EINHORN v. PENN JERSEY BUILDING MATERIALS, INC. et al, No. 1:2012cv06891 - Document 108 (D.N.J. 2016)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 3/31/2016. (tf, )

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EINHORN v. PENN JERSEY BUILDING MATERIALS, INC. et al Doc. 108 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY -----------------------------------------------------------WILLIAM J . EINHORN, Adm inistrator of the Team sters Pension Trust Fund of Philadelphia and Vicinity, : Hon. J oseph H. Rodriguez : Civil Action No. 12-6891 Plaintiff, : v. : PENN J ERSEY BUILDING MATERIALS, INC., AGATE CONSTRUCTION CO., INC., TUCKAHOE SAND & GRAVEL CO., INC., and EASTERN TRANSIT MIX, : : : Defendants. : -----------------------------------------------------------PENN J ERSEY BUILDING MATERIALS, INC., Third-Party Plaintiff, : : v. : TEAMSTERS UNION LOCAL NO. 676, HOWARD W. WELLS, J IM BENNETT, ERNEST CLEMENTS, ED PEARCE, ROY KAISER, TOM LYON, PASQUALE BELLO, and J OHN DOES 1-10 , : OPIN ION : : Third-Party Defendants. -----------------------------------------------------------This is an action arising under Sections 50 2(a)(3), (e)(1) and (f), and 430 1(c), 29 U.S.C. §§1132(a)(3), (e)(1) and (f), and 1451(c) of the Em ployee Retirem ent Incom e Security Act of 1974 (“ERISA”). Presently before the Court are several m otions seeking sum m ary judgm ent. Plaintiff William J . Einhorn (“Einhorn”) com m enced this action to, 1 Dockets.Justia.com inter alia, collect withdrawal liability in the am ount of $ 961,281.59, as determ ined under Section 420 1 of ERISA, 29 U.S.C. §1381. I. Backgro u n d The Am ended Com plaint seeks liability against Defendants Penn J ersey Building Materials, Inc., Agate Construction Co., Inc., Tuckahoe Sand and Gravel Co., Inc., Eastern Transit Mix, J ohnston Enterprises, Inc., Dial Block, Inc., J ohnston Realty, ELJ Realty, (collectively the “com pany Defendants”) and J am es E. J ohnston, J r. Plaintiff Einhorn is the Adm inistrator of the Team sters Pension Trust Fund of Philadelphia and Vicinity (the “Plan”) and a fiduciary of the Plan within the m eaning of Section 3(21)(A) of ERISA, 29 U.S.C. § 10 0 2(21)(A). The Plan is a m ultiem ployer pension plan within the m eaning of Sections 3(37) and 40 0 1(a)(3) of ERISA, 29 U.S.C. §§10 0 2(37) and 130 1(a)(3), and an “em ployee pension benefit plan” within the m eaning of Sections 3(2)(A) and (3) of ERISA, 29 U.S.C. §§10 0 2(2)(A) and (3), established and m aintained for the purpose of providing retirem ent and related benefits to eligible participants and beneficiaries, and subject to the withdrawal liability provisions of ERISA. With the exception of J am es E. J ohnston, J r. (“J ohnston”), there is no dispute that the com pany Defendants are em ployers within the m eaning of Section 3(5) of ERISA, 29 U.S.C. § 10 0 2(5). In all, there are eight com panies that are part of a control group owned by J ohnston. It is alleged that the Defendants incurred withdrawal liability when Agate Construction withdrew from or ceased to m ake contributions to the fund in 20 0 9. The Am ended Com plaint alleges that because Defendants are m em bers 2 of a “control group,” they are jointly and severally liable for the assessed withdrawal liability under ERISA Section 40 0 1(b) and 420 1(a), 29 U.S.C. §§130 1(b) and 1381(a). Defendant/ Third Party Plaintiff Penn J ersey initiated a Third Party action against Team sters Union Local 676 (the “Union” or “Local 676”). The Union and Penn J ersey have a long relationship and have been parties to a collective bargaining agreem ent since J une, 1999. In or about Novem ber 20 0 5, the Union and Penn J ersey engaged in negotiations for a new collective bargaining agreem ent to be effective for the period of April 1, 20 0 5 through April 30 , 20 0 8 (the relevant "CBA"). See Third Party Com p., ¶ 13. The Union was the "sole collective bargaining agent" for bargaining unit em ployees of Penn J ersey. Id. at ¶ 14. In negotiating pension contributions, which required Penn J ersey to continue to m ake contributions to the Plan, Penn J ersey claim s it expressed concern to the Union that there was unfunded liability with regard to the Plan. Id. at ¶ 15. In particular, Penn J ersey was concerned that by agreeing to the pension contribution provisions proposed by the Union, Penn J ersey would subject itself to liability should Penn J ersey, or a m em ber of the control group, withdraw from the Plan in the future. Id. at ¶ 16. According to the Third Party Com plaint, in an effort to alleviate the Penn J ersey's concerns, and to induce Penn J ersey into agreeing to the term s of the CBA, the Union represented that there was no unfunded liability with regard to the Plan and that "should the Em ployer withdraw from the Agreem ent in the future there will be no withdraw liability." (Exhibit A, CBA, pg. 16). Based upon these representations by the Union, Penn J ersey signed the CBA in Novem ber 20 0 5. Id. at ¶ 9. 3 It is undisputed that Penn J ersey withdrew from the Plan Fund in 20 0 9. The parties agree that the CBA expired on April 30 , 20 0 8. Pursuant to the term s of Section 7 of the CBA, Penn J ersey argues that there should not have been any "withdraw liability" based on Penn J ersey's withdrawal from the Plan because Section 7 provides for future withdrawal liability coverage that survives the expiration date. However, on or about Novem ber 6, 20 12, the Plan filed the instant action alleging that Penn J ersey and others are responsible for liability resulting from its withdrawal from the Plan in 20 0 9 and seeks $ 961,281.59, plus interest and liquidated dam ages. In the third party action, Penn J ersey denies any responsibility for the alleged withdrawal liability, and in the event that it is established that the Plan is owed m onies, seeks to establish contractual liability against the Union on grounds that the Union breached the term s of the CBA. Multiple parties m ove for sum m ary judgm ent on various grounds. First, Einhorn m oves for sum m ary judgm ent against the com pany Defendants and Defendant J ohnston, individually. Defendant Penn J ersey m oves for sum m ary judgm ent against the Third Party Defendant Local 676. Defendants Agate Construction Co., Inc., Dial Block, Inc., Eastern Transit Mix, ELJ Realty, J ohnston Enterprises, Inc., J ohnston Realty, J am es E. J ohnston, J r., Penn J ersey Building Materials, Inc., and Tuckahoe Sand & Gravel Co., Inc. m ove for Partial Sum m ary J udgm ent against Einhorn as to the claim s plead in Count IX against J ohnston. Finally, Third Party Defendant Local 676 m oves for sum m ary judgm ent against the Third Party Plaintiff Penn J ersey on the ground that any obligation for withdrawal liability expired with the CBA on April 30 , 20 0 8. 4 II. Su m m ary Ju d gm e n t Stan d ard Federal Rule of Civil Procedure 56(a) generally provides that the “court shall grant sum m ary judgm ent if the m ovant shows that there is no genuine dispute as to any m aterial fact” such that the m ovant is “entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). Such a showing m ust be supported by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). A “genuine” dispute of “m aterial” fact exists where a reasonable jury’s review of the evidence could result in “a verdict for the non-m oving party” or where such fact m ight otherwise affect the disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts, however, will fail to preclude the entry of sum m ary judgm ent. Id. In evaluating a m otion for sum m ary judgm ent, the court m ust view the evidence in the light m ost favorable to the non-m oving party, and m ust provide that party the benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378 (20 0 7); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 20 14). Any such inferences “m ust flow directly from adm issible evidence[,]” because “‘an inference based upon [ ] speculation or conjecture does not create a m aterial factual dispute sufficient to defeat sum m ary judgm ent.’” Halsey, 750 F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360 , 382 n.12 (3d Cir. 1990 ) (citing Anderson, 477 U.S. at 255)). Accordingly, the m oving party initially has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 5 (1986). Once the m oving party has m et this burden, the non-m oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Again, to withstand a properly supported m otion for sum m ary judgm ent, the non-m oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statem ents . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The m ovant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 6 249 (1986). Credibility determ inations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). III. D is cu s s io n The four m otions for sum m ary judgm ent have several overlapping issues. Although Einhorn m oves for sum m ary judgm ent against all Defendants, both Einhorn and Defendant J ohnston argue for sum m ary judgm ent as to Count IX in the Am ended Com plaint. Likewise, the com peting m otions for sum m ary judgm ent of Penn J ersey and Local 676, as to the Third Party Com plaint, require a determ ination on the viability of the CBA. As a result, the m otions will be addressed sim ultaneously. A. Mo tio n fo r Su m m ary Ju d gm e n t by W illiam J. Ein h o rn [ 8 9 ] an d Mo tio n fo r Partial Su m m ary Ju d gm e n t by D e fe n d an ts Pe n n Je rs e y Bu ild in g Mate rials , In c., Agate Co n s tru ctio n Co ., In c., Tu ckah o e San d an d Grave l Co ., In c., Eas te rn Tran s it Mix, Jo h n s to n En te rp ris e s , In c., D ial Blo ck, In c., Jo h n s to n Re alty, ELJ Re alty, an d Jam e s E. Jo h n s to n , Jr.[ 9 1] Einhorn m oves for sum m ary judgm ent against each Defendant. Counts I-VIII of the Am ended Com plaint are plead against Defendants Penn J ersey Building Materials, Inc., Agate Construction Co., Inc., Tuckahoe Sand and Gravel Co., Inc., Eastern Transit Mix, J ohnston Enterprises, Inc., Dial Block, Inc., J ohnston Realty, and ELJ Realty, respectively. Count IX is plead against J am es E. J ohnston, J r., individually and Einhorn also m oves for sum m ary judgm ent as to this count. In a separate m otion, Defendant J ohnston seeks partial sum m ary judgm ent against Einhorn, as to Count IX. a. Counts I-VIII, as plead against Defendants Penn J ersey Building Materials, Inc., Agate Construction Co., Inc., Tuckahoe Sand and Gravel Co., Inc., Eastern Transit Mix, J ohnston Enterprises, Inc., Dial Block, Inc., J ohnston Realty, and ELJ Realty 7 Sum m ary J udgm ent is granted in favor of Einhorn as to Counts I-VIII of the Am ended Com plaint. Counts I-VIII seek liability against the eight defendant com panies that are part of the control group owned by J ohnston for withdrawal liability. During oral argum ent, Defendants conceded that sum m ary judgm ent is warranted as to these claim s because there is no dispute that the com pany Defendants are m em bers of a control group and are therefore jointly and severally liable for the assessed withdrawal liability under ERISA Sections 40 0 1(b) and 420 1(a), 29 U.S.C. §§130 1(b) and 1381(a). In addition, the com pany Defendants do not dispute the am ount of liability as $ 961,281.59. Defendants only seek indem nification from the Union, and that third party claim will be addressed infra. b. Count IX, as plead against J am es E. J ohnston, J r. Sum m ary judgm ent is denied as to Coun t IX. Count IX seeks liability against J ohnston individually on the theory that Mr. J ohnston is liable to the fund by virtue of his partnership interest in ELJ Realty and because he has personally engaged in activities which constitute a “trade or business” in “com m on control” with the withdrawing Defendants. Elaine J ohnston, Mr. J ohnston’s wife, owns Penn J ersey, and there is evidence in the record to suggest that Mr. J ohnston is a co-owner. Einhorn contends that this relationship renders a benefit to Mr. J ohnston because his negotiations have the effect of enriching Mrs. J ohnston, and by virtue of their m arriage and shared incom e, him self. Einhorn also argues that a direct benefit is evidenced by virtue of Mr. J ohnston’s ownership interest in ELJ Realty. The parties dispute whether 8 Mr. J ohnston is an owner of ELJ Realty and if not, whether his alleged m arital benefit is a direct benefit sufficient to satisfy the exception for individual liability. J ohnston is being sued as an individual and Count IX seeks to establish liability for his role as an alleged owner in certain corporations and on an individual basis, apart from his responsibilities as a controlling shareholder or based upon ownership. The question of whether Mr. J ohnston can be held liable as an individual turns on whether he engaged in econom ic activities deem ed to constitute a “trade or business” as defined by ERISA. See Central States, SE and SW Areas Pension Fund v. Fulkerson, 238 F.3d 891, 895 (7th Cir. 20 0 1); 29 U.S.C. §130 1(b)(1). An individual deem ed a “trade or business” can be subject to withdrawal liability if the individual acting as a “trade or business” is under com m on control with the withdrawing em ployer. Id. ERISA im putes withdrawal liability upon an “em ployer” when there is a full or partial withdrawal from a m ulti-em ployer pension plan. 29 U.S.C. § 1381(a). The reach of the withdrawal liability extends to all “trades or businesses (whether or not incorporated) which are under com m on control” with the withdrawing em ployer. 29 U.S.C. § 130 1(b)(1).1 As a result, if J ohnston is found to be “trade or business” and under “com m on control” with the withdrawing em ployer, he is jointly and severally liable for withdrawal liability. Id. In other words, J ohnston m ust have engaged in an unincorporated trade or business separate from his activities as owner of 1 The common control provisions under § 1301(b) explicitly do not apply to individuals, but only to “trades or businesses.” 29 U.S.C. § 1301(b); Brown v. Astro Holdings, Inc., 385 F.Supp.2d 519, 533 (E.D.Pa. 2005). 9 the defendant corporation(s). See Central States, Southeast and Southwest Areas Pension Fund v. White, 258 F.3d 637, 640 (7th Cir. 20 0 1). There are disputed questions of fact that preclude sum m ary judgm ent at this stage. Specifically, whether and to what extent J ohnston m ay have participated as a “trade or business” for the benefit of the control group. J ohnston claim s that the undisputed evidence in the record establishes he did not engage in any activities on behalf of an unincorporated trade or business. See Reinfeld Cert. ¶3, Exh. B, J ohnston, J r. Dep. at 24:12-16. There is evidence in the record that dem onstrates that Mr. J ohnston is the owner of Defendants Agate Construction, Tuckahoe Sand and Gravel, Eastern Transit Mix, Dial Block, Inc., and J ohnston Realty and that he perform ed consulting services for Penn J ersey, which is owned his wife. See id. at 16:4-20 :11; 38:920 . J ohnston testifies that he did not receive any com pensation, benefits in the form of insurance coverage, or other perks for his consulting services on behalf of Penn J ersey. Id. at 67:16-19; 70 :10 -13. He also states that he was not engaged in any unincorporated trade or com pany and he denied the sam e in deposition. See id. at 4:12-16. J ohnston also denies owning any com m ercial property or property for which any com pany that he or his wife owns, operates out of. Id. at 54:1-4. J ohnston states that neither he nor his wife has ever received rental incom e from any the buildings or equipm ent that are used by any of the defendant com panies. Id. 54:5-55:1. As a result, J ohnston claim s that all of his “trade or business” activities were directly tied to com panies in which he or his wife had an ownership interest. Id. at 16:4-20 :11. 10 However, there is also evidence in the record that suggests that for the docum ented tim e period of 20 0 7-20 11, J ohnston listed ELJ Realty on his tax returns as a partnership from which receives rental/ lease incom e. Pl. Counter Stat. Facts, ¶¶ 12-14. In addition, during his deposition, J ohnston gave inconsistent statem ents regarding the ownership of ELJ realty. Plaintiff cites to J ohnston’s deposition testim ony on October 17, 20 14 where he states that he and his wife each enjoy 50 % ownership in the com pany. J ohnston Oct. 17, 20 14 Dep., pp. 23:21-34:3. Then on April 7, 20 15, J ohnston testified in deposition that his wife owns 10 0 % of ELJ Realty. J ohnston April 7, 20 15 Dep., pp. 11:18-12:6. Given the nature of the factual disputes in the record that relate squarely to J ohnston’s alleged “trade or business” activities, sum m ary judgm ent is denied at this tim e. B. Penn J ersey Building Materials, Inc.’s Motion For Sum m ary J udgm ent Against Third Party Defendant Team sters [90 ] and Motion For Sum m ary J udgm ent By Team sters Union Local No. 676 [92] Both Penn J ersey and Local 676 m ove for sum m ary judgm ent as to the Third Party Com plaint. The Third Party Com plaint pleads four counts against Local 676. Count I alleges a breach of the CBA and states, “[s]hould the Pension Fund be able to establish that Penn J ersey’s withdrawal from the Pension Fund resulted in withdrawal liability, such a finding would constitute a breach of the CBA by the Union and would be in violation of § 30 1 of the Labor Managem ent Relations Act, 29 U.S.C. §185.” Count II dem ands indem nification from the Union for any liability arising out of its withdrawal 11 from the Plan. Count III alleges fraud and Count IV alleges negligent m isrepresentation. Penn J ersey m oves for partial sum m ary judgm ent as to Counts I and II only. Third Party Defendant Local 676 seeks sum m ary judgm ent on grounds that it did not breach the CBA. Local 676 alleges that the CBA expired on April 30 , 20 0 8 prior to the withdrawal, therefore, there is no breach.2 See St Mt. Facts, ¶ ¶61, 78. In opposition, Penn J ersey argues that Section 7 of the CBA survives the expiration date and provides lifetim e or extended coverage for withdrawal liability. It is undisputed that in or about Novem ber 20 0 5, Local 676 and Penn J ersey engaged in negotiations for a new collective bargaining agreem ent effective April 1, 20 0 5 through April 30 , 20 0 8. St Mt. Facts, ¶61. However, Penn J ersey claim s that during negotiations, it expressed concern to Local 676 that there was unfunded liability with regard to the Plan. Th. Party Com pl., ¶ 15. Penn J ersey’s concern related to the potential for withdrawal liability should Penn J ersey withdraw from the Plan in the future. Id. at ¶ 16. Penn J ersey claim s that Local 676 assuaged this concern by representing that there was no unfunded liability with regard to the Plan, and added language in Section 7 stating that "should the Em ployer withdraw from the Agreem ent in the future there will be no withdraw liability." Id., Exhibit A, CBA, pg. 16. Local 676 disputes discussing the m eaning and/ or the intent of the language of Section 7 during the negotiation period. The parties agreed to adopt the CBA, including the following provision: 2 At oral argument, Local 676 withdrew its alternative argument that summary judgment is warranted because Penn Jersey failed to invoke its arbital remedy under the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1381. 12 Section 7 This Agreem ent is being executed based upon the understanding that there is no unfounded (sic) pension liability with regard to the “Red Circle” Pension Fund. Therefore, should the Em ployer withdraw from the Agreem ent in the future there will be no withdraw liability. St. Mt. Facts, Exhibit F at ¶¶ 16, 78. Penn J ersey signed the CBA in Novem ber, 20 0 5. Th. Party Com pl. at ¶ 9. In support of its m otion, Penn J ersey argues that it never had any discussions with Local 676 as to the m eaning of the language contained in Section 7. St. Mt. Facts, ¶76. The CBA expired, by its term s, on April 30 , 20 0 8. Id. at ¶79. In 20 0 8, Penn J ersey ceased m aking contributions to the Fund and, in 20 0 9, a m em ber of the Penn J ersey control group, Defendant Agate Construction Co., Inc., also ceased m aking contributions to the Fund. Id. at ¶¶ 81, 82; Th. Party Com pl. at ¶ 17. There is no dispute as to the withdrawal tim eline. Penn J ersey denies any responsibility for the alleged withdrawal liability and claim s that Local 676 breached the term s of the CBA, specifically Section 7. Penn J ersey argues that the clear and unam biguous language of Section 7 of the CBA relieves it of the obligation to m ake withdrawal liability paym ents to the Pension Fund. St. Mt. Facts, ¶86. In addition, Penn J ersey argues that, as a m atter of law, Local 676 breached its duty to indem nify Penn J ersey for the assessm ent of withdrawal liability and that the breach shifts the responsibility for withdrawal liability paym ents onto Local 676. Id. In essence, Penn J ersey seeks coverage in perpetuity, nam ely coverage that extends beyond the expiration of the CBA, for withdrawal liability. 13 Local 676 argues that because the CBA expired in April of 20 0 8, by its express term s, Penn J ersey and the other Defendants as m em bers of the control group are responsible for the withdrawal liability. Penn J ersey presents two alternative theories with respect to Section 7. First, it argues that this Court’s March 31, 20 14 decision on the Motion for J udgm ent on the Pleadings is the law of the case rendering Section 7 am biguous. Th.Party Pl. Brief at p.13. On the other hand, Penn J ersey argues that the language of Section 7 is clear and unam biguous and contem plates future benefits. St. Mt. Facts, ¶86. Both argum ents fail in light of the Suprem e Court’s decision in M & G Polym ers USA, LLC v. Tackett, 135 S. Ct. 926, 190 L. Ed. 2d 80 9 (20 15).3 Pursuant to the CBA expiration/ durational clause, Local 676 and Penn J ersey were not in prvity of contract when Penn J ersey and/ or Agate withdrew from the Plan. As a result, Local 676 did not breach the term s of the CBA. Sum m ary judgm ent is granted in favor of Local 676. In M & G Polym ers the Suprem e Court reaffirm ed that courts m ust apply ordinary contract law principles to interpret collective-bargaining agreem ents, to the extent that such application is “not inconsistent with federal labor policy.” M & G Polym ers, 135 S. Ct. at 929 (citing Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 456– 457, 77 S.Ct. 912, 1 L.Ed.2d 972.)) “When a collective-bargaining agreement is unam biguous, its m eaning m ust be ascertained in accordance with its plainly expressed intent.” Id. (citing 11 R. Lord, Williston on Contracts § 30 :6, p. 10 8. P. 933). One such 3 The law of the case doctrine is inapplicable here, as the March 31, 2014 decision pre dates the Supreme Court’s decision in M & G Polymers, 135 S. Ct. 926. In addition, the present motion presents a different standard of review. See Corliss v. Vamer, 247 Fed. Appx. 353, 354 (3d Cir. 2007) (citations omitted). 14 principle rem inds that “contractual obligations will cease, in the ordinary course, upon term ination of the bargaining agreem ent.” Id. at 930 (quoting Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. NLRB, 50 1 U.S. 190 , 20 7 (1991)) (internal quotation m arks om itted). The parties m ay, however, explicitly contract to ensure that certain rights are not extinguished by an expiration/ durational clause. Id. (citing Litton, 50 1 U.S. at 20 7) (citations om itted)). There is no evidence in the record to support an agreem ent by the parties to extend the relief allegedly bestowed by Section 7 beyond April 30 , 20 0 8. Application of ordinary contract law principles councils against a finding that Section 7 survives the durational clause for the CBA under either of Penn J ersey’s theories. First, the language of the CBA, contains an expiration clause which Section 7 does not clearly or unam biguously abridge. See Bd. Of Trustees, Sheet Metal Workers’ Nat. Pension Fund v. Caddo Sheet Metal, LLC, No. 1:14-CV-858, 20 15 WL 40 320 37, at *2-3 (E.D. Va. J une 30 , 20 15) (citing M & G Polym ers, 135 S.Ct. at 933 (quoting 11 R. Lord, Williston on Contracts § 30 :6, p. 10 8 (4 th ed. 20 12) (Williston)); accord Keffer v. H.K. Porter Co., 872 F.2d 60 , 62 (4 th Cir.1989) (“[A]s with any contract interpretation, we begin by looking at the language of the agreem ent for any clear m anifestation of the parties’ intent.”)). “When the intent of the parties is unam biguously expressed in the contract, that expression controls, and the court's inquiry should proceed no further. But when the contract is am biguous, a court m ay consider extrinsic evidence to determ ine the intentions of the parties.” M & G Polym ers, 135 S. Ct. at 938 (Ginsburg, J ., concurring) (citations to 11 Williston §§ 30 :6– 7 om itted). “To determ ine what the 15 contracting parties intended, a court m ust exam ine the entire agreem ent in light of relevant industry-specific ‘custom s, practices, usages, and term inology.’” Id. at 937– 38 (Ginsburg, J ., concurring) (quoting 11 Williston § 30 :4, at 55– 58)). The unam biguous language of Section 7 does not extend withdrawal liability coverage beyond the durational clause of the CBA. In addition, there is no language to suggest that this clause is an indem nification clause, as the word “indem nification” is absent. In the absence of clear language, Section 7 does not survive the expiration of the CBA. “Em ployer obligations and em ployee rights, under a collective bargaining agreem ent, do not survive the expiration of the agreement absent a clear intention of the parties.” Dewhurst v. Century Alum inum Co., 649 F.3d 287, 292 (4 th Cir. 20 11) (citation and internal quotation m arks om itted). A plain reading of the Section 7 does not clearly or unam biguously extend withdrawal liability beyond the expiration date. The phrase “should the Em ployer withdraw from the Agreem ent in the future there will be no withdraw liability” on its own does not save Section 7 from expiration or constitute a “survivability clause[.]” See Caddo Sheet Metal, LLC, No. 1:14-CV-858, 20 15 WL 40 320 37, at *5-6; see also Int'l Union, United Auto., Aerospace & Agr. Im plem ent Workers of Am ., U.A.W. v. Skinner Engine Co., 188 F.3d 130 , 141 (3d Cir. 1999) (holding that “a plain reading of the phrases, “will continue” and “shall rem ain,” certainly does not unam biguously indicate that the benefits will continue ad infinitum [… and that] [i]t cannot be said that the phrases clearly and expressly indicate vesting since there is sim ply no durational 16 language to qualify these phrases [or that] the benefits “will continue for the life of the retiree,” or that they “shall rem ain unalterable for the life of the retiree.”). Moreover, M & G Polym ers directs “when a con tract is silent as to the duration of retiree benefits, a court m ay not infer that the parties intended those benefits to vest for life.” M & G Polym ers, 135 S. Ct. at 936-37. For these reasons, Penn J ersey’s argum ent that the phrase “in the future” is rendered meaningless if not construed to contem plate an extension of Section 7 has been rejected. Much like the clause construed in Caddo Sheet Metal, the language in Section 7 is not “m eaningless” if construed not to survive the CBA's expiration.” Caddo Sheet Metal, LLC, No. 1:14-CV-858, 20 15 WL 40 320 37, at *5. Because the clause “has som e significance during the term of the agreem ent, the Suprem e Court [holds] it is by definition not illusory[.]” Id. (citing M & G Polym ers, 135 S. Ct. at 936). A sim ilar conclusion was reached by the Sixth Circuit in Gallo v. Moen, Inc., 813 F.3d 165 (6 th Cir. 20 16). Applying the adm onitions in M & G Polym ers, the Moen Court stated that “[if M & G Polym ers] tells us anything, however, it is that the use of the future tense without m ore—without words com m itting to retain the benefit for life— does not guarantee lifetim e benefits.” Moen, 813 F.3d at 272 (citing M & G Polym ers, 135 S. Ct. at 937). Like Moen, Section 7 appears to prom ise withdrawal liability coverage “until som e point in the future, but they do not say what that point is.” Id. at 271. As a result, even if the language is am biguous, construction of the CBA according to the dictates of M & G Polym ers, com pels the conclusion that Section 7 does not survive the 17 expiration of the CBA, given the lack of express language to the contrary and the expiration contained in the durational clause. For this reason, Penn J ersey’s alternative claim that the language is am biguous also fails. In addition to a lack of evidence in the record suggesting such an extension was agreed upon, the Suprem e Court directs that “courts should not construe am biguous writings to create lifetim e prom ises.” M & G Polym ers, 135 S. Ct. at 936-37 (citing 3 A. Corbin, Corbin on Contracts § 553, p. 216 (1960 ) (explaining that contracts that are silent as to their duration will ordinarily be treated not as “operative in perpetuity” but as “operative for a reasonable tim e” (internal quotation m arks om itted)). As a result, there is no genuine issue as to any m aterial fact based on the language of the CBA. Pursuant to the CBA's durational clause, Local 676 did not have any contractual obligations to Penn J ersey and, by reference the Plan, when Agate withdrew from the Plan in 20 0 9. IV. Co n clu s io n For the reasons set forth above, and those m ade on the record during the hearing on February 11, 20 16, Plaintiff William J . Einhorn’s Motion for Sum m ary J udgm ent is granted in part as to Counts I-VIII and denied in part as to Count IX. The Motion for Partial Sum m ary J udgm ent as to Count IX of Defendants Penn J ersey Building Materials, Inc., Agate Construction Co., Inc., Tuckahoe Sand and Gravel Co., Inc., Eastern Transit Mix, J ohnston Enterprises, Inc., Dial Block, Inc., J ohnston Realty, ELJ Realty, and J am es E. J ohnston, J r. is denied. With respect to the Third Party Com plaint, 18 Penn J ersey Building Materials, Inc.’s Motion for Partial Sum m ary J udgm ent as to Counts I and II is denied and Local No. 676’s Motion for Sum m ary J udgm ent is granted. An appropriate order shall issue. Dated: March 31, 20 16 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 19

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