Tampa Bay International Terminals, Inc. v. Tampa Maritime Ass'n—International Longshoremen's Ass'n Pension Plan & Trust , 73 F.3d 339 ( 1996 )

United States Court of Appeals
Eleventh Circuit.
No. 95-2776
Non-Argument Calendar.
TAMPA BAY INTERNATIONAL TERMINALS, INC., Plaintiff-Counter-
defendant-Appellee,
v.
TAMPA MARITIME ASSOCIATION—INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION PENSION PLAN AND TRUST, Defendant-Counter-claimant-
Appellant.
Jan. 23, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 93-1060-CIV-T-23B), Steven D. Merryday,
Judge.
Before TJOFLAT, Chief Judge, HATCHETT, Circuit Judge, and JOHNSON,
Senior Circuit Judge.
PER CURIAM:
Tampa Maritime Association-International Longshoremen's
Association Pension Plan and Trust ("Appellant") appeals the
district court's grant of summary judgment in favor of Tampa Bay
International Terminals ("Appellee"). Appellant asserted in a
letter to Appellee, dated May 28, 1993, that Appellee was an
employer subject to withdrawal liability under Section 3(5) of the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C.A. §§ 1001-1461 (West 1985 & Supp.1995), and demanded payment
of such withdrawal liability. Appellee filed an action seeking
declaratory judgment that it was not subject to withdrawal
liability on grounds that it was not an "employer" within the
meaning of ERISA as amended by the Multi-Employer Pension Plan
Amendments Act ("MPPAA"), 29 U.S.C.A. §§ 1381-1453 (West 1985 &
Supp.1995). Appellant answered and counterclaimed to collect
Appellee's alleged withdrawal liability. Both sides moved for
summary judgment, and the district court granted summary judgment
in favor of Appellee.
This appeal presents a straightforward question of law:
whether Appellee is an "employer" for purposes of ERISA, as amended
by the MPPAA, even though Appellee is not contractually obligated
to contribute to Appellant.
Appellant argues essentially that because Appellee bears some
of the hallmarks of a common law "employer," Appellee should be
considered an "employer" under the MPPAA. The definition of
"employer," however, is a matter of federal law. See Carriers
Containers Council v. Mobile S.S. Ass'n, 896 F.2d 1330, 1343 (11th
Cir.1990). In Carriers Containers, this Court adopted the
"contributing obligor" test for determining whether an entity is an
"employer" under the MPPAA. A "contributing obligor" is one who is
"obligated to contribute to a plan for the benefit of a plan's
participants." Id.
We are persuaded by the Eighth Circuit's application of the
"contributing obligor" test under circumstances nearly identical to
this case. See Seaway Port Authority of Duluth v. Duluth-Superior
ILA Marine Ass'n Restated Pension Plan, 920 F.2d 503 (8th
Cir.1990). In Seaway, the Eighth Circuit held that a party must be
contractually bound to make pension contributions in order to be an
"employer" under MPPAA. Id. at 509. We believe that this is the
best reading of Carriers Containers and is consistent with the
treatment that other Circuits have given to withdrawal liability
under ERISA as amended by MPPAA.
Accordingly, we conclude that this appeal is without merit.
AFFIRMED.