withdrawal from the plan. As stated above, plaintiffs notified defendant Cullman by letter dated October 22, 1985 that it owed the Plan $ 48,612.00. Plaintiffs also established a schedule for three quarterly payments beginning December 21, 1985.
Once the employer receives its notice, it has ninety days to identify inaccuracies and to request that the sponsors review their determination. 29 U.S.C. § 1399(b)(2)(A). Cullman received notification on October 29, 1985. Defendant's time to request a review expired on January 26, 1986. At that time, defendant had not made any request for review. Defendant's letter requesting information about the possible overpayment which plaintiffs' accountant allegedly discovered in March, 1986, was well after the statutory period had expired. Moreover, plaintiffs' files indicate that Cullman had under-reported hours and owed the Plan a small additional sum.
Finally, defendant failed to initiate arbitration pursuant to 29 U.S.C. § 1401(a)(1). Section 1401(b)(1) of the MPPAA explicitly states that "if no arbitration proceeding has been initiated . . . the amounts demanded by the plan sponsor under section 1399(b)(1) . . . shall be due and owing on the schedule set forth by the plan sponsor." Thus, Cullman's failure to initiate arbitration results in its being liable for the amount of withdrawal liability. Since the defendant failed to make any payments it is in default, see 29 U.S.C. § 1399(c)(5)(A), and the entire amount of withdrawal liability owed plus interest on the outstanding total from the date of the first missed payment is due immediately. 29 U.S.C. § 1399(c)(5)(A).
Defendant claims, however, that under the Court of Appeals decision in 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), arbitration is not necessary when it will not promote judicial economy. This argument is misplaced and attempts to stretch the narrow holding of Stockton far beyond its scope. Moreover, many employers have similarly tried to extend Stockton only to be rebuffed time and time again. See Clinton Engines, No. 85-2877, slip op. at 4 (D.D.C. Apr. 28, 1986).
The plaintiff in Stockton filed a claim in federal district court without first initiating arbitration. However, unlike in the present case, the statutory time limit to initiate arbitration had not run. Thus, the district court, having a choice of two possible fora, decided to retain the case and rule on the question of law before it. Stockton, 727 F.2d at 1206-07. The Court of Appeals upheld the district court's declining to refer the case to arbitration. Id. at 1207.
The issue in Stockton does not arise in this case since Cullman never initiated arbitration, and the statutory limit has long since passed. Thus, this Court is not faced with a choice of fora, and defendant's judicial economy argument is unavailing. In addition, the defendant will not be permitted to reshape Stockton to support its total disregard for the MPPAA's requirements for resolving withdrawal liability disputes. Defendant had a clear and unequivocal duty to attempt to resolve liability disputes through arbitration. It did not heed the command of the MPPAA and as a consequence is liable to plaintiff.
c. Defendant ignored the MPPAA's requirements for resolution of disputed withdrawal liability and, as a result, has forfeited its right to contest the amount owed to plaintiff. Accordingly, defendant's counterclaim must be dismissed.
Defendant filed a counterclaim in this action for the amount of overpayment, if any, it made to the Plan. This counterclaim appears to be little more than defendant's attempt to skirt the dispute resolution provisions of the MPPAA. This Court, in accordance with the law of this circuit, will not permit defendant to avoid its statutory duty to invoke the resolution procedures, nor will it allow defendant to question the amount of its withdrawal liability.
The Court of Appeals has held that the withdrawal liability provisions of the MPPAA do not violate substantive or procedural due process. Washington Star Co. v. International Typographical Union Negotiated Pension Plan, 727 F.2d 1502, 1511 (D.C. Cir. 1984). Thus, it is clear that the defendant must utilize the procedure set forth in the statute and resolve disputes through arbitration. Where, as in this case, the defendant has failed to follow the requirements of the MPPAA, it forfeits its right to question the Plan sponsors' determination of the amount of withdrawal liability owed. 29 U.S.C. § 1401(b)(1); Western Coal Corp., 611 F. Supp. at 921; Adkins & Adkins Coal Co., 597 F. Supp. at 126. Consequently, defendant cannot come before this Court by way of its counterclaim and attempt to assert the same right which it forfeited under the MPPAA. See Combs v. Pelbro Fuel, Inc., No. 83-1524, slip op. at 14 (D.D.C. Nov. 15, 1984). Even if defendant's counterclaim were properly before the Court, it is questionable whether the counterclaim conforms with the requirement of Fed. R. Civ. P. 8(a)(2) that it contain "a short and plain statement of the claim showing that the pleader is entitled to relief". The facts as the Court understands them show that defendant has underpaid rather than overpaid amounts owed to the Plan. For these reasons, defendant's counterclaim must be dismissed.
In short, the Court finds that there is no genuine issue of material fact and that plaintiffs are clearly entitled to judgment as a matter of law. Accordingly, plaintiffs' motion for summary judgment must be granted. Also, defendant's counterclaim must be dismissed since it has forfeited its right to dispute the amount of withdrawal liability.
Plaintiffs are entitled to judgment in the amount of $ 48,612.00 which represents the amount of unpaid contributions defendant Cullman owes the Plan. In addition, plaintiffs are entitled to the other relief mandated by 29 U.S.C. § 1132(g)(2) and must submit claims for the amounts due within 30 days of this Opinion. Defendant shall respond to plaintiffs' claims within the time specified in the Federal Rules of Civil Procedure and the Local Rules. An Order in accordance with the foregoing shall issue of even date herewith.
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