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August 12, 1986

I.A.M. National Pension Fund Plan A, A Benefits, et al., Plaintiffs and Counterdefendants,
Cullman Industries, Inc., Defendant and Counterclaimant

Opinion Of Charles R. Richey, United States District Judge.

The opinion of the court was delivered by: RICHEY


 The Court has before it plaintiffs' Motion for Summary Judgment, defendant's Opposition thereto, and plaintiffs' Reply. In addition, the Court has defendant's Motion to Defer Ruling on the Motion for Summary Judgment and plaintiffs' Opposition thereto. Plaintiffs have filed suit to collect withdrawal liability payments owed under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq., as amended by, the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), 29 U.S.C. §§ 1381 et seq. For the reasons set forth below, the Court finds that defendant's Motion to Defer Ruling must be denied. Furthermore, the Court finds that there is no genuine issue of material fact and that the plaintiffs are entitled to judgment as a matter of law. Thus, plaintiffs' Motion for Summary Judgment must be granted.


 The following material facts are uncontroverted. Plaintiffs are the I.A.M. National Pension Fund, Plan A, A Benefits ("the Plan"), the Co-Chairpersons of the Board of Trustees of the Plan, and the Board of Trustees. The Plan is a multiemployer pension plan as defined in 29 U.S.C. § 1002(37). Defendant Cullman Industries, Inc., an Illinois corporation, was required to contribute to the Plan under Article XI, Section 11.4. of the collective bargaining agreement with the International Association of Machinists and Aerospace Workers. Verified Statement of Alan Skolnick at para. 4; Collective Bargaining Agreement, Plaintiffs' Exhibit A at 14.

 Cullman Industries ceased operation on December 21, 1984. Affidavit of Robert W. Singer at para. 2. On February 18, 1985, Cullman confirmed, by letter, its earlier telephone conversation notifying the Plan that it had ceased operation and that the final pension plan remittance report would reflect a payroll date of February 1, 1985. Singer Affidavit at para. 3; Skolnick Statement at para. 5; Letter of February 18, 1985, Plaintiffs' Exhibit B.

 On October 22, 1985, the Plan Director, Alan Skolnick, notified Cullman that it owed the Plan withdrawal liability payments of $ 48,612.00 and established a quarterly payment schedule beginning on December 21, 1985. Skolnick Statement at para. 5; Plaintiffs' Exhibit C. Cullman did not make the payment due on December 21, 1985, and Mr. Skolnick notified Cullman of its failure to pay two days later. Skolnick Statement at para. 7; Plaintiffs' Exhibit D. Defendant Cullman failed to make any payments during the next sixty days after which time Mr. Skolnick informed Cullman by letter dated February 26, 1986 that it was in default and the total amount owed was now due pursuant to 29 U.S.C. § 1399(c)(5)(A). Skolnick Statement at para. 7; Plaintiffs' Exhibit E.

 In March, 1986, plaintiff conducted an audit of defendant's books and records. On April 11, 1986, Robert Singer, Secretary of Cullman Industries, wrote to plaintiffs' accountant inquiring as to the amount of a possible overpayment by defendant to the Plan. Singer Affidavit at para. 5. In June, 1986, plaintiffs' attorney informed defendant's counsel by letter and through his Reply to defendant's Opposition to this Summary Judgment Motion that there was no outstanding overpayment but rather defendant had under-reported hours, and thus, it owed the Plan an additional $ 57.30. Declaration of Robert T. Osgood at para. 2; Plaintiffs' Exhibit A.

 Defendant has not paid any of the withdrawal liability. Nor has it requested that the Plan's Board of Trustees conduct a statutory review of the amount of withdrawal liability assessed. Moreover, defendant did not initiate arbitration proceedings with respect to the amount owed. Skolnick Statement at para. 8.

 Plaintiffs filed this action in federal court on March 21, 1986. They request (1) $ 48,612.00 withdrawal liability; (2) interest from December 21, 1985, the date of the first installment, pursuant to 29 U.S.C. § 1399(c)(5); (3) interest thereon or liquidated damages in accordance with 29 U.S.C. § 1132(g)(2)(C), whichever is greater; and (4) reasonable costs and attorneys' fees pursuant to 29 U.S.C. § 1132(g)(2)(D) & 1451(e). Defendant filed a counterclaim for the amount of any overpayment into the fund.


 The Court cannot agree with defendant's position that it " may wish to defer ruling on the summary judgment motion until . . . basic discovery . . . is completed." Defendant's Motion to Defer Ruling on the Motion for Summary Judgment at 1 (emphasis added). It is clear that all material facts necessary for a ruling on the summary judgment motion are currently before the Court, and the motion is ripe for adjudication. In this case, the Court's deciding, rather than postponing, the motion is appropriate and proper.

 This term the Supreme Court in Anderson v. Liberty Lobby, 477 U.S. 242, 54 U.S.L.W. 4755, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), opined that "[the summary judgment] standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. 54 U.S.L.W. at 4757 (emphasis in original). Here, defendant claims that the parties are examining each other's records and scheduling depositions regarding a dispute over Cullman's possible overpayment to the Plan. However, plaintiff points out, this question is not a material issue in this case. The Court agrees with plaintiff.

 "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. . . . It is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. Here the governing law is found in the MPPAA provisions of the ERISA statute. Under its provisions, as explained in detail below, an employer, such as Cullman, must follow the procedure specified in the statute in order to dispute the amount of withdrawal liability owed to the Plan. See 29 U.S.C. §§ 1399(b)(2)(A) & 1401. If the employer fails to follow the statutory procedure, the entire amount demanded by the Plan's sponsors is due and owing. 29 U.S.C. § 1401(b)(1). Thus, the material facts in this case focus on whether defendant properly disputed the amount of its withdrawal liability. Other factual ...

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