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Sullivan et al v. Ross Mechanical

June 15, 2012

SULLIVAN ET AL
v.
ROSS MECHANICAL, INC.



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The Court grants Plaintiffs' motion for turnover against Aundre Ross [43] in the amount of $12,758.68. The Court takes the remainder of the turnover request, as well as Mr. Ross' request for setoff, under advisement pending an evidentiary hearing set for 7/25/12 at 1:30 p.m. The parties shall file a joint witness and exhibit list by 7/10/12. With regard to setoff, Mr. Ross shall file a statement of claim by 6/22/12. Plaintiffs shall respond by 6/29/12. Plaintiffs' request for the entry of judgment against Mr. Ross is denied without prejudice. The turnover order against Mr. Ross in the amount of $12,758.68 is stayed pending resolution of the issues at the evidentiary hearing.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

In this supplementary proceeding, certain labor organizations ("Plaintiffs") move for turnover against third party Aundre Ross in the amount of $53,408.68.*fn1 (R. 43.) Mr. Ross is the former president and sole owner of Defendant Ross Mechanical, Inc. ("Defendant"), an Illinois company that ceased doing business in October of 2010. (Id. at 7; R. 55, Ex. A, Declaration of Aundre Ross ("Ross Decl.") ¶ 2).)

As discussed below, the motion is granted in part, and taken under advisement in part. The Court will conduct an evidentiary hearing on July 25, 2012 at 1:30 p.m. consistent with the discussion below. The parties shall comply with the filing deadlines herein.

Continued...

Courtroom Deputy KF

Initials:

BACKGROUND

On December 29, 2010, Plaintiffs commenced this action against Defendant to enforce a labor arbitration award of $90,693.30 plus interest and fees. (R. 1, Compl. ¶¶ 12-17.) On February 17, 2011, the Court entered a default judgment against Defendant in the amount of $122,370.32. (R. 16.)

On March 7, 2011, Plaintiffs filed a Citation to Discover Assets as to Defendant. (R. 18.) The Citation requested production of certain documents as well as the personal appearance of Mr. Ross for an examination regarding Defendant's assets. Following two Orders to Show Cause and the issuance of a writ of body attachment (R. 23, 28, 32), Mr. Ross appeared for a citation examination on December 19, 2011. (R. 43, Pls.' Mem. at 2.) According to Plaintiffs, the citation examination of Mr. Ross and a review of Defendant's bank records revealed that Mr. Ross holds assets of Defendant that should be applied to the judgment in this case. (Id.)

Plaintiffs filed the present motion for turnover on February 22, 2012. (Id.) In support of their motion, Plaintiffs have proffered bank records and the transcript of the citation examination of Mr. Ross. (Id., Exs. A & B.) Mr. Ross, through counsel, responded to the motion on May 15, 2012, and attached thereto a personal declaration dated May of 2012. (R. 55, Ross Resp. & Ex. A.) Plaintiffs filed a reply on May 29, 2012. (R. 56, Pls.' Reply.)

LEGAL STANDARD

The parties agree that Illinois law governs this supplementary proceeding. See Fed. R. Civ. P. 69(a) ("proceedings supplementary to and in aid of judgment or execution must accord with the procedure of the state where the court is located"); Star Ins. Co. v. Risk Marketing Group Inc., 561 F.3d 656, 661 (7th Cir. 2009); Lorillard Tobacco Co. v. Canstar (U.S.A.) Inc., No. 03 C 4769, 2006 WL 1444895, at *1 (N.D. Ill. May 16, 2006) ("A supplementary proceeding is a post-judgment process designed to assist the judgment creditor in discovering assets to satisfy the judgment.") (citing Kennedy v. Four Boys Labor Serv., Inc., 279 Ill. App. 3d 361, 216 Ill. Dec. ...


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