United States District Court, D. Colorado
ARTHUR DeIANNI, as Trustee and Chairman of the Board of Trustees of the CWA/ITU Negotiated Pension Plan, Plaintiff,
PROGRESS PRINTING CORPORATION, Defendant.
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion
for Summary Judgment [#41](the “Motion”).
Defendant filed a Response [#45] in opposition to the Motion,
and Plaintiff filed a Reply [#46]. The Court has reviewed the
Motion, Response, Reply, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion [#41] is
GRANTED in part and DENIED in
material facts are largely undisputed. Plaintiff brings this
action under the Employee Retirement Income Security Act of
1974 ("ERISA"), 29 U.S.C. §§ 1001-1461,
as amended by the Multiemployer Pension Plan Amendments Act
of 1980 ("MPPAA"), on behalf of the CWA/ITU
Negotiated Pension Plan (the "Plan").
Motion [#41] at 1. Plaintiff serves as Trustee and
Chairman of the Board of Trustees for the Plan, which is an
"employee pension benefit plan" and
"multiemployer plan" as defined in ERISA §
3(2), 29 U.S.C. § 1002(2), and ERISA § 3(37)(A), 29
U.S.C. § 1002(37)(A), respectively. Id. at 1-2;
Sched. Order [#24] at 3. The Plan is administered in
Colorado Springs, Colorado, and the Plan's Trustees are
"fiduciaries" as defined in ERISA § 3(21), 29
U.S.C. § 1002(21). Sched. Order [#24] at 3;
Motion [#41] at 2. The Plan is governed by the
CWA/ITU Negotiated Pension Plan Document (the "Plan
Document") which provides that delinquent contribution
employers shall be liable to the Plan for interest on the
amount of delinquent contributions owing, plus liquidated
damages and attorneys' fees. Motion [#41] at 2;
Ex. B [#41-4].
is an Illinois corporation that was an "employer"
at all relevant times under ERISA § 3(5), 29 U.S.C.
§ 1002(5). Motion [#41] at 2; Compl.
[#1] 9; Answer [#11] at 4. Defendant was a
contributing employer in the Plan pursuant to a collective
bargaining agreement ("CBA") with the Chicago
Typographical Union No. 16/Communication Workers of America
Local 14408 (the "Union") which required it to make
benefit contributions on behalf of represented employees.
Motion [#41] at 2; Decl. of Gapshis
¶¶ 6, 7, 9 (attached to Response [#45] at
10-11). The CBA was effective June 7, 1992, through June 6,
1995, and renewed for two or three year periods thereafter
pursuant to a series of riders. Sched. Order [#24]
at 4; Ex. A [#41-3] at 1. The last rider was valid
through June 6, 2014. Ex. A [#41-3] at 2. The terms
of the last rider required Defendant to contribute thirteen
dollars and twenty cents ($13.20) to the Plan for each shift
worked by an employee represented by the Union.
Motion [#41] at 2; Ex. A [#41-3] at 2.
the rider's expiration on June 6, 2014, Defendant
continued to submit contributions to the Plan on behalf of
its covered employees until some time in 2015. Decl. of
Castle ¶ 6; Decl. of Gapshis ¶ 11
(attached to Response [#45] at 11). Defendant failed
to submit contributions for certain months in 2015.
Motion [#41] at 3. For this reason, the Plan sent
Defendant a collection letter dated August 10, 2015,
demanding $1, 082 in delinquent contributions with interest
for the period of March through June 2015; and $54.98 in
accrued interest for late payments made for the period of
August 2014 through February 2015. Ex. C [#41-5].
The Plan requested that Defendant submit these amounts by
August 24, 2015, which Defendant failed to do.
letter dated September 30, 2015, the Plan notified Defendant
that due to its failure to pay contributions fro the period
of March through September 2015, the Plan's Trustees had
terminated Defendant's status as a “Contributing
Employer, ” effective as of the letter date. Ex.
D [#41-6]; Decl. of Castle [#41-1] at 11. The
letter further stated that "[b]y terminating through
non-payment of contributions, [Defendant] has effectively
withdrawn as a contributing employer and may owe statutory
withdrawal liability to the Plan in addition to the
delinquent contributions and interest." Ex. D
[#41-6]. After receiving the September 30, 2015 letter,
Defendant made one payment of $607.20 on October 2, 2015,
toward the March and April 2015 delinquency; and another
payment of $384.98 on December 29, 2015, toward the September
2015 delinquency. Decl. of Gapshis ¶ 16
(attached to Response [#45] at 12).
January 11, 2016, the Plan sent Defendant a withdrawal
liability demand totaling $102, 544, to be paid in eighty
quarterly installments. Ex. E [#41-7]. The letter
included the liability calculation and a schedule of payments
which made the first quarterly installment of $1, 693 due
within sixty days. Id. The letter also notified
Defendant of its rights under the MPPAA to request a review
of the liability determination, identify inaccuracies in the
calculation, and provide additional relevant information
within ninety days. Id.; Motion [#41] at
3-4. Defendant never exercised these rights nor did it
initiate arbitration to challenge the withdrawal liability
determination or assessment, as required under the MPPAA.
did not submit the first quarterly payment within sixty days.
Decl. of Castle ¶ 14. On May 4, 2016, the Plan
notified Defendant “that if the failure to pay is not
cured within sixty (60) days, the [Defendant] will be in
default, and the full amount of the withdrawal liability
shall become immediately due and owing.” Ex. F
[#41-8]. Defendant did not make any payment within the
sixty-day cure period that ended on July 3, 2016. Decl.
of Castle ¶ 16.
filed this lawsuit on March 23, 2017. See Compl.
[#1]. He has asserted two claims on behalf of the Plan: (1)
collection of unpaid employee benefit contributions in the
amount of $1, 346.40 (“Claim One”); and (2)
collection of unpaid withdrawal liability in the amount of
$100, 851 (“Claim Two”). Id.
¶¶ 15-30. In the present Motion [#41], Plaintiff
asserts that there is no genuine issue of material fact
regarding either Claim One or Claim Two because the material
facts are undisputed: in sum, that Defendant was obligated
under ERISA and the MPPAA to submit employee benefit
contributions and withdrawal liability payments to the Plan
and failed to do so. Thus, Plaintiff argues, the Court is
required to find that the Plan is entitled to judgment in its
favor as to both claims as a matter of law. Defendant does
not appear to dispute any material fact or raise any new
facts that would foreclose summary judgment. Instead,
Defendant argues that it is not legally obligated to pay
these amounts based on the undisputed record before the
Standard of Review
purpose of a motion for summary judgment pursuant to
Fed.R.Civ.P. 56 is to assess whether trial is necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment
should enter if the pleadings, the discovery and disclosure
materials on file, and any affidavits show “that there
is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” An
issue is genuine if the evidence is such that a reasonable
jury could resolve the issue in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is material if it might affect the outcome of
the case under the governing substantive law. Id.
burden is on the movant to show the absence of a genuine
issue of material fact. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing
Celotex, 477 U.S. at 323). When the movant does not
bear the ultimate burden of persuasion at trial, the
“movant may make its prima facie demonstration [of the
absence of a genuine issue of material fact] simply by
pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Id. at 671. If the movant carries the
initial burden of making a prima facie showing of a lack of
evidence, the burden shifts to the nonmovant to put forth
sufficient evidence for each essential element of his claim
such that a reasonable jury could find in his favor. See
Anderson, 477 U.S. at 248; Simms v. Okla. ex rel.
Dep't of Mental Health & Substance Abuse Servs., 165
F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go
beyond the allegations and denials of his pleadings and
provide admissible evidence, which the Court views in the
light most favorable to him. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970); Panis v. Mission
Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995)
(citing Celotex, 477 U.S. at 324). Conclusory
statements based merely on conjecture, speculation, or
subjective belief are not competent summary judgment
evidence. Bones v. Honeywell Int'l, Inc., 366
F.3d 869, 875 (10th Cir. 2004). The nonmoving party's
evidence must be more than “mere reargument of [his]
case or a denial of an opponent's allegation” or it
will be disregarded. See 10B Charles Alan Wright, et
al., Federal Practice and Procedure § 2738 at 356 (3d
documents that meet the evidentiary requirements of
Fed.R.Civ.P. 56 may be considered for purposes of summary
judgment. Rule 56(c) provides that:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials[.] . .
(3) Materials Not Cited. The court need consider only the
cited materials, but it may consider other materials in the
(4) Affidavits or Declarations. An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.
Fed. R. Civ. P. 56(c)(1)-(4).
mentioned above, Plaintiff moves for summary judgment on both
claims asserted against Defendant. Claim One seeks to collect
from Defendant $1, 346.40 in unpaid employee benefit
contributions for the period of May 2015 through August 2015,
plus interest and liquidated damages pursuant to 29 U.S.C.
§§ 1132(g)(2), 1145. Claim Two seeks to collect
from Defendant $100, 851 in unpaid withdrawal liability under
the MPPAA, plus interest and liquidated damages pursuant to
29 U.S.C. §§ 1399(c)(5), 1401(b)(1), 1132(g)(2). As
to both claims, Plaintiff seeks attorneys' fees and costs
pursuant to 29 U.S.C. § 1132(g)(2). Plaintiff bears the
burden of proof on both claims at trial. Accordingly, he
bears the burden to come forward with sufficient evidence to
establish a prima facie case as to both claims.
Claim One - Delinquent Contributions
Plaintiff argues that the Plan is entitled to collect $1,
346.40 in unpaid employee benefit contributions, plus
interest and liquidated damages, from Defendant as a matter
of law because it is undisputed that Defendant failed to pay
contributions in that amount for the period of May 2015
through August 2015. In response, Defendant argues that the
CBA's expiration on June 6, 2014 relieved Defendant of
any obligation to pay those contributions and, even if it did
not, those contributions have since been paid.
Subject Matter Jurisdiction
Court sua sponte raises the issue of subject matter
jurisdiction. “[I]t has long been recognized that a
federal court must, sua sponte, satisfy itself of its power
to adjudicate in every case and at every stage of the
proceeding.” Shaw v. AAA Engineering & Drafting
Inc., 138 Fed.Appx. 62, 67 (10th Cir. 2005) (citing
State Farm Mut. Ins. Co. v. Narvaez, 149 F.3d 1269,
1270-71 (10th Cir. 1998)). “If the court determines at
any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
well established that “[t]he party invoking federal
jurisdiction bears the burden of establishing such
jurisdiction as a threshold matter.” Radil v.
Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir.
2004). Plaintiff cites to ERISA § 502(e)(1), 29 U.S.C.
§ 1132(e)(1), and ERISA § 502(f), 29 U.S.C. §
1132(f), as the jurisdictional bases for its delinquent
contribution claim to enforce ERISA § 515, 29 U.S.C.
§ 1145. Compl. [#1] ¶ 2. Although ERISA
§ 502 does grant federal district courts exclusive
jurisdiction over civil actions brought by a multiemployer
plan's fiduciary to collect delinquent contributions
under ERISA § 515, jurisdiction may be precluded where,
as is here, the contributions sought are for periods after a
collective bargaining agreement has expired. See 29
U.S.C. §§ 1132(e)(1), 1132(f), 1145, In
Laborers Health and Welfare Trust Fund for Northern
California v. Advanced Lightweight Concrete Co.,
Inc., 484 U.S. 539 (1988), the United States Supreme
Court interpreted ERISA §§ 502 and 515 to grant
federal courts exclusive jurisdiction only when the dispute
concerns “promised contributions” owed under an
effective collective bargaining agreement. The Court reached
this interpretation by first noting that an employer who is
party to a collective bargaining agreement may have two
distinct legal obligations to contribute to a pension plan:
(1) a contractual duty imposed by the terms of the agreement,
and (2) a statutory duty imposed by the National Labor
Relations Act (NLRA), 29 U.S.C. § 141, et seq.
Advanced Lightweight, 484 U.S. at 541. Unlike the
contractual duty, which extinguishes by expiration of the
agreement, the statutory duty may extend beyond expiration
where "an employer's failure to honor the terms and
conditions of an expired collective-bargaining agreement
pending negotiations on a new agreement constitutes bad faith
bargaining in breach of sections 8(a)(1), 8(a)(5) and 8(d) of
the [NLRA]." Id. at 544 n.6 (quoting NLRB
v. Katz, 369 U.S. 736, 743 (1962)). Because, "[a]s
a general rule, federal courts do not have jurisdiction over
activity that is arguably subject to § 7 or § 8 of
the NLRA, [ ] they must defer to the exclusive competence of
the National Labor Relations Board [(NLRB) in those
matters]." Id. at 543 n.4 (quoting Kaiser
Steel Corp. v. Mullins, 455 U.S. 72, 83 (1982))
(internal quotation marks omitted).
§ 515 provides:
Every employer who is obligated to make contributions to a
multiemployer plan under the terms of the plan or under the
terms of a collectively bargained agreement shall, to the
extent not inconsistent with law, make such contributions in