the rules promulgated by the American Arbitration Association, with certain changes. Defendant objects most strenuously to the Plans' rule that arbitration will take place in Washington, D.C., if the employer is located less than 750 miles away, such as Western/Stockton. Gilleland Dec. Ex. 3, para. 6. The American Arbitration Association Rules, by contrast, provide that the parties shall mutually agree on a locale, or, in the absence of agreement, the Association will designate a locale for arbitration. Defendant Ex. B, para. 10. The Court cannot say that this imposes an unreasonable burden on defendant, particularly when defendant failed to raise an objection or to take any steps to comply with the Plans' rules after being notified that its written request for arbitration did not comply with the applicable procedures.
It is clear, therefore, that defendant failed to properly initiate arbitration. Therefore, defendant has "conceded the existence and amount of withdrawal liability owed to the Fund." Combs v. Adkins & Adkins Coal Co., 597 F. Supp. at 127. Accordingly, the Court finds that there are no material facts in dispute, and that plaintiffs are entitled to summary judgment.
Id.; Parsons, 5 E.B.C. at 2278-80; Ceazan, 559 F. Supp. at 1218.
THE APPLICATION OF THE MPPAA TO DEFENDANT DOES NOT VIOLATE DUE PROCESS
Before calculating defendant's withdrawal liability, the Court must briefly respond to defendant's constitutional argument. Citing no authority, Western/Stockton contends that the MPPAA's requirements that it accept and pay the Trustees' determination of withdrawal liability, without an opportunity to be heard, deprives it of Due Process of law. This exact claim has been rejected by the Court of Appeals for this Circuit. Washington Star Co. v. International Typographical Union Negotiated Pension Plan, 235 U.S. App. D.C. 1, 729 F.2d 1502, 1511 (D.C. Cir. 1984). Accord, Republic Industries, Inc. v. Teamsters Joint Council No. 83 of Virginia Pension Fund, 718 F.2d 628, 639-42 (4th Cir. 1983), cert. denied, 467 U.S. 1259, 104 S. Ct. 3553, 82 L. Ed. 2d 855 (1984). In light of these holdings, the Court need not give further consideration to defendant's contention. Western/Stockton has not been deprived of Due Process.
PLAINTIFFS ARE ENTITLED TO THE ASSERTED WITHDRAWAL LIABILITY
Western/Stockton has not paid any of its withdrawal liability, and accordingly is in default under section 4219(c)(5) of ERISA, 29 U.S.C. § 1399(c)(5). The entire amount of its withdrawal liability is now due and owing. Id.; see also id. § 1401(b)(1).
Defendant contends that 29 U.S.C. § 1405 governs the calculation of withdrawal liability for Western/Stockton. This contention is incorrect. The Plans are covered by section 404(c) of the Internal Revenue Code, 26 U.S.C. § 404(c). Gilleland dec. para. 3; Combs v. Adkins & Adkins Coal Co., 597 F. Supp. at 128. ERISA provides that 29 U.S.C. § 1405 does not apply to a plan covered under section 404(c) of the Internal Revenue Code. 29 U.S.C. § 1391(d)(2). Accordingly, 29 U.S.C. § 1405 does not apply, and 29 U.S.C. § 1132(g), used by the Plans in their calculations of defendant's liability, governs Western/Stockton's liability.
Under ERISA section 502(g)(2), 29 U.S.C. § 1132(g)(2), the Court must award plaintiffs:
(A) the unpaid contributions,