United States District Court, N.D. Illinois, Eastern Division
LABORERS' PENSION FUND and JAMES S. JORGENSEN, Administrator of the Fund, Plaintiffs,
W.R. WEIS COMPANY, INC., STONE SYSTEMS, INC., and MICHIGAN CORP., Defendants.
MEMORANDUM OPINION AND ORDER
JOAN B. GOTTSCHALL, District Judge.
Plaintiff Laborers' Pension Fund and its administrator, James Jorgensen (collectively, "the Fund"), filed this action under the Employee Retirement Income Security Act ("ERISA"), as amended by the Multiemployer Pension Plan Amendment Acts of 1980 ("MPPAA"). The Fund seeks to collect liability incurred when defendant W.R. Weis, Inc. ("Weis") withdrew from the Fund. The Fund's motion for summary judgment is before the court. For the following reasons, the motion is granted.
A. Local Rule 56.1
Local Rule 56.1(a)(3) requires a party moving for summary judgment to submit "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law." Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (citing L.R. 56.1(a)(3)). Under Local Rule 56.1(b)(3), the nonmoving party then must submit a "concise response" to each statement of fact, "including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B). The nonmoving party may also present a separate statement of additional facts that requires the denial of summary judgment. See L.R. 56.1(b)(3)(C); see also Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).
"When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by [Local Rule 56.1], those facts are deemed admitted for purposes of the [summary judgment] motion." Cracco, 559 F.3d at 632. Weis did not response to the Fund's Rule 56.1 statement. As the facts in the Fund's statement are supported by the record, they are deemed admitted. The court also notes that to the extent that any additional facts in Weis' response to the motion for summary judgment differ from facts in the Fund's 56.1 statement, it will not consider those facts as Weis did not submit them in the format required by Local Rule 56.1. This does not affect the result, as Weis concedes that the material facts as stated by the Fund are undisputed, and it appears that any discrepancies (such as dates) are merely scrivener's errors. With that said, the court turns to the facts.
The Fund is a non-profit, multiemployer pension plan. Plaintiff James Jorgensen is the Fund's administrator. Weis was bound by a collective bargaining agreement with the Laborers' International Union of North America, under which Weis was required to make contributions to the Fund on behalf of certain of its employees. On or about September 20, 2012, Weis, through its attorney, terminated its agreement with the Union, effective December 9, 2012. The Fund's Trustees determined that Weis effected a "complete withdrawal" from the Fund. See 29 U.S.C. § 1383(b). As a result of this withdrawal, Weis incurred withdrawal liability to the Fund. See 29 U.S.C. § 1381(b).
The Fund sent Weis a letter dated December 18, 2012 ("Initial Notice and Demand") asserting that Weis owed withdrawal liability to the Fund and demanding payment. The Initial Notice and Demand estimated that Weis owed $488, 780.33 and advised Weis that it could pay in a lump sum or in twelve quarterly installments of $43, 620.25, with a final quarterly installment of $19, 387.33 and with the first installment due by January 25, 2013. Weis paid two withdrawal liability installments of $43, 620.25 to the Fund on January 25, 2013 and April 25, 2013.
In March 2013, Weis asked the Fund to review its withdrawal liability determination. The Fund did so and concluded that Weis had withdrawn in the plan year ending May 31, 2010, rather than the plan year ending May 31, 2013, as the Fund had originally thought. Thus, the Fund sent Weis a letter dated August 9, 2013 ("Revised Notice and Demand") with a revised withdrawal liability determination. The Revised Notice and Demand stated that due to the adjusted date of Weis' withdrawal, Weis owed a total of $619, 209 in withdrawal liability. The Revised Notice and Demand also advised Weis that it could pay this amount by making a series of quarterly installments of $85, 780 plus a final installment of $39, 456. In addition, it notified Weis that its third withdrawal liability installment would be due on August 25, 2013, as opposed to the previously scheduled due date of July 25, 2013.
The Revised Notice and Demand instructed Weis that, by August 25, 2013, it was required to remit a total payment of $170, 099.50. This amount was comprised of the revised installment payments plus the difference between the two $43, 620.25 installments that Weis previously remitted and the revised installment amount of $85, 780. The Revised Notice and Demand contained the following payment schedule:
Due Date Payment Amount 8/25/13 $170, 099.50 (representing the unremitted differences in the three installments due 1/25-7/25/2013) 10/25/13 $85, 780 1/25/14 $85, 780 4/25/14 $85, 780 7/25/14 $85, 780 10/25/14 $39, 456
(Dkt. 30-1, Revised Notice and Demand, at 2.) To date, the only withdrawal liability payments that Weis has made are the two installments of $43, 620.25 ...