of Motion for Summary Judgment (Defendants' Mem.) at 8 n.5 (filed Dec. 31, 1985). In August, 1983, the Trustees demanded all past due withdrawal liability payments and indicated that if payment was not made by the date specified, defendants' entire withdrawal liability would be due without further demand. Defendants have not made any withdrawal liability payment. The Trustees thus filed a complaint in this Court for the payments alleged to be due. The action is now before the Court on the parties' cross-motions for summary judgment, both filed Dec. 31, 1985.
The Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), Pub. L. 96-364, 94 Stat. 1208 (1980), added subtitle E to Title IV of ERISA. The MPPAA establishes withdrawal liability for employers that cease participation in a multiemployer pension plan, as well as means for computing that liability. Complete withdrawal from a multiemployer pension plan occurs when an employer either permanently ceases to have an obligation to contribute under the plan or permanently ceases all operations covered under the plan. 29 U.S.C. § 1383. At the time that an employer withdraws from a plan, the plan is required by the MPPAA to determine the amount of the employer's withdrawal liability, and notify the employer of the amount. 29 U.S.C. § 1382.
ERISA provides for informal review of the withdrawal liability amount within 90 days of notice of, and demand for, the amount. 29 U.S.C. § 1399(b)(2). If the informal dispute resolution is unsuccessful, ERISA provides that "any dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 4201 through 4219 [ 29 U.S.C. §§ 1381-1399] shall be resolved through arbitration." 29 U.S.C. § 1401(a)(1). After completion of the arbitration proceedings and entry of the award, either party may bring an action in federal district court to enforce, vacate or modify the arbitrator's award. 29 U.S.C. § 1401(b)(2). It is undisputed that defendants did not initiate arbitration within the time specified under ERISA. Defendants' Mem. at 8 n.5.
Plaintiffs argue that failure to initiate arbitration precludes an employer from contesting either the fact or the amount of its withdrawal liability, citing Combs v. Western Coal Corp., 611 F. Supp. 917, 920-22 (D.D.C. 1985). Defendants argue that this Court may consider their challenge to plaintiffs' determination of withdrawal liability despite their failure to seek arbitration. Plaintiffs cite I.A.M. National Pension Fund Benefit Plan C v. Stockton Tri Industries, 234 U.S. App. D.C. 105, 727 F.2d 1204 (D.C. Cir. 1984). But, this Court has specifically recognized that Stockton creates only a narrow exception to the general requirement that parties seek arbitration under ERISA. The Grand Union Company v. The Food Employers Labor Relations Association and United Food & Commercial Workers Pension Fund, No. 85-1551, slip op. at 2-8 (D.D.C. Oct. 25, 1985). Here, the issues of whether the employer has completely withdrawn and if so, the amount of the liability, are quintessentially within the expertise of an arbitrator skilled in pension matters. Consequently, the narrow exception established by Stockton does not apply. Defendants' failure to seek arbitration now precludes them from seeking a determination by this Court that they have not completely withdrawn from the Plan under 29 U.S.C. § 1383(a).
Defendants primarily contest plaintiffs' attempt to hold defendant Mitchie Coleman personally liable for the withdrawal liability of B.M.C. Plaintiffs argue that Coleman fits the definition of "employer" set out in Title I of ERISA and thus should be personally liable in this action under Title IV. Title I provides that:
the term "employer" means any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan . . . .