May 15, 2013
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND; and ARTHUR H. BUNTE, JR., Trustee, Plaintiffs,
MESSINA TRUCKING, INC., a Michigan corporation, et al., Defendants.
PLAINTIFFS' AGREED MOTION FOR ENTRY OF JUDGMENT ORDER
ROBERT M. DOW, Jr., District Judge.
NOW COME Plaintiffs, Central States, Southeast and Southwest Areas Pension Fund (the "Fund") and Arthur H. Bunte, Jr., trustee (together with the Fund collectively referred to as "Central States"), by and through their undersigned counsel, and hereby submit Plaintiffs' Agreed Motion for Entry of Judgment Order.
In support of this motion, Plaintiffs state as follows:
1. Central States filed this action to collect interim withdrawal liability payments from Defendants 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 .
2. This Court entered a judgment order against some of the Defendants on October 28, 2011. (Dkt. 67.) The judgment was based upon the Court's Memorandum Opinion and Order dated September 27, 2011, which ruled, in part, that: (a) Messina Products, L.L.C. ("Messina Products") was a trade or business under 29 U.S.C. § 1301(b)(1); and (b) Stephen L. Messina and Florence Messina (collectively the "Messinas") were not personally liable for the withdrawal liability at issue because they did not operate an unincorporated trade or business.
3. Following the Court's entry of the judgment order, the parties filed cross-appeals with the United States Court of Appeals for the Seventh Circuit.
4. On February 8, 2013, the Seventh Circuit affirmed the Court's judgment with respect to Messina Products, but reversed and remanded the Court's judgment with respect to its finding that the Messinas were not personally liable for the withdrawal liability at issue.
5. Messina Products and the Messinas have advised Plaintiffs' counsel and the Court that no further proceedings are necessary in this matter and that a final judgment should be entered against them in accordance with the Seventh Circuit's opinion.
6. In light of the Seventh Circuit's opinion, a final judgment order should be entered ordering the Messinas to make the future interim withdrawal liability payments.
7. Additionally, under ERISA, 29 U.S.C. §§ 1132(g)(2) and 1451(b), a plan who prevails in an action to collect withdrawal liability is entitled to the recovery of its attorney's fees and costs. The rule regarding the award of attorney's fees and costs to a plan applies equally to fees and costs incurred on appeal. See Cent. States, Se. & Sw. Areas Pension Fund v. Kroger Co. , 226 F.3d 903, 915 (7th Cir. 2000); Cent. States, Se. & Sw. Areas Pension Fund v. Wintz Properties, Inc. , 155 F.3d 868, 876 (7th Cir. 1998).
8. Here, Plaintiffs have incurred a total of $28, 474.72 in attorney's fees and costs in connection with post-judgment matters and the appeal. Defendants, through their counsel Paul E. Robinson, have agreed to the award of $28, 474.72 in attorney's fees and costs.
9. Defendants have also agreed that the Court should grant this Motion by entering the proposed Judgment Order.
10. A copy of the proposed Judgment Order is attached hereto as Exhibit A and will be submitted electronically to the Court's proposed orders e-mail address.
WHEREFORE, Plaintiffs request that this Court grant this Motion by entering the proposed Judgment Order attached hereto as Exhibit A.
This matter coming before the Court on Plaintiffs' Agreed Motion for Entry of Judgment Order , and the Court having reviewed the Motion, hereby FINDS, ORDERS, and ADJUDGES as follows:
A. That Plaintiffs' Motion is GRANTED.
B. That in addition to the Judgment Order dated October 28, 2011 (Dkt. 67) that was entered by this Court, a second judgment is entered in favor of Plaintiffs and against Defendants, Stephen L. Messina, Florence M. Messina, and Messina Products, L.L.C.
C. That Plaintiffs have and recover judgment from and against Stephen L. Messina, Florence Messina, and Messina Products, L.L.C., jointly and severally, in the total amount of $28, 474.72. This amount consists of Plaintiffs' attorney's fees and costs incurred in connection with the appeal in this matter and which Plaintiffs, as the prevailing parties, are allowed to recover pursuant to ERISA, 29 U.S.C. §§ 1132(g)(2) and 1451(b).
D. That Stephen L. Messina and Florence M. Messina are also ordered to make their future interim withdrawal liability payments to Plaintiffs in accordance with the payment schedule determined by Plaintiffs and attached to the Notice and Demand dated March 27, 2008. Specifically, Stephen L. Messina and Florence M. Messina are ordered to make monthly interim withdrawal liability payments in the amount of $19, 149.16 on the first day of each month with a final payment of $19, 149.16 due on April 1, 2028.
E. Plaintiffs are further awarded post-judgment interest on the amounts awarded by this Order at an at an annualized interest rate equal to two percent (2%) plus the prime interest rate established by JPMorgan Chase Bank, NA for the fifteenth (15th) day of the month for which interest is charged, compounded annually.