The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
This is an ERISA action in which Plaintiff James T. Sullivan,
not individually, but as Trustee of Plumbers' Pension Fund, Local
130, U.A., Plumbers' Welfare Fund, Local 130, U.A., The Trust
Fund for Apprentice and Journeymen Education and Training, Local
130, U.A., and Chicago Journeymen Plumbers' Local 130, U.A.,
Group Legal Services Plan Fund ("Plaintiff") seeks damages
against Defendants Makeco Plumbing, Ltd. ("Makeco"), Eileen Joyce
d/b/a Makeco Plumbing, Ltd. ("Eileen"), and Patrick Joyce d/b/a
Makeco Plumbing, Ltd. ("Patrick") for unpaid contributions,
penalties, interest, liquidated damages, audit costs, attorneys'
fees, and court costs pursuant to collective bargaining
agreements between Makeco and the Union and pursuant to ERISA,
29 U.S.C. § 1001 et. seq.
After Defendants failed to allow an audit of their books and
records, Plaintiff filed this lawsuit on behalf of the Funds on
December 30, 2002, to obtain an audit and recover all appropriate
damages. In the complaint and at every subsequent stage
thereafter Plaintiff requested the same relief, an audit for
the period from January 25, 1996 to the present, and judgment in favor of Plaintiff and against Defendants for all
unpaid contributions, penalties, interest, liquidated damages,
audit costs, attorneys' fees, and court costs owed under the
collective bargaining agreement and ERISA. Although duly served,
Defendants did not respond.
On February 4, 2003, Plaintiff filed an Amended Complaint
seeking an audit and all appropriate damages. Although duly
served, Defendants did not respond.
On April 1, 2003, Plaintiff filed a Motion for Default seeking
judgment for an audit and all appropriate damages. Although duly
served, Defendants did not respond.
On April 8, 2003, I entered an Order finding each Defendant in
default and awarding the relief requested in Plaintiff's Motion
for Default. The Order was duly served on Defendants.
On May 1, 2003, Plaintiff filed a Motion for a Rule to Show
Cause and for attorneys' fees and costs incurred in preparing the
Motion, based on Defendants' failure to comply with the Court
Order of April 8, 2003. Defendants did not respond.
On May 8, 2003, I issued a Rule to Show Cause directing each
Defendant to appear and show cause why they should not be held in
contempt for failing to comply with the Court Order. I continued
the hearing on the Rule on several occasions while Plaintiff
tried to obtain Defendants' cooperation and the documents for the
compliance audit. Unable to obtain cooperation or sufficient
documentation from Defendants, Plaintiff resorted to issuing
subpoenas to third parties in an effort to obtain information and
documents for the audit.
Upon completing the compliance audit, the certified public
accounting firm of Kaplan & Co. issued its Report of Audit
Changes ("Audit Report"). The Audit Report revealed that over
$210,000 was owed for unpaid contributions and other payments. On February 5, 2004, Plaintiff sent copies of the Audit Report
to the Defendants, along with a cover letter demanding payment of
$334,670.65 and informing them that Plaintiff would seek judgment
if payment were not made.
On February 10, 2004, Plaintiff received a telephone call from
a person identifying himself as attorney Frank Howard and stating
that he was calling for Patrick. Plaintiff informed the caller of
the status of this case, including that Patrick was in default,
that the Audit Report had been issued, and that Plaintiff was
demanding over $330,000. There was no further contact.
On February 24, 2004, Plaintiff filed his Motion for Default
Judgment and served copies on Defendants. Defendants did not
On March 2, 2004, I granted Plaintiff's Motion and entered a
final judgment against Defendants in the amount of $339,267.60.
On March 2, 2004, Plaintiff received a telephone call from a
person identifying himself as Patrick. At that time, Plaintiff
confirmed that I had entered judgment for over $330,000.
Defendants Eileen, Patrick, and Makeco now move to vacate the
default judgment. Eileen Joyce claims that she was out of the
country until February 25, 2004 and thus did not see Plaintiff's
most recent Motion for Default until after March 2, 2004. After
notifying Patrick Joyce of ...