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Central States, Southeast v. Messina Trucking

September 27, 2011

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, AND HOWARD MCDOUGALL, TRUSTEE, PLAINTIFFS,
v.
MESSINA TRUCKING, INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiffs Central States, Southeast and Southwest Areas Pension Fund and Howard McDougall, Trustee, (collectively "The Fund") sued Messina Trucking, Inc., Auburn Supply Company, Inc., Utica Equipment Company, Messina Products, L.L.C., (collectively, "Messina Control Group"), Stephen L. Messina, and Florence M. Messina, under the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), 29 U.S.C.§ 1001, et seq., for approximately $3 million, which represents the withdrawal liability that Messina Trucking incurred when it withdrew from the Fund in October 2007. *fn1

The parties filed cross-motions for summary judgment [35, 40].*fn2 The Fund claims that all of the defendants, both corporate and individual, are liable under section 1301(b)(1) of the MPPAA. Messina Control Group concedes that Messina Trucking and Utica are liable to the Fund for any withdrawal liability, but argues that the other entities and Stephen and Florence Messina were not a "trade or business" and therefore are not liable for withdrawal liability. For the below reasons, the court determines that Auburn and Messina Products are liable for withdrawal liability, as they were under common control and were in a trade or business. The court also concludes that the Stephen and Florence Messina were not engaged in a trade or business and therefore escape liability. Accordingly, Plaintiffs' motion [40] is granted in part and denied in part and Defendants' motion [35] is granted in part and denied in part. In sum, Messina Trucking, Utica, Auburn, and Messina Products are liable for withdrawal liability; Stephen and Florence Messina are not.

I. Background

The Pension Fund is a multiemployer pension plan under ERISA, administered by its trustee, Howard McDougall. Messina Trucking, Inc., a Michigan corporation, was bound by a collective bargaining agreement, under which it was required to make contributions to The Fund on behalf of certain employees. On October 13, 2007, Messina Trucking permanently ceased to have an obligation to contribute to the Fund or permanently ceased all covered operations, thereby effecting a "complete withdrawal," as defined in 29 U.S.C. § 1383. Consequently, on March 28, 2008, the Fund issued an assessment of withdrawal liability to Messina Trucking-and all other trades or businesses under common control with Messina Trucking-in the principal amount of $3,094,989.77, as determined under 29 U.S.C. 1381(b).*fn3

In September 2008, the Messina Control Group initiated arbitration challenging the withdrawal liability, pursuant to 29 U.S.C. § 1401(a). Messina Trucking was unable to pay the full amount of the installments as they became due, and in January 2010, the Fund sent notice to Messina Control Group that its withdrawal liability payments were past due pursuant to 29 U.S.C. § 1399(c)(5)(A) and initiated this action.

A. Messina Control Group

The Messina Control Group consists of Messina Trucking, Inc., Auburn Supply Company, Inc., Utica Equipment Company, and Messina Products, L.L.C. Each company is incorporated in Michigan. On October 13, 2007, at the time of the withdrawal, Stephen Messina and Florence Messina,*fn4 through their respective trusts, owned at least 80% of Messina Trucking, Auburn Supply, Utica, and Messina Products. Stephen is President and Florence is Vice President and Secretary of all of the companies in the Messina Control Group.

Auburn Supply Company owns property across the street from Messina Trucking. The Messinas purchased the property so that Messina Trucking could use it, and it is covered under Messina Trucking's liability insurance. In the past, Auburn also was actively involved in buying and selling aggregate materials. The parties dispute the timing of when these activities stopped, but agree that since they stopped (sometime in 2006 or 2007), Auburn's sole activity has consisted of leasing property to (1) truckers who pay $100 a month to park their trucks and (2) an ice cream shop that pays $625 per month for overflow parking. Auburn also continues to allow Messina Trucking to stockpile sand, top soil, and stone, and to store equipment on the property.

Messina Products, L.L.C.'s operating agreement states in part that "Members have adopted a business plan for the development of properties and for the production, sale and marketing of gravel for road, subdivision, City and community development, both wholesale and retail." Messina Products currently owns a 50% interest in Messina Lombardo, L.L.C. and the parties dispute whether it owns or has owned any land.*fn5

B. Stephen and Florence Messina

Stephen Messina and Florence Messina own at least 80% of Messina Trucking and the rest of the Messina Control Group through their trusts. Stephen purchased property at 6386 Auburn Road in Shelby Township, Michigan in 1963. Messina Trucking, Auburn Supply, and Utica all operate out of the 6383 Auburn property. For years, Messina Trucking paid rent for the use of the property, which Stephen and Florence deposited into their joint personal bank account. In 2005, Messina Trucking stopped paying rent for the use of 6386 Auburn due to lack of funds. While there is not and never has been a written lease for Messina Trucking's use of the property, in practice the Messinas pay the property taxes, Messina Trucking pays for the property insurance and utility bills, and all repairs and maintenance are done by Messina Trucking employees. Auburn and Utica never paid rent for their use of the property.

Stephen Messina also owns two properties located at 45245 Merrill Road and 45041 Merrill Road in Utica, Michigan (the "Merrill Road Properties"). The Messinas used money from their joint bank account to purchase the Merrill Road Properties. Stephen purchased the properties because they were adjacent to the 6386 Auburn property and it allowed him to build an addition onto one of the Auburn Property's existing structures. There also are several homes located on the Merrill Road Properties. The Messinas have leased one of the homes to a series of Messina Trucking employees, pursuant to written residential leases. The second home was also occupied by a tenant pursuant to a lease until she passed away after the withdrawal but before this action was filed. A third home has been leased pursuant to a written lease agreement since October 2002. Either Stephen or his daughter, Anna Messina, negotiates all terms of the residential leases and deposit all rent checks into the personal bank account of Stephen and Florence.

The shop foreman at Messina Trucking, Dennis Campbell, handles all maintenance of the Merrill Road Properties, though he is not paid extra for this work. All expenses incurred through fixing repairs at the Merrill Road Properties are paid by Messina Trucking. ...


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