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Employers and Operating Engineers Local 520 Pension Fund v. JPK Excavating

November 22, 2005

EMPLOYERS AND OPERATING ENGINEERS LOCAL 520 PENSION FUND, ET AL., PLAINTIFFS,
v.
JPK EXCAVATING, INC., DEFENDANT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM AND ORDER

I. INTRODUCTION & BACKGROUND

Plaintiffs were allowed to file this Renewed Supplemental Motion for Default Judgment and supporting memorandum(Docs. 16 & 17), in order to attempt correction of several evidentiary deficiencies noted by the Court in its previous Order (Doc. 15) denying without prejudice Plaintiffs' original and first supplemental motions for default judgment (Docs. 8 & 12). Plaintiffs consist of several employee benefit funds and their representative fiduciaries, existing on behalf of members of the Operating Engineers Local Union No. 520(the "Union"). (Doc. 1, ¶¶ 1-6.) Defendant is an Illinois corporation that employed Union members. (Doc. 1, ¶7.)

The Union and Defendant entered into a collective bargaining agreement (the "Agreement"). Among other things, Defendant is required to (1) pay fringe benefit contributions for each hour of covered Union member work, (2) submit monthly report forms reflecting the hours worked and contributions owed, and (3) pay a 10% liquidated damages charge on all untimely benefit contribution payments. (Doc. 9, p. 1-2 and Doc. 9-2 "Affidavit of David Glastetter" ¶¶ 3-5, Ex. 1 (Articles 34-37, 45 and Schedule A).)*fn1

Ultimately, Plaintiffs seek a default judgment against Defendant in the amount of $49,109.07. (Docs. 16, 17 & 19.) This total amounts represents $10,101.00 owed in delinquent contributions and $1,747.52 owed in liquidated damages for the time period of January through April, 2005, and $33,179.68 owed in delinquent contributions and $3,319.97 owed in liquidated damages for the time period of June through August, 2005. (Doc. 19.) Lastly, Plaintiffs also seek reimbursement in the amount of $762.90 for related attorneys' fees and costs. (Id.)

Specifically in its previous Order (Doc. 15), the Court noted the following evidentiary items Plaintiffs should submit should they elect to file a renewed supplemental motion for default judgment:

(1) Evidence to show that Defendant was bound by the Agreement for the time period at issue, from January through April, 2005, and June through August, 2005, including signature pages of the Agreement signed by both parties;

(2) Evidence to show the contribution amounts Defendant is contractually obligated to pay to Plaintiffs under the Agreement for January through April, 2005, and June through August, 2005, (as stated in Schedule A of the Agreement); and

(3) Monthly reports submitted by Defendant to Plaintiffs for the months of January through April, 2005, and June through August, 2005.

II. DISCUSSION

1. The Agreement

In their renewed supplemental motion and supporting memorandum, Plaintiffs explain that a copy of the wrong Agreement was erroneously attached to the previously filed Affidavit of David Glastetter. (See Doc. 17, p. 1.) As such, the Court was unable to grant Plaintiffs' motion for default judgment, because the cover page of the Agreement initially submitted by Plaintiffs indicated it covered the time period of August 1, 1999 through July 31, 2004 -- a time which preceded the instant matter. (See Doc. 15, pp. 6-8.) Plaintiffs have now attached what is claimed to be the correct copy of the Agreement, labeled as Exhibit 6 (hereinafter the "Current Agreement") to the Third Affidavit of David Glastetter. (Doc. 17-2, ¶ 2 and Ex. 6.) The cover page of the Current Agreement indicates that it is effective from August 1, 2004 through July 31, 2007. This time frame would cover the months for which Plaintiffs seek delinquent benefit contributions, liquidated damages and their attorneys' fees and costs.

Additionally, the signature page submitted with Plaintiffs' initial and supplemental motions for default judgment was deemed insufficient by this Court because it was not signed by both parties to the Agreement. Accordingly, Plaintiffs have submitted a signature page with their renewed supplemental motion (see Doc. 17-2, ΒΆ 2, Ex. 2), containing signatures of both a representative of Plaintiffs and of Defendant. The Court also notes that the date on this signature page, October 24, 2004, is now also within the time frame of the Current Agreement (August 1, 2004 through July 31, 2007). This was not previously the case when Plaintiffs had erroneously submitted the incorrect Agreement. It now appears that this is the proper signature page (Doc. 17-2, Ex. 2) to the Current Agreement. After review of the Current Agreement, signature page to the Current Agreement and consideration of Plaintiffs' arguments, the Court is satisfied that the ...


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