Brown et al v. Capital Restoration & Painting Co. et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs' Motion for Summary Judgment [Doc. #21] is GRANTED. IT IS FURTHER ORDERED that Plaintiffs will file a Proposed Judgment and Memorandum in accordance with this Memorandum and Order withi n twenty (20) days of this Order. IT IS FURTHER ORDERED that Defendants may file a responsive brief in accordance with this Memorandum and Order within ten (10) days after the submission of Plaintiffs' Proposed Judgment. Signed by District Judge Rodney W. Sippel on 12/2/13. (LAH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Donald BROWN, et al.,
CAPITAL RESTORATION & PAINTING )
CO., et al.,
Case No. 4:13CV00189 RWS
MEMORANDUM AND ORDER
Plaintiffs, trustees of the Local Union No. 1 of Missouri Pension Trust, filed this action
seeking to collect a withdrawal liability assessment under the Multiemployer Pension Act
Amendments Act of 1980, 29 U.S.C. §§ 1381 et seq. The defendants are Gary Sextro and his
corporate alter egos, Capital Restoration and Painting Co., Capitol Restoration Services, Inc, and
Capital R&P Company ("Sextro"). Plaintiffs move for summary judgment. Defendants oppose
summary judgment, and the issues are fully briefed.
For the reasons stated below, I will grant Plaintiffs' motion as to liability, reserving the
question of damages pending further briefing.
Standards Governing Summary Judgment
Summary judgment is appropriate where there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Alabama
v. N. Carolina, 130 S. Ct. 2295, 2308 (2010). Where appropriate, summary judgment avoids
needless and costly litigation and promotes judicial efficiency. Harris v. SWAN, Inc., 459 F.
Supp. 2d 857, 862 (E.D. Mo. 2005). The moving party must initially demonstrate the absence of
an issue for trial. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). Any doubt as to the
existence of a material fact must be resolved in favor of the party opposing the motion. Board of
Education, Island Trees Union Free School District v. Pico, 457 U.S. 853, 863 (1982).
Once a motion is properly made and supported, the non-moving party may not rest upon
the allegations in his pleadings but must instead set forth specific facts showing that there is a
genuine issue of material fact for trial. Fed. R. Civ. P. 56(e); Gibson v. Am. Greetings Corp.,
670 F.3d 844, 853 (8th Cir. 2012). Summary judgment must be granted to the movant if, after
adequate time for discovery, the non-moving party fails to produce any proof to establish an
element essential to the party's case and upon which the party will bear the burden of proof at
trial. Celotex Corporation, 477 U.S. at 322–24. Under these standards I find the following
The Local Union No. 1 of Missouri Pension Trust ("Trust") is a multi-employer pension
plan which provides retirement benefits for employees of contributing employers who are
obligated to make contributions pursuant to a collective bargaining agreement ("CBA").
(Affidavit of Donald Brown, Doc. #22-1, at ¶ 3.) Plaintiffs Donald Brown, Brian Jennewein,
John Finder, John Hopkin, Robert Guinn, Richard Frisch, R. Mike Heitkamp, John J. Smith,
Brian Grant, and David Gillick ("Trustees") are the duly designated and acting trustees of the
Trust. (Complaint at ¶ 3, Answer at ¶ 3.)
Capital Restoration and Painting Company ("Capital") was party to a CBA with the
Bricklayers Local Union No. 1 of Missouri ("Local 1"). The CBA had an effective date of June
1, 2006. (Brown Aff., Doc. #22-1, at ¶2). The CBA required Capital to make contributions to
the Trust on the basis of all hours worked by covered employees. The CBA allowed Local 1 to
suspend the CBA in the event of fringe benefit delinquencies. Id. at ¶3–4. The CBA provides:
"The terms and conditions of this Agreement shall unless otherwise provided, herein commence
on the 1st of June 2006 and continue in effect from and after the date of effectiveness to and
including May 31, 2011 and thereafter from year to year provided neither party gives notice to
the other of its desire to negotiate a new Agreement." (Brown Aff., Doc. #22-1, at ¶6). The
parties dispute whether the CBA was terminated on May 31, 2011 or whether it is still in effect.
(Defs.' Resp. to Pls.' Statement of Undisputed Facts, Doc. #32, at ¶22).
Capital became delinquent in its fringe benefit contributions in 2009. When Capital
failed to pay its delinquent contributions, Local 1 sent a letter, dated August 28, 2009,
suspending the CBA and informing Capital’s bricklayers that they must cease working for
Capital. Id. at ¶5. As a result of the 2009 delinquency, Trustees filed a lawsuit seeking unpaid
fringe benefit contributions. Case No. 4:09CV1130 RWS. On July 30, 2010 the Trustees
obtained a judgment against Capital in the amount of $129,876.84. The judgment covered the
period of January 1, 2007 through December 21, 2009. (Affidavit of Gary Juenger, Doc. #22-8,
at ¶2). On September 2, 2011, I also entered an Order granting Trustees' motion for a creditor’s
bill in equity and to pierce the corporate veil, finding that Capital Restoration and Painting Co.,
Capitol Restoration Services, Inc, and Capital R&P Company were alter egos of Gary Sextro.
Case No. 4:09CV1130 RWS [Doc. #142]. That judgment was satisfied on January 23, 2013.
(Affidavit of Gary Juenger, Doc. #22-8, at ¶4).
On August 27, 2012, Trustees’ counsel sent a withdrawal liability assessment letter by
certified mail to Sextro. Sextro received the letter on August 29, 2012. The assessment letter
reflected that Capital was part of a common controlled group with Capitol Restoration Services
Inc. ("Capitol"), Capital R&P Company ("Capital R&P"), and Sextro. The assessment letter
stated that the Defendants were required to either pay the assessed withdrawal liability in a lump
sum or to begin making quarterly interim payments on or before October 1, 2012. The
assessment letter further notified Sextro that he had the right, within ninety days, to request that
the Trust review its findings regarding withdrawal liability. (Withdrawal Liability Assessment
Letter, Doc. #22-17).1
On September 26, 2012, Sextro wrote former Local 1 Financial Secretary Joseph
Schonlau, indicating that Capital had paid off its debts and therefore was now in good standing.
(Brown Aff., Doc. #22-1, at ¶9.). On October 1, 2012, Brown wrote Sextro, stating that the CBA
between Local 1 and Capital had expired. Id. at ¶10.
Defendants did not make any payments towards the assessment. (Affidavit of Michael A.
Evans, Doc. #22-16, at ¶5). Defendants have not requested arbitration of the withdrawal liability
assessment. Id. at ¶6.
Plaintiffs, as the designated and acting trustees of the Trust, are fiduciaries entitled to
bring this action pursuant to 29 U.S.C. §§ 1002(14)(A); 1401(b)(1); 1451.
Congress has imposed a withdrawal liability on employers who completely withdraw
Defendants denied this statement in their Response to Plaintiffs' Statement of
Undisputed Facts and cited certain documents in the record. However, these documents do not
actually dispute this fact. Moreover, in their opposition, Defendants admit that this notice was
sent. (Defs.' Mem. in Opp. to Pls.' Mot. for Summ. J., Doc. #31, at 3).
from a multiemployer pension fund. 29 U.S.C. §§ 1381(a) and (b), 1383(a), 1391. The
withdrawal liability is calculated according to statutory guidelines. Am. Cleaners & Laundry Co.
Inc. v. Textile Processors, Serv. Trades, Health Care Prof'l & Technical Employees Int'l Union
Local 161, 482 F. Supp. 2d 1103, 1116 (E.D. Mo. 2007). A complete withdrawal occurs when a
contributing employer permanently ceases to have an obligation to contribute to the fund or
permanently ceases all operations covered by the fund. 29 U.S.C. § 1383(a); Seaway Port
Authority of Duluth v. Duluth-Superior ILA Marine Association Restated Pension Plan, 920 F.2d
503, 505 (8th Cir. 1990). The purpose of withdrawal liability is to require the withdrawing
employer to pay its proportionate share of the Trust's unfunded vested benefits. Diffley v.
Prescription Serv., Inc., 4:94 CV 2231 DDN, 1996 WL 742853, at *2 (E.D. Mo. Feb. 13, 1996)
(citing Bowers v. Transportation Maritima Mexicana, S.A., 901 F.2d 258, 261 (2d Cir. 1990)).
If the employer challenges the trustees' withdrawal liability determination, "it still must
pay according to the trustees' schedule in the interim under the statute's 'pay now, dispute later'
collection procedure." Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of
California, Inc., 522 U.S. 192, 197 (1997). These payments are subject to adjustment or
recoupment in the event of subsequent vindication. Chicago Truck Drivers, Helpers &
Warehouse Workers Union (Indep.) Pension Fund v. Bhd. Labor Leasing, 974 F. Supp. 751, 754
(E.D. Mo. 1997).
The Multiemployer Pension Act Amendments Act (MPAA) provides for arbitration of
the fact and amount of withdrawal liability. 29 U.S.C. § 1401, Am. Cleaners & Laundry Co.
Inc., 482 F. Supp. 2d at 1116. This obligation to arbitrate is imposed by statute and does not
arise from an agreement of the parties. Id. To be timely, arbitration must be initiated within 60
days of the earlier of (1) the Trust's response to a request for review, or (2) 120 days of the
request itself. 29 U.S.C. § 1401 (a)(1).
Failure to initiate arbitration in a timely manner constitutes a waiver of any defenses a
withdrawing employer may have concerning the fact and amount of withdrawal liability. Diffley,
1996 WL 742853, at *2; Vaughn v. Sexton, 975 F.2d 498, 502 (8th Cir. 1992). Barring defenses
not initially arbitrated serves the congressional interest in speedy dispute resolution and judicial
economy. Id. at 501. Interpreting failure to arbitrate as a waiver of defenses preserves the
declaration in 29 U.S.C. § 1401 that any dispute related to a determination of withdrawal liability
assessment is to be arbitrated. Id. See also In re Affiliated Foods, Inc., 249 B.R. 770, 785
(Bankr. W.D. Mo. 2000) (Chapter 11 debtors, by failing to request a review of a withdrawal
liability assessed against them by a multiemployer pension plan, and by failing to file notice of
initiation of arbitration, waived their right to contest the amount of their assessed withdrawal
liability); Amalgamated Lithographers of Am. v. Unz & Co. Inc., 670 F. Supp. 2d. 214, 229
(S.D. N.Y. 2009) ("The MPPAA and the cases are clear — if an employer wishes to dispute
anything relating to its assessed liability or payment schedule, it must raise the matter in a timely
If neither party seeks arbitration, the withdrawal liability assessment becomes due
according to the schedule devised by the plan sponsor. The plan sponsor may then sue for
collection of the withdrawal liability as determined under the schedule. Vaughn, 975 F.2d at
501. "The plan sponsor may bring an action in a State or Federal court of competent jurisdiction
for collection." 29 U.S.C. § 1401(b)(1).
Assuming that the CBA was terminated as of May 31, 2011, the Trustees had the right
under the MPAA to assess withdrawal liability as of that date. Sextro permanently ceased having
an obligation to contribute to the Trust on that date because his employees were no longer
represented by Local 1. Seaway Port, 920 F.2d at 505. On August 27, 2012, the Trust notified
Sextro of the amount of his liability, the schedule for payments and demanded payment, pursuant
to 29 U.S.C. § 1399(b)(1). Sextro then had 90 days within which to request review of the Trust's
determination. 29 U.S.C. § 1399(b)(2)(A).
Sextro argues that his September 26, 2012 letter constitutes a request for review under 29
U.S.C. § 1399(b)(2)(A). That section provides that an employer:
(i) may ask the plan sponsor to review any specific matter relating to the
determination of the employer's liability and the schedule of payments,
(ii) may identify any inaccuracy in the determination of the amount of the
unfunded vested benefits allocable to the employer, and
(iii) may furnish any additional relevant information to the plan sponsor.
Sextro's September 26, 2012 letter states, in its entirety:
As I am sure you are aware, our Company has paid off all past due
According to the "temporary termination" as spelled out in your letter of
August 28, 2009, due to non-payment of fringe benefit contributions, we
are now in good standing.
(Doc. #33-4). The letter contains no reference to withdrawal liability, does not identify
an inaccuracy in the calculation of the amount of the unfunded vested benefits allocable to the
employer, and does not directly or indirectly seek a "request for review." Brown's October 1,
2012 letter responded in some detail to Sextro's claim that Defendants were in good standing
with the union. (Doc. #33-5). Therefore, even if Sextro's note constituted a request for a review,
then Brown's October 1, 2012 letter amounted to a notification under U.S.C. § 1399(b)(2)(B) of
the "the plan sponsor's decision, the basis for the decision, and the reason for any change" in the
I need not, however, determine whether or not the September 26, 2012 letter was a
"request for review" under U.S.C. § 1399(b)(2)(A) or whether the Octover 1, 2012 letter was a
notification of the outcome of a "reasonable review" under U.S.C. § 1399(b)(2)(A), because
under any interpretation, the time for arbitration had expired. The statute provides that, if the
employer remains dissatisfied with the Trust's determination, it can initiate arbitration within 60
days after the earlier of: (1) the Trust's response to the employer's request for review, or (2) 120
days after the date of the request itself. 29 U.S.C. § 1401(a)(1). If arbitration is not initiated
within that time period, the amount demanded by the Trust is due. 29 U.S.C. § 1401(b)(1). The
parties may also jointly request arbitration within 180 days of the fund's demand. 29 U.S.C.
In this case, Sextro received the assessment letter on August 29, 2012. The deadline for a
joint request for arbitration would have been 180 days later, on February 25, 2013. If, as Sextro
argues, his September 26, 2012 letter was a request for review, and no reasonable review under
U.S.C. § 1399(b)(2)(A) ensued, the deadline for either party to initiate arbitration would have
been 180 days later, on March 25, 2013.2 If, however, Brown's October 1, 2012 letter constituted
a response under U.S.C. § 1399(b)(2)(B), then the deadline for arbitration would have been 60
days after the October 1 letter, on November 30, 2012.
If the plan sponsor does not respond to the request for review, "[e]ither party may initiate the arbitration
proceeding within a 60-day period after . . . 120 days after the employer's request under section 1399(b)(2)(A) . . . ."
29 U.S.C.A. § 1401. The total number of days to request arbitration in this circumstance is therefore 180.
Under any of these possible deadlines, the time for requesting arbitration has expired.
The Trustees filed suit on January 29, 2013, which may have been prior to the deadline for
requesting arbitration. Whether or not the time for arbitration had expired as of the filing date is,
however, not a bar to summary judgment. The sections of the MPAA that "explicitly provide for
payments pending the arbitrator's decision . . . would appear meaningless if there were no cause
of action to enforce them." United Retail & Wholesale Employees Teamsters Union Local No.
115 Pension Plan v. Yahn & Mc Donnell, Inc., 787 F.2d 128, 133 (3d Cir. 1986). A plan sponsor
may therefore file suit for collection prior to the expiration of time for arbitration. Id.
By failing to make a timely request for arbitration pursuant to 29 U.S.C. § 1401(a)(1),
Sextro waived any right to contest the fact or amount of withdrawal liability. Diffley, 1996 WL
742853, at *2. The dispute about whether or not the CBA was terminated as of May 31, 2011,
resulting in Sextro's withdrawal from the plan, is a dispute about the fact of withdrawal liability.
Any defense based on this argument was waived by Sextro because he failed to initiate timely
arbitration as required by 29 U.S.C. § 1401(a)(1).
Sextro defaulted by failing to make timely payments. Therefore, the Trust is entitled to
collect the entire amount due. Diffley, 1996 WL 742853, at *2. The Trust is entitled to not only
the outstanding amount of the employer's withdrawal liability, but also accrued interest on the
outstanding liability from the due date of the first payment which was not timely made. 29
U.S.C. § 1399(c)(5).
Because there is no genuine issue of material fact and the Trustees are entitled to
judgment as a matter of law, I will grant partial summary judgment on the issue of liability.
Plaintiffs shall file a Proposed Final Judgment setting out the total amount due, including
damages, interest and attorneys' fees, and an accompanying Memorandum in support of the
Proposed Judgment within twenty (20) days of the date of this Order. Defendants may file a
response indicating whether they agree or disagree with the proposed form of judgment or the
calculations within ten (10) days thereafter.
IT IS HEREBY ORDERED that Plaintiffs' Motion for Summary Judgment [Doc. #21]
IT IS FURTHER ORDERED that Plaintiffs will file a Proposed Judgment and
Memorandum in accordance with this Memorandum and Order within twenty (20) days of this
IT IS FURTHER ORDERED that Defendants may file a responsive brief in
accordance with this Memorandum and Order within ten (10) days after the submission of
Plaintiffs' Proposed Judgment.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of December, 2013.
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