Neill filed a motion to dismiss the original complaint, arguing that the Fund was improperly seeking a judgment on the merits. O'Neill contended that the Fund cannot obtain such relief until the parties follow alternate dispute resolution procedures. The Fund responded to the motion to dismiss indicating that it was not seeking a final judgment on the merits and the Fund acknowledged the potential for alternate dispute resolution procedures. The Fund contended that O'Neill's motion was based upon a "misreading and mis-characterization" of the complaint. (Ans. 1st Mot. 2). In the December 20 Order, we noted that certain allegations in the original complaint did indicate that the Fund was seeking a final judgment on the merits and we ordered the Fund to file an amended complaint to clarify its position. O'Neill contends that the Fund, in its amended complaint, is still seeking full payment from O'Neill and that the Fund thus failed to comply with the December 20 Order. O'Neill requests that the court dismiss this action as a sanction for the Fund's non-compliance.
O'Neill contends that in the December 20 Order we "agreed that [the Fund] was not entitled to a payment of the entire amount of the alleged withdrawal liability pending the outcome of the applicable dispute resolution procedures, including arbitration." (Mem. 2nd Mot. 2). O'Neill points to the portion of the December 20 Order, in which we stated that "[w]e agree that the complaint contains certain allegations intimating that Plaintiff is seeking the relief objected to by Defendants." (12/20/08 OR 2). However, contrary to O'Neill's assertions, we made no legal findings concerning the Fund's rights to full payment or interim payments prior to the completion of alternate dispute resolution procedures. We merely indicated in the December 20 Order that the Fund believed that O'Neill's motion was based upon a misunderstanding on O'Neill's part, and we gave the Fund leave to amend the complaint to clarify its position. We gave the Fund an opportunity to restate its allegations in order to resolve the apparent misunderstanding and allow this case to proceed onward to discovery. We did not order the Fund to amend its complaint in any specific fashion. We stated that the Fund was ordered to file an amended complaint including allegations "consistent with the position taken by [the Fund] in its answer to the motion to dismiss" and "clarifying the relief sought by" the Fund. (12/20/08 OR). The Fund has filed an amended complaint, clarifying its position that it is not seeking a judgment on the merits. The Fund also sufficiently ...