Appeal from the United States District Court for the Northern District of California. D.C. No. CV-93-00489-DLJ. D. Lowell Jensen, District Judge, Presiding.
Before: William A. Norris, Robert R. Beezer, and Stephen S. Trott, Circuit Judges.
This case arises from an action filed on February 9, 1993, by the Bay Area Laundry and Dry Cleaning Pension Trust Fund against Ferbar Corp. and Stephen J. Barnes ("Ferbar") to collect withdrawal liability under 29 U.S.C. §§ 1381-1461, the Multi-Employer Pension Plan Amendments Act of the Employee Retirement Income Security Act. The district court granted summary judgment for Ferbar on the ground that the Fund's suit for withdrawal liability was barred by the applicable statute of limitations set forth in 29 U.S.C. § 1451(f). This statute provides in relevant part:
§ 1451. Civil Actions . . .
(f) Time limitations. An action under this section may not be brought after the later of -
(1) 6 years after the date on which the cause of action arose, or
(2) 3 years after the earliest date on which the plaintiff acquired or should have acquired actual knowledge of the existence of such cause of action; . . . .
29 U.S.C. § 1451(f). The district court applied the three-year statute of limitations set forth in § 1451(f)(2), but in the alternative held that the action would nevertheless be barred under the six-year statute of limitations set forth in § 1451(f)(1), reasoning that the cause of action arose on the date that Ferbar missed its first withdrawal liability installment payment. On appeal the parties contest, first, whether the three-year or the six-year period applies, and second, the date on which the limitations period began to run.
In March, 1985, Ferbar effected a complete withdrawal from the Fund. On December 12, 1986, the Fund sent Ferbar a notice assessing a withdrawal liability obligation of $45,580.80. The notice provided that Ferbar could pay off its withdrawal liability in one of two ways: (1) it could either make a single lump-sum payment of the total liability no later than 60 days after receipt of the demand, or (2) it could begin making installment payments according to a schedule established by the Fund, with the first payment due on February 1, 1987. Ferbar did not pay the first installment, but rather on February 27, 1987, exercised its right to request review of the assessment by the Board of Trustees. On April 14, 1987, the Fund notified Ferbar that Ferbar's first payment was delinquent, and informed Ferbar that it had 60 days from the notice to cure the delinquency, or it would be considered in default. Ferbar did not cure its delinquency.
APPLICABLE LIMITATIONS PERIOD
The district court held that the Fund's action was time-barred because it was filed more than three years after the Fund acquired knowledge of the cause of action, citing § 1451(f)(2). The Fund argues that the action could not be ...