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SULLIVAN v. MAKECO PLUMBING

June 7, 2004.

JAMES S. SULLIVAN, not individually but as Trustee of PLUMBERS' PENSION FUND, LOCAL 130, U.A., etc., Plaintiff,
v.
MAKECO PLUMBING, LTD.; EILEEN JOYCE d/b/a Makeco Plumbing; and PATRICK JOYCE d/b/a Makeco Plumbing, Defendants.



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 respond.

  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 ...


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