recover delinquent contributions. On the other hand, 29 U.S.C. §§ 1132(g)(1), 1451(e), and 1401(d) in combination indicate that the Court's award of costs, expenses and fees is discretionary in an action such as this one unless the "employer fails to make timely payment in accordance with [the arbitrator's] final decision," § 1401(d) (emphasis added). Accordingly, plaintiffs' request for penalty interest, attorneys' fees and costs under 29 U.S.C. § 1132(g)(2) will be denied without prejudice to renewal upon the effective date of the arbitrator's decision. An accompanying order will reflect this result. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 641 F. Supp.]
The Court has examined and considered the arguments offered in favor of and in opposition to plaintiffs' Motion for Summary Judgment, defendant's Motion to Compel Answer to Requests for Admission, and defendant's Motion for Stay Pending Arbitration. For the reasons stated in an accompanying Memorandum, it is this 23rd day of October, 1985, hereby
ORDERED: that defendant's Motion to Compel Answer to Requests for Admissions is DENIED; and it is further
ORDERED: that defendant's Motion for Stay Pending Arbitration is DENIED; and it is further
ORDERED and DECLARED: that plaintiffs' request for penalty interest, attorneys' fees and costs should be, and hereby is, DENIED without prejudice to renewal after the effective date of the arbitrator's decision; and it is further
ORDER, ADJUDGED and DECREED: that plaintiffs recover of the defendant, Dravo Corporation, all withdrawal liability installments that have or may, before the effective date of the arbitrator's decision, become payable under the Plan's payment schedule, together with interest thereon as calculated under 29 C.F.R. Part 2644 (1985); and it is further
ORDERED that counsel for the parties shall confer on or before October 30, 1985, in an effort to agree upon the amount due for interest on installment payments owed by defendant; and it is further
ORDERED that counsel for the parties shall appear at a status conference in Courtroom No. 3 at 9:30 A.M. on October 31, 1985.