The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
Plaintiffs ILGWU National Retirement Fund ("Fund") and two of
its trustees move for summary judgment pursuant to Federal Rule
of Civil Procedure 56 on its claim against defendant Smart
Modes of Ca., Inc d/b/a Madison 7 ("Smart Modes") for
withdrawal liability allegedly due under the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001
et seq., as amended by the Multiemployer Pension Plan
Amendments Act of 1980 ("MPPAA"), 29 U.S.C. § 1381, et seq.,
plus interest, liquidated damages, attorneys fees and costs.
The Fund is a multiemployer pension plan within the meaning of
29 U.S.C. § 1002(2) and (37).
The withdrawal liability provisions of ERISA were amended by
MPPAA in 1980. Under MPPAA, an employer who withdraws from a
multiemployer plan, with certain exceptions not relevant here,
is assessed withdrawal liability, such that the employer is
required to continue funding its proportionate share of the
plan's unfunded vested benefits. 29 U.S.C. § 1381, 1391. An
employer completely withdraws from a plan when it either
permanently ceases to have an obligation to contribute to the
plan, or permanently ceases all covered operations under the
plan. 29 U.S.C. § 1383. Withdrawal liability may also be
imposed for partial withdrawals. 29 U.S.C. § 1381, 1385.
When an employer withdraws from a multiemployer plan, the
plan sponsor must calculate the amount of withdrawal liability
owed, give notice to the employer of the amount and demand
payment. 29 U.S.C. § 1382. Section 1399 provides that the plan
sponsor must notify an employer of the amount of its withdrawal
liability and the schedule of payments "[a]s soon as
practicable after an employer's complete or partial
withdrawal." 29 U.S.C. § 1399(b)(1). The employer then has 90
days to ask the plan sponsor to review "any specific matter
relating to the determination of the employer's liability and
the schedule of payments." 29 U.S.C. § 1399(b)(2)(A)(i).
Notwithstanding any request for review or demand for
arbitration, withdrawal liability is payable in accordance with
the schedule of payments established by the plan sponsor
beginning no later than 60 days after the date of demand,
29 U.S.C. § 1399(c)(2). Upon default, the plan sponsor may require
immediate payment of the outstanding amount of withdrawal
liability, plus accrued interest, 29 U.S.C. § 1399(c)(5).
MPPAA requires that "[a]ny dispute between an employer and
the plan sponsor of a multiemployer plan concerning a
determination made under sections 1381 through 1399 of this
title shall be resolved through arbitration."
29 U.S.C. § 1401(a)(1). Arbitration may be initiated within 60 days after
the earlier of (1) the date the employer is notified of the
plan's decision upon review, or (2) 120 days after the date the
employer requests such a review. Id. If no arbitration
proceeding is initiated, the plan sponsor may bring an action
in state or federal court to collect the amount due and owing,
29 U.S.C. § 1401(b)(1), 1451(a), including liquidated damages,
interest, costs and attorneys fees. 29 U.S.C. § 1451.
It is undisputed that Smart Modes resigned from the
Association in 1978, that the collective bargaining agreement
to which it was a party at that time terminated on May 31,
1979, and that, by 1979, Smart Modes had ceased all
manufacturing operations. It is also undisputed, however, that
the Fund continued to receive contributions from or on behalf
of defendant through 1982. See Reply Affidavit of Sanford S.
Stevens at ¶ 4.
By letter dated August 17, 1987, and addressed to Jules
Reinis at his apartment in Los Angeles, the Fund notified
defendant that the Fund had determined that Smart Modes had
completely withdrawn from the Fund as of 1982, informed it that
the Fund had calculated its withdrawal liability to be
$150,671, set forth a payment schedule, demanded payment of the
first payment, and notified it of its right to ask for review
of the calculation and its right to seek arbitration. Mr.
Reinis admits receiving the August 17, 1987 letter.
On October 30, 1987 the Fund gave written notice to Smart
Modes that it had failed to make the required payment set forth
in the August 17, 1987 letter. Smart Modes never responded to
the August 17 or October 30 notices in any manner. Smart Modes
never sought review by the Fund or through arbitration, and
failed to make any of the scheduled payments.
On May 6, 1988, the Fund commenced the present action, and
served the summons and complaint on Jules Reinis on May 9,
1988. The defendants answered on July 22, 1988, and some
discovery has been completed.
Summary judgment is appropriate where there is "no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a
motion for summary judgment, the "fundamental maxim" is that
the court "`cannot try issues of fact; it can only determine
whether there are issues to be tried.'" Donahue v. Windsor
Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987)
(quoting Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317,
1319-20 (2d Cir. 1975)). "Moreover, in determining whether a
genuine issue has been raised, a court must resolve all
ambiguities and draw all reasonable inferences against the
moving party." Id. at 57.
In opposition to plaintiffs' motion, defendant does not raise
genuine issues of material fact, but contends that plaintiffs'
action is barred by the statute of limitations or the doctrine
of laches, that it was not an employer on the effective date of
MPPAA, and ...