The opinion of the court was delivered by: GREEN
This is an action on behalf of the United Mine Workers of America 1974 Pension Plan ("1974 Plan") to collect withdrawal liability, interest, and liquidated damages under the Employee Retirement Income Security Act of 1974 ("ERISA") as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), 29 U.S.C. §§ 1001 et seq. (1982).
Defendants Darryll Waggle Construction, Inc. ("DWC") and Darryll Waggle ("Waggle") have filed a motion to dismiss the complaint. For the reasons set forth below, the Court grants defendants' motion in part and denies it in part.
Plaintiffs are trustees of the 1974 Plan, which is a multiemployer pension plan within the meaning of sections 1002(37) and 1301(a)(3). DWC is an Illinois corporation that is or was engaged in mine related construction at sites in Illinois. Waggle is a citizen of Colorado and is or was an officer and shareholder of DWC.
DWC was a party to the National Coal Mine Construction Agreements of 1974, 1978, and 1981. Pursuant to those agreements, DWC was obligated to and did make contributions to the 1974 Plan. Plaintiffs allege that DWC ceased covered operations under the 1974 Plan about October 1980. As a result of this cessation, DWC withdrew from the 1974 Plan in a complete withdrawal, as that term is defined in Section 1383(a). Verified Complaint paras. 7, 8.
DWC was involuntarily dissolved on December 1, 1981, by the Secretary of State of Illinois for failure to pay annual franchise taxes. Following this event, a joint special meeting of the shareholders and directors of DWC was held on June 4, 1982. At this meeting a plan for complete liquidation of DWC was adopted which was to be completed not later than June 24, 1983.
Plaintiffs attempted unsuccessfully on three occasions in 1983 to notify DWC of the amount of its withdrawal liability and schedule of payments and to demand payment consistent therewith, pursuant to section 1399(b)(1). Finally, by letter dated August 17, 1983, sent by certified mail to DWC at an address for individual defendant Waggle in Colorado, plaintiffs were able to notify DWC of its liability to the 1974 Plan in accordance with section 1399(b)(1).
By letter dated October 10, 1983, a representative of DWC informed plaintiffs that DWC had been involuntarily dissolved and that there were no existing assets. In addition, DWC's representative requested review of the withdrawal liability determination, pursuant to section 1399(b)(2)(A). Upon review, plaintiffs decided against changing their withdrawal liability determination or schedule of payments and so notified DWC on May 10, 1983, pursuant to section 1399(b)(2)(B).
DWC failed to initiate arbitration of plaintiffs' decision on review and failed to make any withdrawal liability payments as required by sections 1399(c)(2) and 1401(a)(1). Plaintiffs then advised DWC that the payments were past due and if DWC failed to cure the delinquency, it would be in default and the entire amount of its withdrawal liability would be due and payable without further demand, pursuant to section 1399(c)(5). Plaintiffs filed the instant suit on July 22, 1985.
A. Action Against DWC Is Not Barred by the Illinois Corporate Survival Statute
Section 94 of the Illinois Business Corporation Act states, in pertinent part, that:
The dissolution of a corporation . . . by the issuance of a certificate of dissolution by the Secretary of State, . . . shall not take away or impair any remedy available to or against such corporation, its directors, officers, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution, if action or other proceeding thereon is commenced within two years after the date of such dissolution.
Ill. Ann. Stat. Ch. 32, § 157.94 (1975).
Defendants contend that plaintiffs are barred from bringing this suit because they did not file any "action or other proceeding" until July 22, 1985, over three and one-half years after DWC had been dissolved. While it is true that this lawsuit was filed well after the statutory survival period had expired, the Court finds ...