UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 25, 2011
PRAIRIE CAPITAL II, L.P., PLAINTIFF,
THE HOLLOW METAL PENSION FUND, RESPONDENT.
The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The plaintiff, Prairie Capital II, L.P. ("Prairie Capital") moves for summary judgment on Count IV of its complaint to the extent that it asks the Court to find as a matter of law that the claims in Counts I and II of the complaint should be decided by the Court and not by an arbitrator. Those claims in turn seek a declaration that Prairie Capital is not subject to control group liability for withdrawal liability from the Multiemployer Pension Plan (the "Plan"), which has been imposed on Goldsmith LLC. Counts I and II should be decided by the Court and not the arbitrator because they concern whether the plaintiff is an employer for purposes of a multiemployer pension plan. See, e.g., New York State Teamsters Conference Pension & Retirement Fund v. Express Servs. Inc., 426 F.3d 640, 645-47 (2d Cir. 2005); Galgay v. Beaverbrook Coal Co., 105 F.3d 137, 141-42 (3d Cir. 1997). It is also true that the specific issue for which Prairie Capital seeks a determination by the Court rather
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