United States District Court, D. Massachusetts
EDWARD GRODEN, as Executive Director of the New England Teamsters and Trucking Industry Pension Fund, Plaintiff,
REICHERT & SON TRUCKING, INC. and REICHERT & SON FUEL OIL, INC., Defendants.
MEMORANDUM AND ORDER
action is brought by Edward F. Groden, Executive Director of
the New England Teamsters and Trucking Industry Pension Fund
(the "Fund" or "Pension Fund"), on behalf
of the Fund. The Fund is a multiemployer pension plan subject
to the Employee Retirement Income Security Act of 1974
("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. The MPPAA requires an
employer withdrawing from a multiemployer pension plan to pay
a withdrawal fee equal to its proportionate share of the
pension fund's vested but unfunded benefits. See
29 U.S.C. §1381; Sun Capital Partners III, LP v. New
Eng. Teamsters & Trucking Indus. Pension Fund, 724
F.3d 129, 138 (1st Cir. 2013) (explaining purposes of
withdrawal liability are to discourage employers from
withdrawing from plans and to recoup lost funds).
defendant Reichert & Son Trucking, Inc. ("Reichert
Trucking") was an employer contributing to the Pension
Fund. Reichert Trucking withdrew from the Fund in 2012
without satisfying its withdrawal liability and ceased doing
business in 2014. The Fund sued Reichert Trucking on February
22, 2016 to recover its unpaid withdrawal liability (Count I)
. The Fund also seeks to hold defendant Reichert & Son
Fuel Oil, Inc. ("Reichert Fuel") liable for
Reichert Trucking's withdrawal payment under a theory of
common control, based on the fact that Donna Reichert owned
100% of Reichert Trucking while her husband William Reichert
owned 100% of Richard Fuel (Count II).
case was referred to Magistrate Judge Dein for full pretrial
purposes, including a report and recommendation on any
dispositive motions. On May 5, 2017, the plaintiff filed a
Motion for Summary Judgment against both defendants, seeking
to recover statutory damages for the withdrawal liability of
Reichert Trucking (the "Motion"). The defendants
concede in their opposition that judgment should enter
against Reichert Trucking, but argue that Reichert Fuel
should not also be held liable. Defendants argue there is no
common control between the companies or, in the alternative,
that material disputed facts preclude summary judgment on the
issue of Reichert Fuel's liability.
Magistrate Judge issued her Report and Recommendation on
February 12, 2018. In it, she concludes that the Fund is
entitled to judgment on Count I because the defendants
concede Reichert Trucking is liable for withdrawal payments.
The Magistrate Judge also recommends that Reichert Fuel be
held liable for Reichert Trucking's withdrawal liability,
as asserted in Count II, because there is no genuine dispute
that the companies were under common control and constitute a
single employer for purposes of withdrawal liability. She
found that the theory of common control applies to the
defendant entities because the spousal attribution regulation
states than an individual is "considered to own an
interest owned, directly or indirectly, by or for his or her
spouse." 26 C.F.R. §1.414(c) -4 (b) (5) ;
see, e.g., Cent. States, S.E. &
S.W. Areas Pension Fund v. Johnson, 991 F.2d 387, 389
(7th Cir. 1993). As previously noted, Donna and William
Reichert are married. Donna Reichert owned 100% of Reichert
Trucking and William Reichert owned 100% of Reichert Fuel.
The defendants do not satisfy a regulatory exception to the
spousal attribution rule, see 26 C.F.R.
§1.414(c)-4 (b) (5) (ii) (B), because both Donna and
William Reichert were actively involved in the management of
both companies. Accordingly, the Magistrate Judge recommends
that the Motion be allowed and that judgment enter against
all named defendants, including all aliases of Reichert Fuel.
deadline for the parties to file objections to the Magistrate
Judge's Report and Recommendation has passed. No
objections were filed. Where no objections have been filed to
a report and recommendation, the court is not required to
engage in de novo review, or even in "some
lesser standard" of review. See Thomas v. Arn,
474 U.S. 140, 149-50 (1985); 28 U.S.C. §636 (b) (1) (C)
; Fed. R. Civ. P. 72(b)(3). However, the court is encouraged
"to afford some level of review to dispositive legal
issues." Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987). Accordingly, the court has given
"reasoned consideration" to the Magistrate
Judge's Report and Recommendation. See id. The
court finds it to be thorough, thoughtful, and persuasive.
Therefore, the Report and Recommendation is being adopted.
plaintiff has also filed a Motion for Entry of Judgment and
provided an updated calculation of the amounts due with
supporting affidavits and billing records. When, as in this
case, a fiduciary of a pension plan seeks to recover
delinquent contributions and the court enters judgment in
favor of the plan, the plan is statutorily entitled to
recover: (a) the amount of unpaid contributions, which in
this case is the withdrawal payment; (b) interest on the
unpaid contributions as provided for by the plan; (c)
liquidated damages equal to the greater of the interest
amount or 20% of the unpaid contributions; and (d) reasonable
attorney's fees and costs. See 29 U.S.C.
affidavits and billing records show that defendants owe a
total of $377,24 0.06, consisting of: (a) $252,115 for unpaid
withdrawal liability; (b) $35,879.57 in interest, at an
annual rate of 5% compounded according to the 2014 Rules and
Regulations for the Pension Fund; (c) $50,423 in liquidated
damages, calculated as 20% of the amount of withdrawal
liability; and (d) $35,665 in attorney's fees, at a rate
of $350.00 per hour for 101.9 hours, and $3,157.49 in costs.
Therefore, plaintiff's Motion for Entry of Judgment is
adequately supported, and judgment against defendants in the
amount of $377,240.06 is proper.
of the foregoing, it is hereby ORDERED that:
Magistrate Judge's Report and Recommendation (Docket No.
46) is ADOPTED and INCORPORATED pursuant to 28 U.S.C.
the reasons stated in the Report and Recommendation, the
plaintiff's Motion for Summary Judgment (Docket No. 32)
Plaintiff's Motion for Entry of Judgment (Docket No. 47)
is ALLOWED. Judgment shall enter in the amount of $377,240.06
against defendants Reichert & Son Trucking, Inc.,
Reichert & Son Fuel Oil, Inc., and all aliases ...