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Haffner v. Arrow Marine Transport, Inc.

United States District Court, Seventh Circuit

May 23, 2013

MICHAEL HAFFNER, as Trustee of the CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 301 HEALTH & WELFARE FUND and as Trustee of the CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 301 PENSION FUND, Plaintiff,
v.
ARROW MARINE TRANSPORT, INC., Defendant.

Laura L. Fischer, ARDC #: 6304745, CARMELL CHARONE WIDMER, MOSS & BARR, Chicago, Illinois, Attorney for Plaintiff.

PLAINTIFF'S MOTION FOR JUDGMENT BY CONFESSION

VIRGINIA M. KENDALL, District Judge.

Plaintiff Michael Haffner, as Trustee of the Chauffeurs, Teamsters & Helpers Local Union No. 301 Health & Welfare Fund and of the Chauffeurs, Teamsters & Helpers Local Union No. 301 Pension Fund, moves for judgment by confession against Defendant Arrow Marine Transport, Inc. ("Arrow Marine"), and in support thereof states:

BACKGROUND

1. This case arises pursuant to Section 502(a)(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(3) to collect delinquent employee benefit fund contributions.

2. The Complaint in this matter was filed with the Court on August 27, 2012. (Dkt. #1). The executed Summons confirming service of the Complaint on Arrow Marine was filed on September 12, 2012. (Dkt. #5).

3. Pursuant to an Agreed Motion for Extension of Time, the Court ordered Arrow Marine's Answer to be filed by November 18, 2012. (Dkt. ##8, 10).

4. On November 16, 2012, the parties executed a Settlement and Installment Agreement ("Agreement"). (Dkt. #15-1).

5. On November 20, 2012, the parties filed a Joint Motion for Entry of Agreed Order of Dismissal. (Dkt. #15).

6. On December 3, 2012, the court entered an Agreed Order of Dismissal based on the parties' settlement, and retained jurisdiction for purposes of enforcing the Agreement. (Dkt. #20).

THE TERMS OF THE AGREEMENT

7. Pursuant to Paragraph 1 of the Agreement concerning "Current Contributions, " Arrow Marine agreed to make payments to the Funds so as to become completely current on amounts due and owing the Funds, including contributions that become due during the life of the Agreement, on or before March 1, 2013. (Dkt. #15-1, Page ID #113).

8. Pursuant to Paragraph 2 of the Agreement concerning "Previous Delinquencies, " Arrow Marine agreed to pay previous delinquencies for the period of January 1, 2008 through December 31, 2009, plus 3% annual interest, in the total amount of $105, 553.80. (Dkt. #15-1, Page ID #113).

9. The Agreement provides:

4.c) Acceleration.. In the event the Employer fails to make any payment required by this Agreement or any timely current contribution to the Funds when due, the remaining unpaid balance (including delinquent contributions, liquidated damages and interest), plus all attorneys' fees and costs incurred by Funds in collecting the unpaid balance, shall be immediately due and payable to the Funds.
5. CONFESSION OF JUDGMENT
Upon acceleration in accordance with Paragraph 4, the Employer hereby waives notice and presentment and authorizes any attorney of any court or record to enter appearance and confess judgment against it for the balance due and owing under this Agreement, any contractual delinquencies in current contributions, and the costs and reasonable attorneys' fees incurred in enforcing the Employer's obligations hereunder.

THE BREACH OF THE AGREEMENT

10. Arrow Marine has not paid Current Contributions as required by the Agreement, in that Welfare Fund contributions for October 2012 through February 2013 of $24, 750.00 were not paid by March 1, 2013. (See Affidavit of Michael B. Haffner, attached as Exhibit A, ¶5).

11. Arrow Marine has not paid Current Contributions as required by the Agreement, in that Pension Fund contributions for July through December 2012 of $17, 787.00 were not paid by March 1, 2013. (Ex. A, ¶6).

12. While the Funds agreed to waive the applicable 10% liquidated damages for June through October 2012 delinquent contributions, Arrow Marine owes liquidated damages of $1, 600.00 to the Welfare Fund for the months of November 2012 through February 2013, and $345.45 to the Pension Fund for the months of November and December 2012. (Ex. A, ¶7).

13. Pursuant to Paragraph 2(c) of the Agreement, concerning "Previous Delinquencies, Arrow Marine owes the Funds $93, 553.80. (Dkt. #15-1, Page ID ##113-14; Ex. A, 118).

14. Plaintiff has incurred attorneys' fees associated with pursuing this matter totaling $3, 342 from March 1, 2013 through May 19, 2013. (See Affidavit of Laura L. Fischer, attached as Exhibit B.) This amount continues to accrue.

WHEREFORE, Plaintiff requests that this Court enter an order of judgment by confession pursuant to the terms of the Agreement, in the following amounts:

A) A total amount on behalf of Plaintiff of $145, 519.33, which includes:

• The remaining balance on the Agreement of $93, 553.80 plus $2, 806.61 in statutory interest pursuant to IRC 6621(a)(2);
• The contributions and liquidated damages due and owing to the Health & Welfare Fund for October 2012 through February 2013 totaling $26, 350.00, plus $790.50 in statutory interest pursuant to IRC 6621(a)(2);
• The contributions and liquidated damages due and owing to the Pension Fund for July through December 2012 totaling $18, 132.45, plus $543.97 in statutory interest pursuant to IRC 6621(a)(2); and
• Reasonable attorneys' fees incurred by the Funds in pursuing this action, in the amount of $3, 342, which continue to accrue, plus any additional reasonable attorney fees and costs incurred in pursuing this action; and

B) Any other relief this Court deems just and appropriate.

Respectfully submitted,

EXHIBIT A.

AFFIDAVIT OF MICHAEL B. HAFFNER

Michael B. Haffner, being first duly sworn deposes and says as follows:

1. I have personal knowledge of the facts stated herein and I am competent to testify if called as a witness.

2. As Trustee of the Local 301 Health & Welfare and Pension Funds, I represent the Funds' interest in this litigation.

3. On November 16, 2012, Defendant and I executed a Settlement and Installment Agreement ("Agreement") concerning Defendant's delinquent and current contributions to the Funds. (Dkt. #15-1).

4. Paragraph 1 of the Agreement requires Defendant to pay "Current Contributions, " as defined, on or before March 1, 2013. (Dkt. #15-1, Page ID #113).

5. Defendant has not paid "Current Contributions" as required by the Agreement, in that Welfare Fund contributions totaling $24, 750.00 for October 2012 through February 2013 were not paid by March 1, 2013.

6. Defendant has not paid "Current Contributions" as required by the Agreement, in that Pension Fund contributions totaling $17, 787.00 for July 2012 through December 2012 were not paid by March 1, 2013.

7. Additionally, Defendant owes liquidated damages in the amount of $1, 600.00 to the Welfare Fund for November 2012 through February 2013, and $345.45 to the Pension Fund for November through December 2012. (Pursuant to the Settlement Agreement, the Funds agreed to waive liquidated damages for June through October 2012.) (Dkt. #15-1, Page ID #112).

8. As required by the Agreement, Defendant currently owes the Funds $93, 553.80 for Previous Delinquencies.

9. Pursuant to paragraphs 5 through 8 above, Defendant owes the Funds a total of $138, 036.25.

Further Affiant Sayeth Not.

Before me this 23rd day of May __, 2013

EXHIBIT B.

AFFIDAVIT LAURA L. FISCHER ATTORNEY FOR PLAINTIFF

Laura L. Fischer, being first duly sworn, states as follows:

1. I am an associate attorney in the firm Carmell Charone Widmer Moss & Barr. Ltd. and represent Plaintiff Michael Haffner as Trustee of Local 301 Health & Welfare and Pension Funds in the instant matter.

2. This Affidavit is submitted in support of Plaintiffs Motion for Judgment by Confession.

On November 16, 2012, the parties executed a Settlement and Installment Agreement ("Agreement"). (Dkt. #15-1).

4. From March 1 through May 19, 2013. the attorneys of Carmell Charone Widmer Moss & Barr, Ltd. spent 16.8 hours performing legal services for the above-captioned matter. The relevant billable rates range from $185-$250 per hour.

5. The total amount of attorneys' fees through May 19, 2013, sought on behalf of Plaintiff in relation to this litigation is $3, 342.00. Attorneys' fees and costs continue to accrue.

6. Pursuant to Paragraphs 4(c), 5, and 7 of the Agreement, Plaintiff seeks to collect from Defendant the attorneys' fees and costs identified in Paragraph 5 above. (Dkt. #15-1, Page ID #4115-16).

7. The fees and costs associated with this matter are reasonable and fall within the normal standards of the legal community for the nature of the services performed and described herein.

Further Affiant Sayeth Not.


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