Central States, Southeast and Southwest Areas Pension Fund et al v. Bales, Inc. et al

Filing 15

MOTION by Plaintiffs Arthur H. Bunte, Jr, Central States, Southeast and Southwest Areas Pension Fund for judgment by Consent (Attachments: # 1 Exhibit A)(Napoli, Anthony)

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CENTRALSTATES,SOUTHEASTAND
SOUTHWEST AREAS PENSION FUND;
and ARTHUR H. BUNTE. JR., as Trustee,

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Plaintiffs,

Case No. 12 C 3981

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BALES, INC., a Michigan corporation,
f/kla Bales Trucking, Inc.;
H.M. BALES, LLC, a Michigan limited
liability company, d/b/a Bales Excavating;
C & H BALES, CO., LLC, a Michigan limited
liability company, f/kla S.E. Griffith, LLC,
Defendants.

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Honorable Robert W. Gettleman
District Judge

CONSENT JUDGMENT
WHEREAS, Central States, Southeast and Southwest Areas Pension Fund (the
"Pension Fund") and Arthur H. Bunte, Jr., trustee (together with the Pension Fund
collectively referred to as "Central States"), filed their Complaint on May 22, 2012; and
WHEREAS, Defendant, Bales, Inc., f/kla Bales Trucking, Inc. ("Bales, Inc."), was
personally served with a copy of the Complaint and summons on July 12, 2012; and
WHEREAS, Defendant, H.M. Bales, LLC, d/b/a Bales Excavating ("H.M. Bales"),
was personally served with a copy of the Complaint and summons on July 12, 2012; and
WHEREAS, Defendant, C & H Bales, Co., LLC, f/kla S.E. Griffith, LLC (•c & H
Bales") was personally served with a copy of the Complaint and summons on July 12,
2012;and

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WHEREAS, Plaintiffs and Defendants consent and stipulate to the entry of judgment
against Bales, Inc., H.M. Bales, and C & H Bales and in favor of Plaintiffs as set forth
below.
NOW THEREFORE, the parties consent and stipulate to and the Court makes the
following findings of fact and conclusions of law.
JURISDICTION AND VENUE
1.

This is an action under the Employee Retirement Income Security Act of

1974 ("ERISA") as amended by the Multlemployer Pension Plan Amendments Act of 1980
("MPPAA"), 29 U.S.C. § 1001, et seq., for collection of withdrawal liability Incurred by an
employer as a result of a withdrawal from a multiemployer pension plan.
2.

This Court has jurisdiction over this action under 29 U.S.C. §§ 1132(e),

1132(f) and 1451(c).
3.

Venue lies in this Court under 29 U.S.C. §§ 1132(e)(2) and 1451(d), in that

the Pension Fund is administered at its principal place of business in Rosemont, Illinois.
FINDINGS OF FACr
4.

The Pension Fund is a multiemployer pension plan within the meaning of 29

U.S.C. §§ 1002(37) and 1301 (a)(3). The Pension Fund is administered by Arthur H. Bunte,
Jr. and his fellow trustees at 9377 West Higgins Road, Rosemont, Illinois.
5.

Defendant Bales, Inc. Is a corporation organized under the laws of the State

of Michigan.

To the extent certain findings of fact may be deemed to be conclusions of law, they also
shall be considered conclusions of law. Similarly, to the extent matters contained in the
conclusions of law may be deemed findings of fact, they also shall be considered findings
of fact.

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6.

Defendant H.M. Bales Is a limited llabllltycompanyorganized under the laws

of the State of Michigan.
7.

Defendant C & H Bales Is a limited liability company organized under the laws

of the State of Michigan.
8.

On or about November 6, 2010, Howard Bales and Sharon Griffith directly

or indirectly owned at least 80% of the total combined voting power of all classes of
outstanding stock entitled to vote or at least 80% of the total value of outstanding shares
of all classes of stock of Bales, Inc.
9.

On or about November 6, 201 0, Howard Bales and Sharon Griffith directly

or indirectly owned at least 80% of the ownership interest of H.M. Bales.
10.

On or about November 6, 201 0, Howard Bales and Sharon Griffith directly

or indirectly owned at least 80% of the ownership interest of C & H Bales.
11.

On or about November 6, 2010, Bales, Inc., H.M. Bales, and C & H Bales

were a group of trades or businesses under common control (the "Bales Controlled Group")
and therefore constituted a single employer within the meaning of ERISA, 29 U.S.C. §
1301 (b)( 1), and the regulations promulgated thereunder.
12.

The Bales Controlled Group is the "employer" for purposes of the

detenninatlon and assessment of withdrawal liability under Title IV of ERISA.
13.

During all relevant times, Bales, Inc. was bound by collective bargaining

agreements with a local union affiliated with the International Brotherhood of Teamsters
under which Bales, Inc. was required to make contributions to the Pension Fund on behalf
of certain of its employees.

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14.

The Pension Fund determined that on or about November 6, 2010, the Bales

Controlled Group permanently ceased to have an obligation to contribute to the Pension
Fund and/or permanently ceased all covered operations, thereby effecting a "complete
withdrawal• from the Pension Fund within the meaning of 29 U.S.C. § 1383.
15.

As a result of this complete withdrawal, the Bales Controlled Group Incurred

joint and several withdrawal liability to the Pension Fund in the principal amount of
$459,247.28 (the "Withdrawal LiabiiJtt), as determined under 29 U.S.C. § 1381(b).
16.

On or about July 21, 2011, the Bales Controlled Group, through Bales, Inc.,

received a notice and demand for payment of the Withdrawal Liability issued by the
Pension Fund In accordance with 29 U.S.C. §§ 1382(2) and 1399(b)(1). The notice
demanded full payment of the entire amount of the Withdrawal Liability by August 1, 2011,
pursuant to 29 U.S.C. § 1399(c)(5)(B), and Appendix E, § 5(e)(2) of the Pension Fund's
Pension Plan. The amount demanded was $459,247.28, the balance owed at that time on
the Withdrawal Liability.
17.

The Bales Controlled Group did not initiate arbitration pursuant to 29 U.S.C.

§ 1401(a)(1).
18.

The Bales Controlled Group failed to make the required Withdrawal Liability

payment to the Pension Fund.
19.

Under the Pension Fund's Pension Plan, interest on delinquent Withdrawal

Liability payment is computed and charged at an annualized interest rate equal to two
percent (2%) plus the prime interest rate established by JPMorgan Chase Bank, NA for the
fifteenth (15th) day of the month for which interest Is charged.

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20.

The Pension Fund's Pension Plan provides for liquidated damages in the

amount of 20% of the unpaid withdrawal liability payments.
21.

Pursuant to the terms of the Pension Fund's Pension Plan, the Pension Fund

Is entitled to post-judgment interest on the entire judgment balance at an annualized
interest rate equal to two percent (2%) plus the prime Interest rate established by
JPMorgan Chase Bank, NA for the fifteenth (15th) day of the month for which interest is
charged, compounded annually.
CONCLUSIONS OF LAW
22.

On and about November6, 2010, Bales, Inc., H.M. Bales, and C & H Bales

were trades or businesses under common control and therefore constituted a single
employer within the meaning of 29 U.S.C. § 1301(b)(1), and the regulations promulgated
thereunder.
23.

The members of the Bales Controlled Group have failed to make any

payments on the Withdrawal Liability.
24.

Bales, Inc., H.M. Bales, and C & H Bales, as members of the Bales

Controlled Group, are jointly and severally liable for the unpaid Withdrawal Liability. 29
U.S.C. § 1301(b)(1); Cent. States, Se. & Sw. Areas Pension Fund v. Johnson, 991 F.2d
387, 388 (7th Cir. 1993).
25.

Under29 U.S.C. § 1451(b), the failure to makewlthdrawalllabilltypayments

when due is treated In the same manner as a delinquent contribution under 29 U.S.C. §
1145. Cent. States, Se. & Sw. Areas Pension Fund v. Slotky, 956 F.2d 1369, 1377 (7th
Cir. 1992). Pursuant to ERISA, 29 U.S.C. § 1132(g)(2), the Pension Fund is entitled to:
(a)
(b)

the delinquent withdrawal liability payments;
Interest on the delinquent withdrawal liability payments;

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(c)
(d)
(e)

an amount equal to the greater of the Interest or liquidated damages
as provided under the Plan In an amount not in excess of 20 percent
of the delinquent withdrawal liability payments;
reasonable attorney's fees and costs;
and such other relief the Court deems appropriate.

An award of these amounts is mandatory. Cent. States, Se. & Sw. Areas Pension Fund v.

Gerber Truck Serv., 870 F.2d 1148, 1156 (7th Clr. 1989) (en bane).
26.

Pursuant to 29 U.S.C. § 1132(g)(2), Interest on the delinquent withdrawal

liability payment is computed and charged at the rate set by the plan.
27.

Under 29 U.S.C. § 1132(g)(2), the Pension Fund Is entitled to the greater of

interest on the delinquent withdrawal liability or liquidated damages of up to 20% of the
delinquent withdrawal liability as provided under the plan.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
A.

That a judgment is entered against Defendants, Bales, Inc., H.M. Bales, and

C& H Bales.
B.

That Plaintiffs, Central States, Southeast and Southwest Areas Pension

Fund, and Arthur H. Bunte, Jr., trustee, have and recover judgment from and against
Defendants, jointly and severally, in the total amount of$581,122.92. This amount consists
of $459,247.28 in Withdrawal Liability; $27,526.18 in interest on the withdrawal liability
through September 21, 2012; $91,849.461n liquidated damages on the withdrawal liability;
$2,000.00 In attorneys' fees; and $500.00 in costs for prosecuting this suit as allowed
pursuantto 29 U.S.C. §§ 1132(g)(2), 1451(b).
C.

That Plaintiffs are awarded post-judgment interest on the entire judgment

balance at an annualized interest rate equal to two percent (2%) plus the prime interest
rate established by JPMorgan Chase Bank, NA for the fifteenth (15th) day of the month for

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which interest is charged and shall be compounded annually as set forth in the Pension
Fund Trust Agreement.

Enter: - - - - - - - - - - Robert W. Gettleman
United States District Judge

Dated: - - - - - - STIPULATED AND APPROVED:
Central States, Southeast and Southwest
Areas Pension Fund and Arthur H. Bunte, Jr.,

trustee,P~
By;c9"Its: Attorney
Bales, Inc., f/k/a Bales Trucking, Inc.,
H.M. Bales, LLC, d/b/a Bales Excavating, and
C & H Bales, Co., LLC, f/kla S.E. Griffith, LLC,
Defendants
By: Howard Bales

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Its: President

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