IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
January 28, 2011
BOARD OF TRUSTEES OF THE PLUMBERS' LOCAL UNION NO. 93 U.A.; BOARD OF TRUSTEES OF THE PLUMBERS' LOCAL UNION NO. 93 U.A. RETIREMENT ACCOUNT FUND; BOARD OF TRUSTEES OF THE PLUMBERS' LOCAL UNION NO. 93 U.A. PENSION FUND; BOARD OF TRUSTEES OF THE PLUMBERS'
LOCAL UNION NO. 93 U.A. HEALTH AND WELFARE FUND; BOARD OF TRUSTEES OF THE JOINT APPRENTICESHIP COMMITTEE FUND OF THE PLUMBING & HEATING INDUSTRY OF LAKE AND MCHENRY COUNTIES; AND THE INDUSTRY ADVANCEMENT FUND; PLAINTIFFS,
AMERICORE CONCRETE CUTTERS, LLC,
AN ILLINOIS LIMITED LIABILITY COMPANY, DEFENDANT.
MAGISTRATE JUDGE: DENLOW
PLAINTIFFS' MOTION FOR JUDGMENT
Now come Plaintiffs, the BOARD OF TRUSTEES of the PLUMBERS LOCAL UNION NO. 93 U.A., et al., by and through their attorneys, JOHNSON & KROL, LLC, and move this Court for Judgment in sum certain in favor of Plaintiffs and against Defendant AMERICORE CONCRETE CUTTERS, LLC ("AMERICORE"), and in support state as follows:
1. On October 13, 2010, this Court entered an Order of Default Judgment in favor of Plaintiffs and against Defendant AMERICORE and directed the owner of AMERICORE, Dan Defoort, to contact Plaintiffs counsel within 5 days from service of the Order to schedule a payroll compliance audit. (A copy of the Default Order is attached as Exhibit1).
2. AMERICORE, through its owner, was ordered to "allow the Plaintiffs' auditor access to all of the necessary books and records of AMERICORE'S business to conduct a payroll compliance audit within thirty (30) days of being served with this Default Order." (Exhibit1).
3. Plaintiffs were directed to serve a copy of the Default Order on AMERICORE'S business address and Mr. Defoort's residential address.
4. Pursuant to the Order, the Plaintiffs' process server posted copies of the Order and Notice on the front doors of AMERICORE'S business address (1348 Ridge Avenue, Elk Grove Village, Illinois 6007) and Mr. Defoort's residential address (1122 Cedar Lane, Elk Grove Village, Illinois 60007). (Affidavits of Posting are attached as Exhibits 2 and 3, respectively). Additionally, the process server sent copies of the Order and Notice to the addresses. (Exhibits 2 and 3).
5. Pursuant to the Order, Plaintiffs sent copies of the Order and Notice via Certified Mail (return receipt requested) to Mr. Defoort's residential address (1122 Cedar Lane, Elk Grove Village, Illinois 60007) and business address (1348 Ridge Avenue, Elk Grove Village, Illinois 6007). Plaintiffs received a Return Receipt with Mr. Defoort's signature. (A copy of a Return Receipt is attached as Exhibit 4).
6. Defendant acknowledged receipt of the Order by telephone on November 1, 2010, and again on November 30, 2010.
7. The Defendant failed/refused to produce any documents to Plaintiffs' counsel or the auditor.
8. On January 5, 2011, Plaintiffs moved this Court for a Petition for Rule to Show Cause as to why Defendant AMERICORE, through its President, Dan Defoort, should not be held in Contempt of Court for failure/refusal to comply with the Court's order of October 13, 2010.
9. On January 5, 2011, this Court granted Plaintiffs' Petition for Rule to Show Cause in part and again ordered Defendant AMERICORE, through its President Dan Defoort "to comply with the Default Order entered on 10/13/2010." The Court also cautioned the Defendant that its failure to comply with the Order, including (without limitation) its audit and disclosure obligations, will result in judgment in a sum certain being entered against it. (A copy of Plaintiff's Letter and Docket Entry is attached as Exhibit 5).
10. Plaintiffs served Dan Defort with a copy of the Court's Order on January 7, 2011. Plaintiffs also sent the Order via email, fax and notified Mr. Defoort via voice message. (A copy of the Certified Mail Return Receipt is attached as Exhibit 6).
11. Mr. Defoort has again failed/refused to comply with the Court's Order.
12. Mr. Defoort is in deliberate and willful violation of this Court's Order.
13. Plaintiffs have calculated a sum certain based on the fringe benefit packages in effect during the time period of May 1, 2009 through February 1, 2011, and assuming forty (40) hours per week, and fifty-two (52) weeks per year. Hours have only been calculated for the owner, Dan Defoort. (Affidavit of Scott Spangle is attached as Exhibit 7).
14. Based on the above-assumptions, AMERICORE owes the Plaintiffs the following amounts:
A. $43,083.20 in contributions for May 2009 through May 2010;
B. $29,330.00 in contributions for June 2010 through January 31, 2011. (Exhibit 7).
15. The total amount currently owed by AMERICORE for contributions is $72,413.20.
16. Defendant AMERICORE owes the Plaintiffs liquidated damages in the amount of $7,241.32 and interest in the amount of $6,495.82 for the time period of May 1, 2009 through January 31, 2011. (Exhibit 7).
17. Defendant AMERICORE owes the Plaintiffs $5,991.17 in reasonable attorney fees and costs incurred by the Plaintiffs in bringing this suit pursuant to 29 U.S.C. § 1132
(g)(2)(D), the Trust Agreements, and the Collective Bargaining Agreement. (Affidavit of Attorney's Fees is attached as Exhibit 8).
18. Further amounts may be owed by AMERICORE for other employees performing covered work under the Collective Bargaining Agreement.
19. Plaintiffs seek leave to amend the Default Judgment if further amounts are revealed through post-judgment citation proceedings.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court Order enter Judgment against Defendant AMERICORE in the amount of $92,141.51 and grant leave for Plaintiffs to move for an amended judgment if further amounts are revealed though post-judgment Citation proceedings.
Respectfully Submitted, TRUSTEES OF THE PLUMBERS LOCAL 93 U.A. TRUST FUNDS
By: /s/ William P. Callinan
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