Trustees of The National Retirement Fund, v. Le Perigord, Inc.

Filing 34

OPINION & ORDER re: 28 MOTION for Summary Judgment Le Perigord, Inc. d/b/a Le Perigord Restaurant. filed by Trustees of The National Retirement Fund,. For the foregoing reasons, Plaintiffs' motion for summary judgment is GRANTE D. The Court respectfully directs the Clerk to terminate the motion at ECF No. 28. Plaintiffs are directed to submit a proposed judgment, along with a detailed affidavit on the issue of reasonable attorney's fees, to the Court within 14 days of this Order. Defendants are directed to submit any objections to the proposed judgment and request for attorney's fees within 10 days of its submission to the Court. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 4/9/2018) (rj)

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TRUSTEES OF THE NATIONAL RETIREMENT
FUND,
Plaintiffs,
No. 16-cv-06921 (NSR)

-againstLE PERIGORD, INC. d/b/a LE PERIGORD
RESTAURANT and JOHN DOES 1-10 (all other
trade or businesses under common control with LE
PERIGORD, INC. d/b/a LE PERIGORD
RESTAURANT),

OPINION & ORDER

Defendants.

NELSONS. ROMAN, United States District Judge:
Plaintiff Trustees of the National Retirement Fund ("Plaintiff' or the "Fund") filed the
instant action against Defendants Le Perigord, Inc. d/b/a Le Perigord Restaurant Inc. and John
Does 1-10 (collectively, "Le Perigord" or "Defendants") alleging that Defendants' actions
triggered withdrawal liability under the Employee Retirement Income Security Act ("ERISA"),
as amended by the Multi employer Pension Plan Amendments Act of 1980 ("MPPAA"), resulting
in $1,757,369.00 being due to the Fund. Before the Court is Plaintiffs motion for summary
judgment. Defendants do not oppose the motion. For the following reasons, Plaintiffs motion is
GRANTED.

BACKGROUND
Le Perigord, a restaurant, was a patty to a collective bargaining agreement with the
UNITE HERE Local I 00 (the "Union"). (Plaintiffs Rule 56.1 Statement, ECF No. 29, ("Pis.'
56.1 "), ~~ 2, 4.) Pursuant to the collective bargaining agreement, Le Perigord was required to
make contributions to the Fund, which sponsors a multi-employer pension plan (the "Plan"), of

which the Union was a member. (Id ,i 4.) In the event that an employer withdraws from the
Plan, the MPPAA provides for the Fund to collect withdrawal liability from the employer. (Id. ,i
3.)

Le Perigord made the required contributions to the Fund under the collective bargaining
agreement through and including August 31, 2015. (Id. ,i 4.) On or about August 31, 2015, Le
Perigord permanently ceased to have an obligation to contribute to the Fund, resulting in a
complete withdrawal from the Plan and the incunence of withdrawal liability within the meaning
of29 U.S.C. § 1381. (Id ,i 5.) In or about 2016, the Fund subsequently determined that Le
Perigord had incurred withdrawal liability and sent a notice on April 29, 2016, by certified mail,
return receipt requested, notifying Le Perigord of its determination and demanding payment in
the amount of$1,757,369.00. (Id ,i,i 6-7.) Payment was to be made according to a statutorily
defined schedule of quarterly payments, with the first payment due by June 1, 2016. (Id ,i 7.)
The Fund did not receive the first payment. (Id. ,i 7.)
On June 3, 2016, by certified mail, return receipt requested, the Fund notified Le Perigord
of its failure to pay, and that if such failure was not cured within 60 days, Le Perigord would be
in default. (Id ,i 8.) Le Perigord never sent payment. (Id ,i 8.) Following said notifications, the
Fund did not receive any withdrawal liability payments as required by the Notices and Demand.

(Id ,i 8.) Le Perigord has neither requested review or initiated arbitration of its withdrawal
liability as permitted pursuant to Section 4221 of ERISA, 29 U.S.C. § 1401. (Id ,i,i 9-11.)
SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides: "The coutt shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving

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party bears the initial burden of pointing to evidence in the record, "including depositions,
documents [and] affidavits or declarations," id. at 56(c)(l)(A), "which it believes demonstrate[s]
the absence ofa genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317,323
(1986). The moving party may also suppo1t an assertion that there is no genuine dispute by
"showing ... that [the) adverse party cannot produce admissible evidence to supp01t the fact."
Fed. R. Civ. P. 56(c)(l)(B). If the moving pmty fulfills its preliminary burden, the onus shifts to
the non-moving pmty to identify "specific facts showing that there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986) (internal citation and quotation marks
omitted). A genuine dispute of material fact exists when "the evidence is such that a reasonable
jury could return a verdict for the nonmoving pmty." Id. at 248; accord Benn v. Kissane, 510 F.
App'x 34, 36 (2d Cir. 2013) (summary order). Comts must "constru[e) the evidence in the light
most favorable to the non-moving party and draw[) all reasonable inferences in its favor."

Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal
quotation marks omitted). In reviewing the record, "the judge's function is not himself to weigh
the evidence and determine the truth of the matter," nor is it to determine a witness's credibility.

Anderson, 477 U.S. at 249. Rather, "[t]he inquiry performed is the threshold inquiry of
determining whether there is the need for a trial." Id. at 250.
Summary judgment should be granted when a pa1ty "fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial." Celotex, 477 U.S. at 322. The pmty asserting that a fact is
genuinely disputed must suppo1t their asse1tion by "citing to particular pmts of materials in the
record" or "showing that the materials cited do not establish the absence ... of a genuine
dispute." Fed. R. Civ. P. 56(c)(l ). "Statements that are devoid of any specifics, but replete with

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conclusions, are insufficient to defeat a properly supported motion for summary judgment."
Bickerstaffv. Vassar Coll., 196 F.3d 435,452 (2d Cir. 1999). The nonmoving patty "may not
rely on conclusory allegations or unsubstantiated speculation." FDIC v. Great Am. Ins. Co., 607
F.3d 288,292 (2d Cir. 2010) (internal citation and quotation marks omitted).
"The fact that there has been no response to a summary judgment motion does not ...
mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d
Cir. 1996). "Even when a motion for summary judgment is unopposed, the district comt is not
relieved of its duty to decide whether the movant is entitled to judgment as a matter of law."
Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,242 (2d Cir. 2004). "If the
evidence submitted in support of the summary judgment motion does not meet the movant's
burden of production, then 'summary judgment must be denied even ifno opposing evidentiary
matter is presented."' Id. (quoting Amaker v. Foley, 274 F.3d 677,681 (2d Cir. 2001))
(emphasis in original).
DISCUSSION
1.

Withdrawal Liability

The Plan is a multiemployer pension plan under ERISA and the MPPAA, "in which
multiple employers pool contributions into a single fund that pays benefits to covered retirees
who spent a certain amount of time working for one or more of the contributing employers."
Trustees of Local 138 Pension Trust Fund v. F W Honerkamp Co. Inc., 692 F.3d 127, 129 (2d
Cir. 2012). Multiemployer plans are advantageous in industries like the one at issue here - the
restaurant and catering industry - "where companies frequently go in and out of business and
employees transfer among employers, making a single-employer plan 'unfeasible."' Nat'/

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Integrated Grp. Pension Plan v. Dunhill Food Equip. Corp., 938 F. Supp. 2d 361,366 (E.D.N.Y.
2013) (quoting Trustees ofLocal 138 Pension Trust Fund, 692 F.3d at 129). However,
[a] key problem of ongoing multiemployer plans, especially in declining industries, is the
problem of employer withdrawal. Employer withdrawals reduce a plan's contribution
base. This pushes the contribution rate for remaining employers to higher and higher
levels in order to fund past service liabilities, including liabilities generated by employers
no longer paiticipating in the plan, so-called inherited liabilities. The rising costs may
encourage--or force-fu1ther withdrawals, thereby increasing the inherited liabilities to
be funded by an ever-decreasing contribution base.

Trustees of Local 138 Pension Trust Fund, 692 F.3d at 129 (quoting Pension Benefit Guar.
Corp. v. R.A. Gray & Co., 467 U.S. 717, 722 n.2 (1984)). To deal with this issue, Congress
enacted the MPPAA, which provides that when "an employer withdraws from a multiemployer
plan ... [it will be] liable to the plan in the amount determined ... to be the withdrawal
liability." 29 U.S.C. § 1381. "Withdrawal liability is the withdrawing employer's proportionate
share of the pension plan's unfunded vested benefits." Trustees ofLocal 138 Pension Trust

Fund, 692 F.3d at 130.
In order to grant summary judgment to the Fund on the issue of withdrawal liability, the
Fund "must establish three elements:'(!) that defendants constituted an 'employer' under
MPPAA prior to the withdrawal; (2) that defendants received notice of a withdrawal liability
assessment against them; and (3) that defendants failed to initiate arbitration' as required by [the]
MPPAA."' Nat'/ Integrated Gip. Pension Plan, 938 F. Supp. 2d at 366 (E.D.N.Y. 2013)
(quoting Bd. o/Truslees of Trucking Emps. ofN Jersey Welfare Fund, Inc.-Pension Fund v.

1 "Employers that wish to challenge a withdrawal liability assessment must do so through a mandatory
system of arbitration." Nat'/ Integrated Grp. Pension Plan, 938 F. Supp. 2d at 361 (citing 29 U.S.C, § 140l(a)(I)).
"Where a defendant does not initiate arbitration, it waives its right to arbitration and its right to assert any defenses
in an action seeking withdrawal liability and the withdrawal liability assessed against the defendant becomes fixed."
Id. (internal citations and quotation marks omitted). "The statute provides that ifan arbitration proceeding has not
been initiated in the prescribed time period, the amounts demanded by the plan are 'due and owing on the schedule
set forth by the plan sponsor' and the 'plan sponsor may bring an action in a State or Federal court of competent
jurisdiction for collection."' Id. (quoting 29 U.S.C. § 140 l(b)(l )).

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Canny, 900 F.Supp. 583, 592 (N.D.N.Y. 1995)). See also NYSA-ILA Pension Trust Fund v. Am.
Stevedoring, Inc., No. 12 CIV. 2506 PAC, 2014 WL 462835, at *2 (S.D.N.Y. Feb. 5, 2014), as
amended Feb. 5, 2014, appeal dismissed July 2, 2014.
The Fund has satisfied each of these elements. It is undisputed that Le Perigord was an
employer under the MPPAA prior to its withdrawal from the Plan. Le Perigord was a party to a
collective bargaining agreement with the Union and, as such, was obligated to make
contributions to the Fund on behalf of its employees, which it did through August 31, 2015.
(Pis.' 56.1

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2, 4.) Likewise, the Union notified Le Perigord of a withdrawal liability assessment

against it by ce1tified mail on two occasions, April 29, 2016 and June 3, 2016. (Id.~~ 7, 8.)
Finally, Le Perigord never requested review of or initiated arbitration of its withdrawal liability.

(Id. ~ 10, 11.) Accordingly, the Fund is granted summary judgment with respect to Le
Perigord's withdrawal liability.
2.

Interest, Liquidated Damages, Fees, and Costs
The Fund also seeks interest, liquidated damages, attorneys' fees, and costs. "In any

action to collect withdrawal liability 'in which a judgment in favor of the plan is awarded, the
comt shall award the plan,' in addition to the unpaid withdrawal liability, reasonable attorneys'
fees and costs, interest, and liquidated damages." Nat'/ Integrated Grp. Pension Plan, 938 F.
Supp. 2d at 379 (internal citations omitted). Having granted the Fund summary judgment on its
withdrawal liability claim, the Comt also awards the Fund reasonable attorneys' fees, costs,
interest, and liquidated damages.

CONCLUSION
For the foregoing reasons, Plaintiffs' motion for summary judgment is GRANTED. The
Court respectfully directs the Clerk to terminate the motion at ECF No. 28. Plaintiffs are

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directed to submit a proposed judgment, along with a detailed affidavit on the issue of reasonable
attorney's fees, to the Court within 14 days of this Order. Defendants are directed to submit any
objections to the proposed judgment and request for attorney's fees within 10 days of its
submission to the Comt.

Dated:

SO ORDERED:

April 9, 2018
White Plains, New York

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United States District Judge

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