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Central States, Southeast and Southwest Areas Pension Fund, and Howard Mcdougall, Trustee v. Nagy Ready Mix

July 22, 2011

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, AND HOWARD MCDOUGALL, TRUSTEE, PLAINTIFFS,
v.
NAGY READY MIX, INC., ET AL. DEFENDANTS.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge:

Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

Presently before us are cross-motions for summary judgment in this withdrawal liability action brought under the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiffs, a multiemployer pension fund and its trustee (collectively "the Fund"), seek judgment against Defendants Nagy Ready Mix, Inc., Nagy Trucking, Inc., Nagy Concrete Company (collectively, "the Nagy Entities") and Charles F. Nagy*fn1 for approximately $3.6 million, which represents the withdrawal liability that Nagy Ready Mix incurred in June 2007.*fn2 The Nagy Entities concede that they are collectively liable to the Fund for any withdrawal liability assessment and thus, we enter summary judgment against the Nagy Entities. (See Defs.' Resp., Dkt. No. 45, at 2.)

The parties dispute, however, whether Nagy can be held personally liable for the withdrawal liability, based on certain of his business activities. The Fund contends that Nagy's conduct in leasing property to Nagy Ready Mix constitutes a "trade or business" under ERISA § 1301(b)(1), subjecting him to liability. The Fund argues that Nagy's work for Wells Venture Corporation ("WVC"), an unrelated entity, also qualifies as the operation of a trade or business within the statute's meaning. Having considered these arguments and the evidence before us, we deny Defendants' motion, but grant Plaintiffs' motion.

BACKGROUND FACTS*fn3

The essential facts are undisputed. When the withdrawal occurred in June 2007, Nagy owned, directly or indirectly, at least 80% of either the total combined voting power or the total value of all outstanding stock of the Nagy Entities. Nagy also served as the president, treasurer, and a member of the board of directors for each of the Nagy Entities. Nagy acknowledges that he controlled the Nagy Entities.

A. Lease of the Hixson Property

Nagy Ready Mix-the entity that incurred the withdrawal liability-was a ready mix concrete company, located at 48000 Hixson, Utica, Michigan ("the Hixson Property"). Nagy Trucking also operated out of the Hixson Property. Nagy Ready Mix bought the Hixson Property in 1972, after Nagy selected the parcel and negotiated the terms of the purchase. In 1986, Nagy Ready Mix conveyed the Hixson Property to Nagy, who retained ownership either directly or through his personal trust ("the Trust") for estate planning purposes. At the time of the original purchase, the Hixson Property held a ready mix plant and garage. Thereafter, whileunder Nagy's control, the old ready mix plant was destroyed and replaced with a new facility. A reclaimer system, a second ready mix plant, and an office building were also constructed on the Hixson Property.

Prior to 2005, Nagy, through the Trust, leased the Hixson Property back to Nagy Ready Mix.*fn4 Nagy set the terms of the lease, which was a triple net lease, and signed the agreement on behalf of both landlord and tenant. Pursuant to the triple net lease, Nagy Ready Mix was responsible for all utility, insurance and tax bills, as well as maintenance and repair of the Hixson Property. Nagy testified that he spent one hour per year on matters concerning the lease of the Hixson Property to Nagy Ready Mix. Nagy Ready Mix paid monthly rent to Nagy, who deposited the checks into a personal joint bank account shared with his wife. For each of the tax years 2005 through 2008, Nagy reported rental income of $108,000 from his lease of the Hixson Property. Nagy also deducted depreciation expenses from the rental income during these tax years.

B. Nagy's Work for WVC

Nagy held a minority ownership interest in WVC and several other entities, which collectively owned, developed and operated a golf course and restaurant at the course. Nagy also has served as president and a member of the board of directors for WVC and the related entities. From the early-1990s through 2005, Nagy oversaw daily operations of the golf course as its administrative officer.*fn5 He also performed bookkeeping and management services for WVC, such as bank reconciliation, meeting with attorneys, and processing paperwork for house lot sales.

In 2005, a decision was made to sell the golf course, and Nagy's responsibilities increased. At that point, the board of directors began compensating Nagy for his duties, which expanded to include negotiation of the sale of the course. All golf course employees were terminated when the course was sold, but Nagy remained and continued to provide management and other services. Although Nagy considered himself to be a WVC employee "in a sense," he was not paid as an employee; he received a 1099 Form for his services, rather than a W-2. (Pls.' Resp. Defs.' SOF ¶ 35 & Nagy Dep. at 35.) Nagy elected to receive a 1099, like an independent contractor, because he did not want to bother with regular payroll reporting for a single worker-himself. The purchaser of the golf course eventually fell behind in its payments, and Nagy took on the task of pursuing default remedies, including retaining legal counsel. WVC and the related entities repossessed the golf course in January 2010.

During tax years 2005 through 2008, Nagy reported his WVC income on Schedule C of his federal tax returns. Schedule C concerns "Profit or Loss from Business (Sole Proprietorship)." In these returns, Nagy described his principal business as "accounting services," though he testified that he used this phrase as a "catch-all" for his daily management services. (Nagy Dep. at 34--35.) Though an accountant by education, Nagy has not performed any accounting services except for: (1) family, without remuneration; or (2) a corporate entity in which he held an ownership interest. Nagy stated on the Schedules C that his business address was WVC's address, until he began working out of his home after the 2005 sale of the golf course. Although the returns indicate that Nagy deducted "office expense[s]" in 2007 and 2008, he did not treat these expenses as relating to "business use" of his home. (See Nagy Dep., Exs. 2--5 at Schedule C ¶¶ 18, 30.) Nagy stated each year that he "materially participate[d]" in his accounting services business. WVC paid Nagy $150 per hour for his work, and he reported more than $214,000 in income from WVC for these four tax years.

The parties dispute why Nagy worked for WVC and the related golf course entities. According to his deposition and affidavit, however, Nagy worked for WVC for various reasons, including the above-noted compensation and to protect his substantial investment. (See Nagy 1/4/11 Aff. ¶ 16 (indicating that "one of the primary reasons" was to protect his interests in the entities); Nagy Dep. at 34--35, 49--52 (describing his services, hourly rate and payment).)

STANDARD OF REVIEW

Summary judgment is proper only when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(a). A genuine issue for trial exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). This standard places the initial burden on the moving party to identify those portions of the record that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986) (internal quotations omitted). Once the moving party meets this burden of production, the nonmoving party "must go beyond the pleadings" and identify portions of the record demonstrating that a material fact is genuinely disputed. Id.; Fed. R. Civ. P. 56(c). In deciding whether summary judgment is appropriate, we must accept the nonmoving party's evidence as true, and draw all reasonable inferences in that party's favor. See Anderson, 477 U.S. at 255.

ANALYSIS

ERISA, as amended by the Multiemployer Pension Plan Amendments Act of 1990 ("MPAAA"), imposes withdrawal liability on employers who cease to contribute to a multi-employer pension fund. See 29 U.S.C. §§ 1001--1371, 1381--1461; see also Central States v. Neiman, 285 F.3d 587, 594 (7th Cir. 2002); Central States v. Fulkerson, 238 F.3d 891, 894 (7th Cir. 2001); Central States v. SCOFBP, LLC, 738 F. Supp. 2d 840, 845 (N.D. Ill. 2010). This liability represents "the employer's proportionate share of the unfunded vested benefits owed to its employees." SCOFBP, LLC, 738 F. Supp. 2d at 845 (internal quotation omitted); Neiman, 285 F.3d at 594; Central States v. White, 258 F.3d 636, 640 (7th Cir. 2001). "Congress established withdrawal liability . . . to ensure that when an employer withdraws from a pension plan, the financial burden of its employees' vested pension benefits would not be borne by the other employers in the plan." Central States v. Personnel, Inc., 974 F.2d 789, 791 (7th Cir. 1992); SCOFBP, LLC, 738 F. Supp. 2d at 846 (explaining that ERISA is designed "to protect employees who have been promised retirement benefits from employers who seek to avoid their responsibilities").

To further this purpose, ERISA withdrawal liability extends to all "trades or business (whether or not incorporated) which are under common control." 29 U.S.C. § 1301(b)(1); White, 258 F.3d at 640. Thus, each trade or business under common control with the withdrawing employer becomes jointly and severally liable for the liability. Neiman, 285 F.3d at 594; White, 258 F.3d at 640; Fulkerson, 238 F.3d at 894. "[T]o impose withdrawal liability on an organization other than the one obligated to the fund, two conditions must be satisfied: (1) the organization [or individual] must be under common control with the obligated corporation; and

(2) it must be a trade or business." Fulkerson, 238 F.3d at 894; Neiman, 285 F.3d at 594; White, 258 F.3d at 640; SCOFBP, LLC, 738 F. Supp. 2d at 845. Here, the parties do not dispute that Nagy controlled the Nagy Entities. The question before us is whether any of Nagy's other, unincorporated activities constitute engaging in a ...


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