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Central States v. J.C. Cornillie Company

February 18, 2009

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, AND HOWARD MCDOUGALL, TRUSTEE, PLAINTIFFS,
v.
J.C. CORNILLIE COMPANY, L.L.C., CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Judge Manning a Michigan

Magistrate Judge Mason

MOTION FOR ENTRY OF ORDER OF DEFAULT AND JUDGMENT BY DEFAULT

Plaintiffs Central States, Southeast and Southwest Areas Pension Fund and Howard McDougall, trustee, (hereinafter collectively referred to as "Pension Fund"), pursuant to Rule 55(b) of the Federal Rules of Civil Procedure ("F.R.Civ.P."), hereby move this court for the entry of an order of default and judgment by default against Defendant J.C. Cornillie, LLC, a Michigan limited liability corporation ("J.C. Cornillie"). In support of this motion, the Pension Fund states as follows:

1. On April 10, 2008, Plaintiffs filed a Complaint against Defendant in accordance with the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq., as amended by the Multiemployer Welfare Plan Amendments Act of 1980, to recover shortfall payments and delinquent employer contributions due and owing to the Pension Fund by Defendant as well as interest, liquidated damages, and attorneys' fees and costs.

2. This Court has subject matter jurisdiction of this action and venue of this action properly lies in this District. 29 U.S.C. § 1132(e)(1) and (e)(2). (Affidavit of Andrew M. Sprau ¶2 ("Sprau Affidavit") attached hereto as Exhibit 1 and incorporated herein by reference; Affidavit of Juan J. Beaton ¶¶ 4-5 ("Beaton Affidavit") attached hereto as Exhibit 2 and incorporated herein by reference).

3. On April 14, 2008, Defendant was served by personal delivery of Summons and Complaint and this Court has personal jurisdiction over Defendant. See Affidavit of Service filed on April 29, 2008; F.R.Civ.P. Rule 4(c), (h).

4. Defendant is in default because it has failed to file an answer or other responsive pleading to the complaint within the time limit prescribed by Fed.R.Civ.P. 12.

5. The Pension Fund receives contributions from numerous employers pursuant to collective bargaining agreements by and between employers and various local unions affiliated with the International Brotherhood of Teamsters ("IBT"). (Beaton Affidavit ¶6).

6. The contributions received by the Pension Fund are used to provide retirement benefits for the participants of the Pension Fund. (Beaton Affidavit ¶6).

7. Defendant is an employer bound by the provisions of a collective bargaining agreement with Local 247 of the IBT. Pursuant to the provisions of the collective bargaining agreement, Defendant was required to pay monthly employer contributions to the Pension Fund on behalf of certain covered employees. (Beaton Affidavit ¶7).

8. Defendant and Local 247 executed a Participation Agreement which requires Defendant to pay contributions to the Pension Fund in accordance with the collective bargaining agreement. (Beaton Affidavit ¶7).

9. Defendant, as a participating employer in the Pension Fund, is required to advise the Pension Fund with respect to the names of individuals who perform covered work and are required to indicate which weeks are worked by the employees. Based upon the work history reported by the employers, the Pension Fund bills the employers for contributions. (Beaton Affidavit ¶8).

10. Defendant breached the provisions of the collective bargaining agreement, the participation agreement, and the Pension Fund's Trust Agreement by failing to pay all contributions to the Pension Fund which the employee work history reported to the Pension Fund revealed to be owed for the period of February 2008 through April 2008. (Beaton Affidavit ¶9).

11. As a result, Defendant owes the principal amount of $6,474.00 for delinquent employer contributions to the Pension Fund. (Beaton Affidavit ¶9).

12. Defendant also entered into a Settlement Agreement and Release with the Pension Fund settling claims related to a sale of assets and the subsequent withdrawal liability assessment which required Defendant to maintain a certain contribution base unit level for the period of 2006 through 2008 pursuant to the collective bargaining agreement, Participation Agreement, and the Pension Fund Trust Agreement. (Sprau Affidavit ¶6).

13. Defendant did not maintain the required contribution base unit level for the year 2007, and therefore was notified that it should remit shortfall payments no later ...


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