                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


BOARD OF TRUSTEES,                 )                   Civil Action No. 05-1479 (JDS)
NATIONAL SHOPMEN PENSION FUND )
                                   )
            Plaintiff,             )
                                   )
                                   )                   MEMORANDUM OPINION AND
      v.                           )                   ORDER
NORTHERN STEEL CORP. et al.,       )
                                   )
            Defendants             )
__________________________________ )



                                           Introduction

       Presently before the Court is Plaintiff Board of Trustees, National Shopmen Pension

Fund’s (the “Fund”) Motion for Summary Judgment. The Fund is a multiemployer pension plan.

The Fund seeks to recover withdrawal liability sums under the Employee Retirement Income

Security Act of 1974 (ERISA), as amended by the Multiemployer Pension Plan Amendments

Act of 1980 (MPPAA). The Fund seeks recovery from Defendants Northern Steel Corp.

(Northern), Oswego Amusements, Inc. (Oswego), GDR Enterprises of Oswego, Inc. (GDR),

George Caruso, Jr., and Romao Caruso (collectively Defendants). The Fund requests the sum of

$679,680.00 in withdrawal liability plus interest, liquidated damages, attorneys fees and costs as

required by Section 502(g) of ERISA. Based on the Fund’s assessment, Northern was to pay

$2,832.00 per month for 240 months which would have resulted in a total payment of the full

withdrawal liability. Plaintiff’s Statement of Undisputed Material Facts (Pltf.’s Facts), ¶ 8.

        Specifically, the Fund argues that Northern’s withdrawal from the Fund in October, 2001



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subjected it to withdrawal liability under ERISA. The Fund asserts that it properly provided

notice to Northern which failed to timely request arbitration thereby causing withdrawal liability,

as assessed by the Fund, to become due and owing. The Fund also argues that Oswego, GDR

and the individual defendants are liable under alter ego and corporate veil piercing theories.

       In turn, Defendants argue that Northern was not provided adequate notice of withdrawal

liability and the corporate entities should be preserved.

       On April 23, 2009, the Court held a hearing and is prepared to rule on the Fund’s motion.



                                             Standard

       Summary judgment, “should be rendered if the pleadings, the discovery and disclosure

materials on file, and any affidavits [or declarations] 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.” Fed.R.Civ P.

56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). “A fact is ‘material’

if a dispute over it might affect the outcome of a suit under the governing law; factual disputes

that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Id. at

895 quoting Anderson ,. at 248. An issue is “genuine” if the evidence could provide for a

reasonable jury returning a verdict for the nonmoving party. See Id. When considering a motion

for summary judgment, “the evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Id. at 255. The Court shall, “eschew making credibility

determinations or weighing the evidence” on a motion for summary judgment. Czekalski v.

Peters, 475 F.3d 360, 363 (D.C.Cir.2007).

       However, a party opposing summary judgment must set forth more than mere



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unsupported allegations or denials and the opposition must be supported by affidavits,

declarations or other competent evidence, setting forth specific facts showing that there is a

genuine issue for trial. See Fed.R.Civ P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106

S.Ct. 2548, 91 L.Ed.2d 265 (1986).

        If the opposing party’s evidence is “merely colorable” or “not significantly probative,”

summary judgment may be granted. Anderson at 249-50; see also Scott v. Harris, 550 U.S. 372,

127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007) (“[w]here the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is ‘no genuine issue for trial.’ ”)

(quoting Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.

1348, 89 L.Ed.2d 538 (1986)). To defeat a motion for summary judgment, a party must have

more than “a scintilla of evidence to support his claims.” Freedman v. MCI Telecommunications

Corp., 255 F.3d 840, 845 (D.C.Cir.2001).

                                              Discussion

I. Statutory Scheme

        ERISA Sections 4201-4225, as amended by the MPPAA, Pub.L. No. 96-364, 94 Stat.

1208, 29 U.S.C. §§ 1381-1461, provides that if an employer withdraws from a multiemployer

plan they must make withdrawal liability payments sufficient to cover that employer's share of

the plan's unfunded vested benefits. 29 U.S.C. §§ 1381, 1391. “[T]he withdrawal liability

payment requirement generally protects the financial integrity of multiemployer plans, prevents

withdrawing employers from shifting their burdens to remaining employers, and eliminates an

incentive for employers to flee underfunded pension plans.” Nat'l Shopmen Pension Fund v.

Disa, 583 F.Supp.2d 95, 99 (D.D.C.2008) (citing Milwaukee Brewery Workers' Pension Plan v.

Joseph Schlitz Brewing Co., 513 U.S. 414, 416, 115 S.Ct. 981, 130 L.Ed.2d 932 (1995);



                                                Page 3
Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 216, 106 S.Ct. 1018, 89 L.Ed.2d 166

(1986); Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 722-23, 104 S.Ct.

2709, 81 L.Ed.2d 601 (1984)).

       The steps for determining withdrawal liability are set forth by statute. Under the

MPPAA, responsibility for assessing and collecting withdrawal liability is on the plan sponsor.

29 U.S.C . § 1382, § 1002(16)(B). ERISA Section 4219(b) mandates that the plan sponsor, “as

soon as practicable” after an employer's withdrawal from the plan; (1) determine the employer's

withdrawal liability; (2) prepare a statutorily-mandated schedule for payment of that liability in

installments; (3) notify the employer of the amount of the liability and the payment schedule and;

(4) demand payment in accordance with the schedule. 29 U.S.C. §§ 1382, 1399(b)(1). After

calculating the withdrawal liability amount, the plan sponsor prepares a schedule for the

payments by determining the “level annual payments” necessary to amortize the liability. 29

U.S.C. § 1399(c). ERISA further provides that “[a]ny dispute between an employer and the

plan sponsor ... shall be resolved through arbitration,” which a party may initiate within certain

time periods. 29 U.S.C § 1401(a). Deadlines for the payment of withdrawal liability, plan

sponsor review, and arbitration are triggered by notice and demand for payment to the employer.

See, 29 U.S.C. § 1399(b)(2)(A) & (c)(2) (ERISA Sections 4219(b)(2)(A) & (c)(2)).

II. Withdrawal Liability as to Northern.

       In this case, it appears undisputed that Northern withdrew from the Fund in October,

2001. The Fund asserts that it provided notice of the determination of withdrawal liability to

Northern by letter dated September 30, 2003 and to George H. Caruso on February 10, 2004.

The Fund administrator, A.H. Higgs, states that the Fund sent the September 30 letter by UPS,

which made three delivery attempts to the last known address of Northern. See Supplemental



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Declaration of A.H. Higgs (Sup. Dec.) ¶ 3.     The Fund asserts that after properly providing

notice, Northern failed to make any of the quarterly payments, did not request plan sponsor

review of the withdrawal liability payments and never attempted to initiate arbitration. The Fund

argues that the withdrawal liability it assessed is now due and owing from Northern.

       Defendants claim that, prior to the instant lawsuit, Northern never received notice and

therefore the statutory notice requirements were not met.

       It is well settled that notice of withdrawal liability sent to one member of a controlled

group constitutes notice to all members of that group. See McDonald v. Centra, Inc., 946 F.2d

1059 (4th Cir. 1991); Connors v. Calvert Development Co., 622 F. Supp. 877 (D.D.C. 1985);

O'Connor v. DeBolt Transfer, Inc., 737 F. Supp. 1430 (W.D. Pa. 1990).

        Regardless of whether proper notice was issued in 2001, the Fund correctly points out

that service of the present Complaint on August 4, 2005 constitutes valid notice under ERISA.

The Fund argues that even if a factual question exists concerning its original notice to

Defendants, they may not dispute that they received proper notice when they were served with

the Complaint in this action. See Bowers v. Transportacion Maritima Mexicana, S.A., 901 F.2d

258, 263 (2d Cir.1990) (finding that, regardless of original notice, defendant received valid

notice when it was served with the complaint); See also Debreceni v. Merchants Terminal Corp.,

740 F.Supp. 894, 900 (D.Mass.), aff'd, 889 F.2d 1 (1st Cir.1989) ( holding that filing of a lawsuit

by multiemployer pension plan under ERISA provided participating employers with sufficient

notice of default). The Fund argues that because Defendants did not seek review and arbitration

within 90 days of receipt of the Complaint the amounts became due and owing.

       If arbitration is not initiated by the employer, the employer's withdrawal liability is “due

and owing” according to the schedule set forth in the notice and demand. 29 U.S.C. § 1401(b)(1)



                                              Page 5
(ERISA Section 4221(b)(1)). It appears undisputed that Northern did not request arbitration

within 90 days following service of the Complaint. The Court finds that Northern received valid

notice by virtue of the Fund’s Complaint. Northern waived its right to arbitrate the withdrawal

liability assessed by the Fund and all amounts assessed are due and owing.

III. Liability as to Oswego Amusements, Inc., GDR Enterprises of Oswego, Inc.

       The Fund argues that Oswego Amusements and GDR are alter egos of Northern and, as

such, should be held jointly and severally liable for amounts due. Under ERISA, an alter ego

liability theory enables ERISA trustees to “recover delinquent contributions from a sham entity

used to circumvent the participating employer's pension obligations.” Flynn v. R.C. Tile, 353

F.3d 953, 958 (D.C.Cir.2004). Alter ego liability, in the context of ERISA, “protects the federal

interest in the solvency of multiemployer pension plans by enabling pension funds to recover

delinquent contributions from an alter ego used to circumvent the participating employer's

pension obligations.” Id. (citing Massachusetts Carpenters Cent. Collection Agency v. Belmont

Concrete Corp., 139 F.3d 304, 305 n. 3 (1st Cir.1998).

       “In order to determine whether two businesses are alter egos, the court ‘evaluates the

similarities between the two enterprises in their ownership, management, business purpose,

operations, equipment and customers.’” Flynn v. Veazey Const. Corp., 424 F.Supp.2d 24, 33

(D.D.C.,2006) (quoting Flynn v. R.C. Tile, 353 F.3d 953, 958 (D.C. Cir. 2004)). In support of

a finding that Oswego and GDR were alter egos of Northern, the Fund recites the following

undisputed facts:

        Defendant, Oswego Amusements, Inc. was in the business of owning and
       operating a speedway racing track.

       Both Northern Steel and Oswego Amusements, Inc. were wholly owned by
       George H. Caruso and his two brothers .... .



                                             Page 6
       George H. Caruso was president of both Northern Steel and Oswego
       Amusements, Inc.

       Oswego Amusements, Inc. and Northern Steel operated out of the same address.

       Over a period of years Northern Steel provided workers and materials to Oswego
       Amusements, Inc., and there was no agreement between the two companies for payment
       or repayment.

       In 1991, Harry Caruso's shares of stock in Oswego Amusements were redeemed.
       He received a note back from Oswego Amusements for $650,000, but the note was never
       repaid by the company.

       In 1992, George H. Caruso gifted his shares of stock in Oswego Amusements,
       Inc., to his three sons: George D. Caruso, Douglas Caruso, and Romao Caruso. He
       remained president of Oswego Amusements, Inc., and later served as Chairman of the
       Board.

       [I]n 1992, the three sons of George H. Caruso, established Oswego
       Speedway, Inc. to operated the speedway, while Oswego Amusements, Inc. remained the
       owner of the racetrack [].

       In 2000, Romao Caruso, on behalf of Oswego Amusements, Inc., and at the advice of
       counsel, drafted a note from Oswego Amusements, Inc. to Northern Steel for $500,000.
       This was to represent the labor and materials Northern Steel had supplied to Oswego
       Amusements over the years. The note was not negotiated with Northern Steel, and
       Northern Steel never demanded the note or payment on the Note. The Note was never
       repaid.

       Oswego Speedway, Inc. eventually became GDR Enterprises of Owego, Inc., ...
       Oswego Speedway, Inc. and GDR are one and the same.

       When Northern Steel ... was sold the proceeds in the amount of $240,848.00
       were deposited into the bank account of GDR.

       [W]hen the race track owned by Oswego Amusements was sold, proceeds
       in the amount of $344,831.95 were placed into an account owned by GDR.

       The only activity of GDR is to hold the money of Northern Steel and pay
       Northern Steel's insurance premiums.

       GDR is wholly owned by George D. Caruso, Douglas Caruso, and Romao
       Caruso. They are the Corporations [sic] only officers.

Pltf.’s Facts, ¶ 10-23 (internal citations omitted).



                                                Page 7
       Defendants do not directly dispute the above facts, but rather maintain that although there

were transactions between GDR, Oswego and Northern, there was, “strict financial

accountability” regarding those matters. See Defendant’s Statement of Points and Authorities in

Opposition to Plaintiff’s Motion for Summary Judgment, p. 4. However, Defendants provide no

compelling factual support for their position. While denying alter ego status, Defendants admit

that GDR is a “custodian” of cash assets of Northern and Oswego Amusements and claim that

when there is a judgment against Northern they will turn over the assets upon an appropriate

demand. Id. at 5. Defendants make conclusory and largely unsupported statements that the

ownership and management were separate. Defendants’ response to the alter-ego theory is

unavailing.

       Consequently, the Court finds that the above facts exhibit sufficient similarities between

the enterprises in their ownership, management, business purpose and operations to support alter

ego liability as to Oswego Amusements, Inc., and GDR.

IV. Corporate Veil Theory as to Individual Defendants.

       The Fund argues that the corporate veil ought to be pierced as to George Caruso Jr. and

Romao Caruso. In support, the Fund asserts that the Carusos completely controlled Northern by

virtue of their ownership and management of GDR.

       Generally, ERISA does not extend withdrawal liability to an individual corporate owner

or officer absent a claim of alter ego or necessity to pierce the corporate veil. See International

Brotherhood of Painters v. George A. Kracher, Inc., 856 F.2d 1546 (D.C.Cir.1988). Even when

alter-ego and veil piercing theories are advanced, “courts have noted that where plaintiffs in an

ERISA action fail to allege that individual defendants should be held personally liable under

such principles, or fail to introduce evidence that would support such a basis for liability, such



                                               Page 8
claims must be dismissed.” Connors v. P & M Coal Co., 801 F.2d 1373, 1378 (D.C.Cir.1986)

(citing Operating Engineers Pension Trust, 726 F.2d at 515; Moyers v. Frank P. Bauer Marble

Co., 556 F.Supp. 192, 194 (N.D.Ill.1983)).

        In the instant case, the Fund neither alleged a basis for liability nor introduced any

evidence that would support a summary judgment holding George Caruso Jr. and Romao Caruso

personally liable for corporate obligations. The Court finds that aside from conclusory

allegations of commingled assets and ownership and control of the companies, Plaintiff has not

set forth facts which indicate the individual defendants used the business entities to defeat public

convenience, justify wrong, protect fraud, or defend crime. See Francis O. Day Co. v. Shapiro,

267 F.2d 669, 673(D.C. Cir. 1959) (citation omitted). While there are supported allegations of

commingled assets between the business entities, the record is largely devoid of such evidence as

to the individual defendants1. Consequently, the request to pierce the corporate veil as to the

individual defendants is, at best, premature in the context of a Rule 56 motion for summary

judgment.

       Accordingly, IT IS ORDERED that Plaintiff’s motion for summary judgment [Doc. No.

37] is GRANTED as to Defendants Northern Steel Corp., Oswego Amusements, Inc. and GDR

Enterprises of Oswego, Inc., and DENIED as to George Caruso Jr. and Romao Caruso.




       1
           Plaintiff also argues that George Caruso Jr. and Romao Caruso should be liable for the
corporation’s debts under the corporate trust doctrine. However, as discussed above, Plaintiff
does not provide the Court with sufficient facts suggesting that assets improperly inured to the
individuals. A review of Plaintiff’s Undisputed Facts does not evidence any assets distributed to
George Caruso Jr. and Romao Caruso individually. Consequently, the Court declines to assess
liability to the individual defendants on the record before it.

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The Clerk of Court shall notify the parties of the making of this Order.


       DONE and DATED this 28th day of September, 2009




                                             /s/ Jack D. Shanstrom
                                      ________________________________
                                      Jack D. Shanstrom
                                      Senior United States District Judge




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