purposes. After the Court determines that defendants were part of a "controlled group" at some point prior to the withdrawal, the inquiry is complete. Whether the "controlled group" continued until the date of withdrawal and whether defendants tried to "evade or avoid" would have been factual matters for an arbitrator, had arbitration been initiated. The Court does not rule on the merits of such claims at all. Third, defendants argue that a genuine issue of fact exists with respect to whether a "withdrawal" by Canny Trucking ever occurred. Once more, such an argument does not address the three prongs of the MPPAA test. Whether Canny Trucking actually withdrew is a factual issue that should have been arbitrated.
With those questions eliminated, the Court now turns to issues raised by defendants that have not previously been addressed. Defendants argue that a genuine factual dispute exists whether plaintiff has ever made any "determinations" to be arbitrated as required by statute. See 29 U.S.C. 1401(a)(1). The Court responds initially by noting that this argument does not address the three prongs of the MPPAA test and is a factual issue for an arbitrator. Notwithstanding that fact, defendants too narrowly define the term "determination." Based on the Court's reading of MPPAA, review in arbitration is for all factual matters relating to a determination of liability, not relating to each and every determination leading up to an ultimate determination of liability. Plaintiff clearly has made a determination of liability.
MPPAA is clear regarding the content of the notice given to defendants in a withdrawal liability situation, and as the Court has previously stated, plaintiff's notice satisfied the statute. 29 U.S.C. § 1399(b)(1). At no point does the MPPAA require more specific determinations in writing, as defendants apparently argue. According to the Supreme Court, the plan sponsor acts only in an enforcement capacity. The notice requirements of 29 U.S.C. § 1399(b)(1) "bear the hallmarks of an assessment, not an adjudication." Concrete Pipe, 113 S. Ct. at 2278. Because the sponsor is not required to adjudicate disputes, examine witnesses, or even "hold a hearing," it certainly is not required to put more in writing than the statute requires. Id.
Defendants' final arguments relate to the statute of limitations and to whether the arbitration requirement was stayed pending determination of defendants' motion to dismiss. First, to counter plaintiff's claim that service of the original Complaint upon defendants should constitute sufficient notice, defendants argue that service of the Complaint took place after the time limit set forth in 29 U.S.C. § 1451(f). That section dictates that a civil action to collect a withdrawal liability assessment, in the absence of claims of fraud, must be brought within six years after the date on which the cause of action arose. Defendants argue that the deadline should be six years from the date of the alleged withdrawal by the employer, or sometime prior to December 31, 1993.
Defendants analysis of the law on this issue is misguided. In withdrawal liability cases, the cause of action does not arise on the date of withdrawal by the employer. Rather, it arises on the date the employer fails to make a withdrawal liability payment as demanded by the plan sponsor. Joyce, 871 F.2d at 1121-22. By necessity, therefore, the statutory notice of withdrawal liability given to the employer by the plan sponsor can never be time-barred under 29 U.S.C. § 1451(f). Because defendants did not fail to make their first payment until 60 days after their initial notice of the assessment, in June, 1994, § 1451(f) actually does not come into play until June of the year 2000.
The Court realizes that defendants arguably could raise a claim of laches based on 29 U.S.C. § 1399(b)(1), which provides that a plan sponsor must notify the employer of the assessment "as soon as practicable" after the employer's withdrawal. However, defendants have not raised the issue. Were it relevant, the Court finds that a laches argument would not be successful, even if plaintiff could have notified defendants prior to the original Complaint. In light of "the complexity of the tasks imposed on the [plan sponsor] under the statute and Congress' clear intent to help plans collect withdrawal liability," a six-year delay is not so unreasonable as to support a defense of laches. See Levy Bros. Frocks, 846 F.2d at 879 (emphasis in original).
Furthermore, no prejudice to defendants resulted from the delay in notice. No interest accrued on the liability until defendants received the notice. See Brentwood Fin. Corp. v. Western Conf. of Teamsters Pension Trust Fund, 902 F.2d 1456, 1460 (9th Cir. 1990).
Defendants also urge that given the time defendants were waiting for the Court to determine their motion to dismiss, the MPPAA arbitration time limit should have been tolled such that their request for arbitration was timely. The relevant MPPAA sections contain no tolling provision, but the time limit is in fact subject to equitable tolling. Bowers, 901 F.2d at 264. The equitable tolling doctrine calls for the court to extend the statute of limitations beyond the time of expiration. Id. But in order to warrant equitable tolling, the employer in a withdrawal liability case must move decisively to present the issue in court within the statutory time period for arbitration. The employer can accomplish this task in several ways, such as by seeking a declaratory judgment that it is not really an MPPAA "employer" at all. See Flying Tiger, 830 F.2d at 1249. Even when the plan sponsor is the first to file suit, the arbitration time limit will be tolled if the employer raises the arbitration issue immediately and moves for a stay of arbitration. The employer must not, however, wait until the fund files a collection against it, "and then for the first time [try] to assert its defenses in court when it should have proceeded in arbitration." Bowers, 901 F.2d at 264. Because they have rested on their rights in such a manner here, the Court finds that defendants are not entitled to equitable tolling.
Plaintiff has met its burden under Fed. R. Civ. P. 56 by demonstrating that no genuine issue of material fact exists in this case. Defendants were an "employer" under the MPPAA, they were notified of a withdrawal liability assessment against their interests, and they failed to pay interim installments and initiate arbitration within the time required. Defendants should have sought arbitration immediately, or at least moved immediately for a stay of arbitration. The result may seem harsh, but the harshness of the default is largely "a self-inflicted wound." Levy Bros. Frocks, 846 F.2d at 887.
C. MOTION TO REMAND AND RULE 12(e) & (f) MOTION
Because the Court will grant plaintiff's motion for summary judgment, the Court finds that defendants' motions (1) to remand this matter for arbitration and to stay the proceedings until arbitration is complete and (2) for a more definitive statement and to strike pursuant to Fed.R.Civ.P. 12 are denied as moot.
For all the foregoing reasons defendants' motion to dismiss is denied, and summary judgment is granted in its entirety in favor of plaintiff and against defendants. Pursuant to 29 U.S.C. §§ 1401(b)(1) and 1132(g)(2), plaintiff Board of Trustees of Trucking Employees of North Jersey Welfare Fund is awarded a final judgment against the Canny Family Partnership and against defendants William Canny, Joseph Canny, Barbara Briggs, and Dorothy Conlon jointly and severally, in the principal amount of a withdrawal liability assessment of $ 1,221,191.00; accrued interest on the unpaid principal from and after June 7, 1994, through August 25, 1995, of $ 148,549.00;
statutory liquidated damages of $ 244,238.00;
and reasonable attorneys' fees and costs.
The relief sought by plaintiff is hereby GRANTED.
IT IS SO ORDERED
September 9, 1995
Binghamton, New York
HON. THOMAS McAVOY
Chief U.S. District Judge