The opinion of the court was delivered by: McLaughlin, J.
The plaintiffs in this action are the Government Development Bank for Puerto Rico ("GDB") and the Puerto Rico Maritime Shipping Association ("PRMSA"). The plaintiffs allege that the defendant corporations are liable for NPR, Inc.'s ("NPR") withdrawal liability under 29 U.S.C. § 1381 of the Multiemployer Pension Plan Amendments Act ("MPPAA") of 1980, 29 U.S.C. § 1381 et seq. (amending provisions of Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.).
The plaintiffs have moved for summary judgment against one of the defendants -- Orchard Hill Development Corporation ("Orchard Hill"). The Court will grant in part and deny in part the plaintiffs' motion.
PRMSA is an entity that formerly was engaged in the shipping business. It had utilized longshoreman services at the Port of Elizabeth, New Jersey. As a result, PRMSA was required to pay into the New York Shipping Association International Longshoreman's Association Pension Fund ("Fund"), a multiemployer pension plan governed by ERISA. Compl. ¶¶ 7, 9.
In February 1995, PRMSA sold its assets to NPR. PRMSA remained secondarily liable in the event that NPR withdrew from the Fund within a five-year period and failed to satisfy its withdrawal liability to the Fund. The Puerto Rican legislature required GDB to cover the existing liabilities of PRMSA, including PRMSA's potential withdrawal liability to the fund. On April 23, 1997, the plaintiffs, NPR, and the Fund entered into an agreement which provided that the plaintiffs would be jointly and severally liable for payment up to a specified amount in the event that NPR failed to pay all or any portion of its ERISA withdrawal liability. Compl. ¶¶ 10, 11; Pls.' Mot. for Summ. J. (hereinafter "Pls.' Mot."), Ex. 1A.
Holt Cargo Systems, Inc. ("Holt Cargo") purchased NPR on September 25, 1997. Holt Cargo assigned its interests in NPR to the Holt Group on November 20, 1997. Pls.' Mot., Ex 3.
From November 20, 1997 until NPR's liquidation in 2002, the Holt Group owned 100% of the stock in NPR. Thomas Holt, Sr. ("Holt, Sr.") owned 100% of the stock in the Holt Group. Pls.' Mot., Exs. 2, 4, 5; Def.'s Opp. to Pls.' Mot. (hereinafter "Def.'s Opp."), Exs. 3, 4.
On January 8, 2001, the Trustees of the Fund ("Trustees") notified NPR of its obligation to pay withdrawal liability on account of a partial withdrawal that occurred on December 31, 2000.*fn1 Pls.' Reply, Ex. 1. NPR continued to use longshoreman services at the Port of Elizabeth until it ceased operations there on February 23, 2001. Pls.' Mot., Ex. 6. On March 21, 2001, NPR filed for bankruptcy protection and failed to pay its withdrawal liability. On May 3, 2001, NPR requested arbitration of issues relating to its withdrawal liability. On November 21, 2002, NPR formally withdrew its request to arbitrate the issues related to its withdrawal liability. Pls.' Reply, Ex. 3.
On November 29, 2001, the plaintiffs and the Fund entered into a settlement agreement, and the plaintiffs paid the Fund $15,896,086.00 to satisfy NPR's withdrawal liability. As a part of that agreement, the Fund assigned its rights against NPR to the plaintiffs. Compl. ¶ 14; Pls.' Mot., Ex. B.
Orchard Hill is a Pennsylvania corporation that was in the business of developing construction. Pls.' Mot., Ex. 2 at 85. Leo Holt, Thomas Holt, Jr., and Michael Holt, the sons of Holt, Sr., owned Orchard Hill from February 1, 1993 until August 1, 2000. In 1996, Orchard Hill employed multiple managers, supervisors, and subcontractors. Since August 1, 2000, Holt, Sr. has held 100% of the stock in Orchard Hill. Pls.' Mot., Ex. 7; Def.'s Opp., Ex. C; Pls.' Reply, Ex. 5 at 312-14.
Holt, Sr. testified that Orchard Hill stopped operating in 1998 or 1999. In the year 2000, Orchard Hill was a dormant company. One of Orchard Hill's last construction contracts was the Kaighn Point Project. Holt Hauling and Warehousing ultimately took over the project, because Orchard Hill lacked the financial resources to finish the job. Def.'s Opp., Ex. D at 191, 198-99; Pls.' Reply, Ex. 5 at 199-200.
The plaintiffs moved for summary judgment on the ground that Orchard Hill was under common control with NPR pursuant to ERISA, 29 U.S.C. § 1301(b), and is therefore responsible for the withdrawal liability incurred by NPR. Orchard Hill argues that there are issues of fact as to: 1) the date of NPR's withdrawal from the Fund; and 2) ...