Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Iue Multi-Employer Pension Fund v. M & C Vending

November 13, 2012


The opinion of the court was delivered by: William J. Martini, U.S.D.J.


Plaintiff IUE Multi-Employer Pension Fund (the "Fund") brings this action against Defendant M & C Vending, Inc. ("M&C Vending") under the Employee Retirement Income Security Action of 1974 ("ERISA"), 29 U.S.C. §§ 1001, et seq. This matter comes before the Court on a motion to dismiss filed by Eliot J. Faber, the President of M&C Vending, and a motion for default judgment filed by the Fund. For the reasons set forth below, the motion to dismiss is DENIED, the motion for default judgment is DENIED, and the action is DISMISSED for lack of subject-matter jurisdiction.


The Fund commenced this action on July 27, 2011, and filed an Amended Complaint on August 15, 2011. ECF No. 1; ECF No. 5. The Fund filed an Affidavit of Service indicating that M&C Vending was served with the Amended Complaint on August 22, 2011. ECF No. 7.

According to the Amended Complaint, the Fund is an "'employee pension benefit plan'" and "a 'multiemployer plan' within the meaning of Section 3(37)(A) of ERISA, 29 U.S.C. § 1002(37)(A)." Am. Compl. ¶ 4. M&C Vending is a company that was a party to a collective bargaining agreement ("CBA") and a corresponding Memorandum of Agreement ("MOA"), pursuant to which the company was required to make period contributions to the Fund.*fn1 Id. ¶ 7. These agreements were supposed to be periodically renewed by the parties through subsequent MOAs. The Fund alleges that M&C Vending failed to sign a new MOA on June 30, 2009. Am. Compl. ¶ 8. The Fund asserts that M&C Vending's failure to sign a successor MOA on June 30, 2009 constituted a "complete withdrawal from the [Pension] Plan," and, as a result, M&C Vending is now obligated to pay withdrawal liability to the Fund in the amount of $114,362.00. Am. Compl. ¶¶ 10-11. Attached to the Amended Complaint is a letter that was sent from the Fund to Mr. Faber, informing him of the calculated amount of withdrawal liability and stating that, "[p]ursuant to [ERISA], any dispute between the Company and the Fund concerning the determination of withdrawal liability shall be resolved through arbitration." Am. Compl. Ex. B at 2, ECF No. 5-2.

The time for M&C Vending to answer or otherwise respond to the Amended Complaint expired on September 12, 2011. ECF No. 7. The company did not file any response by that date. Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk entered a Default against the company on October 25, 2011. ECF No. 8.

On October 26, 2011, Mr. Faber drafted a letter to the Clerk of the Court, stating that the company had not been properly served with the Summons and Complaint. ECF No. 9. On December 19, 2011, Mr. Faber filed an Answer on behalf of the company. ECF No. 10. The Answer asserts that M&C Vending did in fact renew its agreements with the union, and attaches a copy of an MOA dated June 30, 2009 that appears to be signed by both Mr. Faber and the union representative. 2009 MOA, Answer Ex. 3, ECF No. 10-1.*fn2

On March 8, 2012, the Fund filed the instant motion for default judgment, along with an Affidavit of Service. ECF No. 11. The Fund argues that M&C Vending has not properly filed an Answer because all filings made on behalf of a corporation must be made by an attorney. Gant Decl. ¶ 12, ECF No. 11-1. On March 29, 2012, Mr. Faber filed a motion to dismiss on behalf of M&C Vending.*fn3 ECF No. 12. Both motions are now before the Court.



It is well-settled that a corporation must be represented by a licensed attorney and may not be represented by an individual acting pro se on its behalf. Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993) ("It has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel."); see also United States v. Cocivera, 104 F.3d 566, 572 (3d Cir. 1996). Because Mr. Faber is not a licensed attorney, he cannot represent M&C Vending, and the submissions made by Mr. Faber cannot be properly considered by the Court. SeeLaborers' Dist. Council Const. Indus. Pension Fund v. Compliance Mgmt. Group, Inc., No. 04-4024, 2005 WL 1331059, at *1 (E.D. Pa. May 31, 2005). Because Mr. Faber's motion to dismiss was not filed by an attorney, the motion to dismiss is DENIED.*fn4


"Before imposing the extreme sanction of default, district courts must make explicit factual findings as to: (1) whether the party subject to default has a meritorious defense, (2) the prejudice suffered by the party seeking default, and (3) the culpability of the party subject to default." Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008) (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)). In this case, the Fund's motion for default judgment must be denied because M&C Vending has a meritorious defense.

The Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA") (29 U.S.C. §§ 1381-1461 (1982) (amending ERISA, 29 U.S.C. §§ 1001-1381)) governs an employer's liability for withdrawing from a multiemployer pension plan. Warner-Lambert Co., Inc. v. United Retail & Wholesale Employee's Teamster Local No. 115 Pension Plan, 791 F.2d 283, 284 (3d Cir. 1986). The Third Circuit held that the "MPPAA explicitly mandates the initial resolution of withdrawal liability disputes through arbitration." Republic Indus., Inc. v. Cent. Pennsylvania Teamsters Pension Fund, 693 F.2d 290, 294 (3d Cir. 1982); see also 29 U.S.C. § 1401 ("Any dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination [of withdrawal liability] shall be resolved through arbitration."). In so holding, the Third Circuit found that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.