Plaintiff argues that under the "single employer" concept of MPPAA, followed by the Third Circuit in Barker & Williamson, there is one notice, one 90-day time period within which to initiate review and arbitration, and one arbitration, all of which bind all members of a controlled group. Plaintiff then argues that there should be only one judgment, which binds all members of a controlled group, and that this action against the defendants should be considered an action to enforce against the defendants the prior judgment rendered against Trucking.
Plaintiff concedes that in the enforcement action, common control must be established, but argues that that does not change the nature of the action; it is still an enforcement action which must be brought within twenty years from the date of the judgment.
Plaintiff also apologizes this case to alter ego cases which address the limitations period applicable to actions in which a plaintiff seeks to pierce the corporate veil based on alter ego theories. Plaintiff argues that the reasoning in those cases should be applied since defendants are alter egos of Trucking, albeit statutory alter egos.
Several cases have addressed the statute of limitations applicable to actions seeking to pierce the corporate veil. Those cases have held that such actions should be construed as actions to enforce a judgment. An action to pierce the corporate veil is timely if the underlying action against the corporation was timely and the subsequent action to pierce the corporate veil to enforce the judgment was brought within the limitations period for enforcement of judgments. Wm. Passalacqua Builders v. Resnick Developers South, Inc., 933 F.2d 131 (2nd Cir. 1991) (holding that New York's twenty-year judgment enforcement statute of limitations was applicable to an action against related entities based on alter ego theories); United States v. Southern Fabricating Co., 764 F.2d 780 (11th Cir 1985) (holding that the six-year statute of limitations governing contract actions brought by the United States does not apply to its action to enforce a judgment by piercing the corporate veil); United States v. Clawson, 722 F. Supp. 1468 (E.D. Mich. 1989) (holding that the six-year statute of limitations governing recovery of Medicare overpayments did not apply to the government's action to pierce the corporate veil and collect an overpayment from a sole shareholder alleged to be the alter ego of a corporation).
All of these courts treated the alter egos as the same entity as the debtor. Since there was only one entity, there could only be one judgment. Thus, the subsequent actions against the alter egos were regarded as enforcements of the underlying judgments.
While defendants argue that the above cases are not on point because they did not involve the MPPAA, defendants do not suggest any reason for treating collection cases under MPPAA differently than other collection cases.
The Court accepts plaintiff's statute of limitations arguments and will treat a subsequent action against a member of a controlled group as an action to enforce a prior judgment against another member. The Court is persuaded that pursuant to the single employer concept adopted by the Third Circuit in Barker & Williamson, supra, only one withdrawal liability judgment can exist against members of a controlled group. Thus, it follows that all subsequent actions against different members of the controlled group are actions to enforce the judgment previously entered, and such an action is timely if brought within the period of the statute of limitations for enforcement of judgments. Moreover, pursuant to the MPPAA, members of a controlled group are statutory alter egos, and the alter ego cases cited above should be applied in the MPPAA context. Thus, once plaintiff establishes that an alter ego relationship existed, the statute of limitations for enforcement of judgments should be applied.
Plaintiff's action against defendants is timely since it was brought within twenty years
of the entry of plaintiff's judgment against Trucking on May 8, 1985. The MPPAA statute of limitations in 29 U.S.C. § 1451 does not apply to this case. Accordingly, summary judgment in favor of the Fund is appropriate, defendants having raised no issues of material fact.
Plaintiff argues that it is entitled to unpaid contributions, interest on unpaid contributions, and statutory liquidated damages (the greater of 20% of the assessment or double interest). 29 U.S.C. § 1132 (g)(2). Plaintiff is correct. The amount due plaintiff, as of May 1, 1992, is as follows:
Trucking's withdrawal liability
(as per default judgment) 129,042.00
Accrued Interest 107,534.50
Statutory Liquidated Damages 107,534.50
(See Affidavit of Glenn Simpson). Defendants do not contest this calculation of liability in their brief. However, it must be updated.
IT IS on this 31st day of March, 1993 ORDERED that plaintiff's motion for summary judgment is granted;
IT IS FURTHER ORDERED that defendants' motion for summary judgment is denied;
IT IS FURTHER ORDERED that counsel shall submit a proposed form of order reflecting the appropriate amount of withdrawal liability, accrued interest, and statutory liquidated damages, consented to as to form.
John C. Lifland, United States District Judge