The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Plaintiff Central States, Southeast and Southwest Areas Pension Fund's and Howard McDougall's (collectively referred to as "Central") motion for reconsideration. This matter is also before the court on Defendant O'Neill Bros. Transfer & Storage Co.'s (O'Neill) motion for reconsideration. Based on the foregoing analysis, we grant Central's motion for reconsideration and deny O'Neill's motion for reconsideration.
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). O'Neill was subject to one or more collective bargaining agreements under which O'Neill was required to make contributions to the pension plan on behalf of certain of its employees. According to Central, on February 3, 2007, O'Neill effected a complete withdrawal from the pension plan and ceased to have an obligation to contribute to the plan. On February 8, 2007, counsel for O'Neill informed Central that O'Neill was "preparing for its termination and liquidation." (A. Compl. Par. 13). According to Central, the pension plan provided that in the event of a liquidation or dissolution by an employer, the plan could demand immediate and total discharge of liability owed to the plan. Central contends that O'Neill has failed to pay the monies owed to the pension plan and has brought the instant action pursuant to provisions of ERISA. On April 1, 2009, we granted Central's motion for summary judgment. Central now seeks certain technical amendments to the final judgment. O'Neill seeks to challenge the substantive basis for the April 1, 2009, ruling and asks the court to vacate the ruling.
A party can move to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e) (Rule 59(e)). However, Rule 59(e) motions do not give a party the opportunity to rehash old arguments or to present new arguments or evidence "that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)(citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). Rather, for a Rule 59(e) motion, the movant "'must clearly establish either a manifest error of law or fact or must present newly discovered evidence'" in order to be successful. LB Credit Corp., 49 F.3d at 1267 (quoting Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)).
I. O'Neill's Motion for Reconsideration
O'Neill argues that the court erred in granting Central's motion for summary judgment and in denying O'Neill's request for the return of its interim payment and its request for attorneys' fees.
A. Reinstatement of Motion for Summary Judgment
O'Neill contends that the court improperly reinstated Central's motion for summary judgment sua sponte and that O'Neill was not given an opportunity to address the summary judgment issues before the court ruled. O'Neill requests that the court give O'Neill "the opportunity to fully brief all matters relating to summary judgment." (O Recon. 12). On October 21, 2008, we denied Central's motion for summary judgment, but we merely denied the motion without prejudice since the parties had not provide the court with sufficient information at that juncture. (10/21/08 OR 2). On April 22, 2009, we reinstated Central's motion for summary judgment and granted the motion for summary judgment. In reinstating the motion for summary judgment we recognized that "'a district court can enter summary judgment sua sponte, or on its own motion, under certain limited circumstances'" and that "'granting summary judgment sua sponte warrants special caution' and generally requires that the party against whom summary judgment is entered have notice and an opportunity to present its evidence." Golden Years Homestead, Inc. v. Buckland, 557 F.3d 457, 461-62 (7th Cir. 2009)(quoting in part Simpson v. Merchs. Recovery Bureau, Inc., 171 F.3d 546, 549 (7th Cir. 1999)). In entering judgment in favor of Central, we granted a motion filed by Central. We did not decide to enter summary judgment sua sponte without briefing by the parties and thus, as in Golden Years, the ruling cannot "be characterized as purely sua sponte." Id. Central filed a motion for summary judgment, providing O'Neill with notice of Central's arguments and the motion was fully briefed by the parties prior to the October 21, 2008, ruling. O'Neill was not denied an opportunity to present its positions in this case. In addition to the briefs for the summary judgment motion, both parties were given opportunities to file additional memorandums since October 21, 2008. Finally, O'Neill now argues that it was technically denied the right to inform the court of circumstances that may have changed since the October 21, 2008, ruling that would impact on Central's motion for summary judgment. However, O'Neill fails in its motion for reconsideration to reference any new circumstances or evidence that would warrant the denial of Central's motion for summary judgment. O'Neill has failed to point to any issues relating to Central's motion for summary judgment that have not been briefed by the parties. O'Neill refers only vaguely to potential "new facts" that may be relevant for the summary judgment ruling. (O Recon. 12). Thus, O'Neill has not shown that granting of Central's motion for summary judgment was improper. See Golden Years Homestead, Inc., 557 F.3d at 462 (stating that ruling was not truly sua sponte since the issues were addressed by the parties, the plaintiff had an opportunity to weigh in on the issues, and the plaintiff had "not identified any significant evidence that it omitted").
B. Finding of Default and Compliance with Act
O'Neill argues that the court improperly granted Central's motion for summary judgment since only after a default by O'Neill could the court enter summary judgment in favor of Central. However, in granting Central's motion for summary judgment, we found that O'Neill was in default. The basis of Central's claims in this case and its request for summary judgment seeking an award of outstanding liability, was the payment of outstanding liability based upon a default by O'Neill under 29 U.S.C. § 1399(c)(5). (SJ 2-3)(A Compl. Par. 11-20). Central has shown, based on the undisputed facts included with its motion for summary judgment and the entirety of the record in this case, that O'Neill was in default, that Central presented O'Neill with a proper demand, that O'Neill has rejected Central's demand and proposed payment schedule and that Central is now entitled to an immediate payment of all outstanding withdrawal liability. Central had provided O'Neill with a proper demand for payment in compliance with ERISA prior to bringing this action. The Revised Payment Schedule provided to O'Neill by Central gave O'Neill an opportunity to pay what O'Neill owed to Central pursuant to a periodic payment schedule instead of a lump sum payment. See Trustees of Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund v. Central Transport, Inc., 935 F.2d 114, 116 (7th Cir. 1991)(stating that "[w]hile the arbitration proceeds, the employer must either pay the whole sum or make periodic payments in an amount determined by the trustees"); see also Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of California, Inc., 522 U.S. 192, 208 (1997)(recognizing that for defaults under 29 U.S.C. § 1399(c)(5), "a plan has the option to accelerate and collect the entire debt if the employer defaults" and stating that "[t]rustees confronting a delinquent employer may accelerate if they decide such a course is in the best interests ...