PLAINTIFFS' MOTION FOR PROVE UP OF DAMAGES NOW COME
Plaintiffs Central States, Southeast and Southwest Areas Pension Fund ("Pension Fund") and Howard McDougall, trustee, and by and through their attorney submit this Motion for Prove Up of Damages. In support of their Motion, Plaintiffs state as follows:
1. On December 12, 2007, this Court issued an order granting Plaintiffs' Motion for Summary Judgment as to the issue of liability.
2. This Court held that Defendant Smeltzer Enterprises, Inc. d/b/a White Tower Industrial Laundry & Cleaners ("White Tower") owes delinquent monthly contributions and interest to the Pension Fund pursuant to the collective bargaining agreement with Local Union 51 which was never terminated. (Memorandum Opinion and Order, p. 4).
3. This Court also held that White Tower's liability for contributions to the Pension Fund "could only be terminated by written notice to [the Pension Fund]." (Memorandum Opinion and Order, p. 9).
4. To date, the Pension Fund has not received such written notice from White Tower. (See Affidavit of JoEvelyn George-Roberson ¶5 ("George-Roberson Affidavit"), attached as Exhibit A).
5. Therefore, White Tower's contribution obligation remains ongoing and White Tower owes the Pension Fund monthly contributions for the period April 1, 2007 through January 4, 2008, totaling $18,034.08. (George-Roberson Affidavit ¶10).
6. Pursuant to 29 U.S.C. § 1132(g)(2), the Pension Fund is entitled to the following relief when prevailing in an action under 29 U.S.C. § 1145:
(i) the unpaid contributions;
(ii) interest on the unpaid contributions;
(iii) an amount equal to the greater of the interest or liquidated damages as provided under the Plan in an amount not in excess of twenty percent (20%) of the unpaid contributions; and
(iv) reasonable attorneys' fees and costs.
7. As this Court held: "The terms of [White Tower's] relationship with [the Pension Fund] were further defined in a Pension Fund Trust Agreement. The Trust Agreement provides for interest and/or liquidated damages to be paid by [White Tower] in the event of delinquent contributions." (Memorandum Opinion and Order, p. 2).
8. Pursuant to the terms of the Pension Fund's Trust Agreement, the Pension Fund is entitled to pre-judgment interest on the entire outstanding balance at an annualized interest rate equal to two percent (2%) plus the prime interest rate established by Chase Manhattan Bank (New York, New York) for the fifteenth (15th) day of the month for which ...