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Frank Vetrone, As Trustee of the Cent. v. Holt Companies Inc.

July 11, 2012

FRANK VETRONE, AS TRUSTEE OF THE CENT. NY PAINTERS & ALLIED TRADES DEFINED BENEFIT PENSION FUND, PLAINTIFF,
v.
HOLT COMPANIES INC., F/K/A HOLT PAINTING CO., INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently pending before the Court, in this action filed by Frank Vetrone as Trustee of the Central NY Painters & Allied Trades Defined Benefit Pension Fund ("Plaintiff") against Holt Companies, Inc. ("Defendant") pursuant to the Employee Retirement Income Security Act ("ERISA") as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), is Plaintiff's motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 15.)*fn1 For the reasons set forth below, Plaintiff's motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Plaintiff filed his Complaint in this action on December 3, 2009. (Dkt. No. 1.) Generally, liberally construed, Plaintiff's Complaint asserts the following factual allegations.

Defendant was a party to a collective bargaining agreement that required it to make contributions on behalf of its employees to The Central NY Painters & Allied Trades Defined Benefit Pension Fund ("Pension Fund"). (Id.) Defendant's obligations were set forth in the Third Restated Agreement and Declaration of Trust of the Central New York Painters & Allied Trades Defined Benefit Pension Trust Fund ("Plan"). (Id.) On or about June 30, 2007, Defendant permanently ceased to have an obligation to contribute to the Pension Fund, or ceased all covered operations under the Plan. (Id.) As a result, the Pension Fund determined that Defendant had completely withdrawn from the Plan as described in 29 U.S.C. § 1383(a). (Id.) Pursuant to 29 U.S.C. §§ 1391 et seq., the Pension Fund assessed Defendant's withdrawal liability in the sum of $314,833.54. (Id.) By letter dated September 9, 2008, the Pension Fund notified Defendant that the withdrawal liability was $314,833.54, and stated that he was required to make interim quarterly payments of $19,403.28 until the full amount of the withdrawal liability was satisfied. (Id.) As of the date of the Complaint, however, Plaintiff has failed to make interim payments in accordance with the schedule. (Id.)

Based on these factual allegations, liberally construed,*fn2 Plaintiff's Complaint asserts the following three claims against Defendant arising under the MPPAA, 29 U.S.C. §§ 1381 et seq.:

(1) a claim that Defendant has violated 29 U.S.C. § 1399(c)(2) by failing to pay its withdrawal liability in accordance with the schedule set forth by the Plan (beginning no later than 60 days after the date of the demand), entitling Plaintiff to the interim payments of that withdrawal liability in accordance with the schedule set forth by the Plan; (2) a claim that Defendant has violated 29 U.S.C. § 1399(c)(5) by defaulting on its obligation under 29 U.S.C. § 1399(c)(5) (by failing to make, when due, any payment under 29 U.S.C. § 1399[c][2] within 60 days of being notified in writing of that failure), entitling Plaintiff to the immediate payment of the outstanding amount of its withdrawal liability; and (3) a claim for interest, statutory costs and attorney fees in accordance with 29 U.S.C. § 1132(g). (Id.)*fn3 Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id.)

B. Undisputed Material Facts

From 1999 through about April 30, 2007, Defendant and "Painters District No. 4" (a union affiliated with the International Union of Painters and Allied Trades) were parties to a collective bargaining agreement that required Defendant to make contributions to the Pension Fund on behalf of its employees. (Compare Dkt. No. 15, Part 3 [Plf.'s Rule 7.1 Statement] with Dkt. No. 18 [Defs.' Rule 7.1 Response].) On or about April 30, 2007, Defendant ceased operations as a union painter, ceased to have an obligation to contribute to the Pension Fund, and effected a "complete withdrawal" from the Plan, as that term is defined in 29 U.S.C. § 1399(b).*fn4

(Id.) In May 2007, Defendant ceased paying its contributions to the Pension Fund. (Id.) On or about September 9, 2008, Plaintiff sent Defendant a written notice and demand of withdrawal liability. (Id.) On or about September 10, 2009, Defendant received that written notice and demand. (Id.) The written notice and demand stated as follows, in pertinent part:

A recent audit revealed that your company withdrew from the Plan in the year ending June 30, 2007, and that an employer withdrawal liability in the sum of $314,833.54 has resulted.

Demand is hereby made that you begin repaying the withdrawal liability within 60 days of the date of this letter. Pursuant to ERISA, you are allowed to make 18 quarterly payments of $19,403.28 followed by a final payment of $8,449.69 in order to satisfy your obligation. (Id.)*fn5 However, subsequently, Defendant failed to remit any funds toward the payment of the assessed withdrawal liability. (Id.) In addition, Defendant filed no demand for arbitration to contest the withdrawal assessment pursuant to 29 U.S.C. § 1401(a). (Id.)

Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, as set forth in the parties' Rule 7.1 Statement and Rule 7.1 Response, is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. (Id.)

C. Plaintiffs' Motion for Summary Judgment

Generally, in support of its motion for summary judgment, Plaintiff asserts the following three arguments: (1) because Defendant is required by 29 U.S.C. § 1399(c)(2) to make interim payments according to the schedule set forth in the notice and demand of withdrawal liability of September 9, 2008, but has failed to do so, Defendant owes Plaintiff those payments, at the very least, pursuant to that schedule; (2) indeed, because Defendant has been notified in writing of its failure to pay the aforementioned obligation, but has failed to timely cure that failure, it has defaulted on that obligation pursuant to 29 U.S.C. § 1399(c)(5)(B), triggering the "immediate payment" provision of 29 U.S.C. § 1399(c)(5); and (3) in addition, Plaintiff is entitled to an award of interest and an additional award of interest or liquidated damages, whichever is greater, pursuant to 29 ...


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