is not subject to liability under the MPPAA's withdrawal liability provisions. Peles Company finally claims that the Plans never determined and provided notice of withdrawal liability to Peles Company pursuant to 29 U.S.C. §§ 1381 and 1382.
Plaintiffs respond that under Treasury regulations 26 C.F.R. § 11.414(c)-1 et seq., Peles Corp. and Peles Company constitute a "brother-sister group" of "trades or businesses under common control" and accordingly are treated as a single employer for purposes of withdrawal liability (and notice thereof) under 29 U.S.C. § 1301(b)(1) and regulations promulgated thereunder at 29 C.F.R. Part 2612. Plaintiffs also argue that Peles Company, like Peles, had actual notice of the withdrawal liability determination as notice was provided to Peles as the President of Peles Corp.
Although plaintiffs' claim against Peles Company may not prevail at the summary judgment stage, the allegations of the complaint are sufficient to withstand the motion to dismiss. Dismissal for failure to state a claim is not appropriate unless it is clear that no relief could be granted under any set of circumstances that could be proved consistent with the complaint. Ammerman v. Miller, 139 U.S. App. D.C. 188, 432 F.2d 621, 626 (D.C.Cir.1970). The better developed record that will be available to the Court in the context of a summary judgment motion will permit decision as to whether plaintiffs' arguments as to notice and "common control" should be countenanced. Accordingly, the accompanying order will deny Peles Company's motion to dismiss.
Defendant Peles moves the Court for an order quashing service of process on him and dismissing the complaint for want of jurisdiction over his person. Peles claims that the definition of "employer" found in 29 U.S.C. § 1002(5),
upon which plaintiffs rely for their claim against Peles, is applicable to Title I of ERISA and is broader than the definition of "employer" applicable in withdrawal liability actions under Title IV. Peles also claims, as did Peles Company, that plaintiffs failed to satisfy notice and demand requirements with respect to him (as opposed to Peles Corp.). Peles finally argues that service of process upon him is not authorized under 29 U.S.C. § 1451(d)
as Peles is not an "employer" (and thus not properly a defendant) for purposes of ERISA's withdrawal liability provisions.
Plaintiffs persuasively respond that, given the provisions of 29 U.S.C. § 1451(d), Peles' motion to quash service of process and dismiss for want of personal jurisdiction over him should not succeed unless he is improperly named as an "employer" and defendant (i.e., unless he would succeed on a Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted). Plaintiffs argue that even if Peles' motion were treated as one under Rule 12(b)(6), it must fail as the complaint states "a valid claim against Peles, individually, by virtue of his status as sole proprietor of [Peles Company] and of his status as controlling stockholder, officer, and decision-maker of [Peles Corp.] with respect to the Plans." Memorandum of Points and Authorities in Opposition to Motion of Joseph Peles, Individually, to Quash Service of Process and to Dismiss for Want of In Personam Jurisdiction at 9 (filed October 4, 1985). Plaintiffs contend that Peles is properly deemed an "employer" and named individually as defendant for purposes of withdrawal liability, as Congress incorporated Title I's provisions (including the definition of "employer") into the withdrawal liability provisions of Title IV.
Once again (and treating the motion as one to dismiss for failure to state a claim), resolution on this issue must await fuller development of the factual record. While it seems likely that this issue (as those discussed above) may be resolved on motion for summary judgment, the allegations of the complaint suffice to withstand the motion to dismiss.
The issues as to adequacy of notice and demand are also more appropriately joined in a summary judgment motion, where affidavits and depositions may reveal that there is no genuine dispute as to any material fact. For these reasons, the accompanying order will also deny the motion to quash service of process and dismiss for want of personal jurisdiction.