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Chicago Regional Council of Carpenters Pension Fund v. Gleason Woodwork, Inc.

United States District Court, N.D. Illinois, Eastern Division

January 14, 2014

CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND et al., Plaintiffs,
v.
GLEASON WOODWORK, INC., Defendant.

David Whitfield, Whitfield McGann & Ketterman, Chicago, IL, Attorney for Plaintiffs.

MOTION TO REINSTATE THE CASE AND ENTRY OF JUDGMENT

SHARON J. COLEMAN, District Judge.

Now come Plaintiffs, the Chicago Regional Council of Carpenters Pension Fund, et al., by their attorney, David Whitfield, of Whitfield McGann & Ketterman, and respectfully requests that this Honorable Court reinstate the case and enter final Judgment for the amounts found to be owed. In support of the motion, the Plaintiffs state as follows:

1. Plaintiffs filed their complaint on June 17, 2013 and good service of summons occurred on June 22, 2013. (Exhibit A, Affidavit of Service)

2. At all times relevant to this action, the Defendant has been bound by the provisions of a Collective Bargaining Agreement and the Trust Agreements which created the Trust Funds. (Exhibit B - Signed Agreement)

3. This action arises under Section 502 of the Employee Retirement Income Security Act and Section 301 of the Taft-Hartley Act. (29 U.S.C. §§ 1132 and 185). Jurisdiction is founded on the existence of questions arising thereunder. (Exhibit F - Sworn Declaration of John Libby)

4. The Defendant must submit monthly reports listing the hours worked by its carpenter employees ("contribution reports") and to make concurrent payment of contributions to the Trust Funds based upon the hours worked by its carpenter employees. (Exhibit F - Sworn Declaration of John Libby)

5. The Defendant breached the provisions of the Collective Bargaining Agreement and Trust Agreements by failing to submit the full amount owed to the Trust Funds. Plaintiffs and Defendants entered into an Agreed Order of Dismissal on September 30, 2013. (Exhibit C - Agreed Order of Dismissal; Exhibit F - Sworn Declaration of John Libby)

6. The Defendant breached Paragraph 1 of the agreed Order of Dismissal by failing to maintain the agreed upon monthly installment payments to the Plaintiffs. The Defendant owes the Plaintiffs $182, 885.50 of the Agreed Order of Dismissal. (Exhibit F - Sworn Declaration of John Libby)

7. Paragraph 3 of the Agreed Order of Dismissal provides Plaintiffs' the right to seek entry of a judgment if Paragraph 1 is breached. (Exhibit C - Agreed Order of Dismissal)

8. Paragraph 3 of the Agreed Order of Dismissal provides Plaintiffs' the right to seek any additional attorney's fees and cost expended in enforcing the Agreed Order of Dismissal if Paragraph 1 or Paragraph 2 is breached. The Plaintiffs have incurred an additional $3, 027.50 in attorney fees and costs since the entering of the Agreed Order of Dismissal. (Exhibit C - Agreed Order of Dismissal; Exhibit D - Sworn Declaration of David Whitfield; Exhibit E - Detailed Billing of Whitfield McGann & Ketterman)

WHEREFORE, Plaintiffs pray:

a) That a judgment is entered against the Defendant in the amount of $185, 913.00.
b) The Defendant be ordered to submit payment of $185, 913.00 to the Plaintiffs.
i) That Plaintiffs have such other and further relief as by the Court may be deemed just and equitable all at the Defendant's costs pursuant to 29 U.S.C. § 1132(g)(2)(E).

EXHIBIT A

Service of Summons

EXHIBIT B

Signed Memorandum of Agreement

EXHIBIT C

Agreed Order of Dismissal

Agreed Order of Dismissal

The parties hereby agree that this case has been settled and that all issues and controversies have been resolved to their mutual satisfaction.

IT IS HEREBY ORDERED

1. That the defendant shall pay to the Plaintiffs two hundred forty five thousand three hundred four dollars and fourteen cents ($245, 304.14) in seven (7) installments as follows:
$67, 823.41 on or before September 27, 2013
$26, 930.77 on or before November 1, 2013
$25, 130.21 on or before December 1, 2013
$17, 837.75 on or before January 1, 2014
$21, 452.51 on or before February 1, 2014
$15, 974.30 on or before March 1, 2014
$70, 155.19 on or before March 15, 2014
2. That the Defendant shall remain current in its ERISA monthly reporting and payment obligations to the Plaintiffs.
3. That if the Defendant defaults on either paragraphs 1 or 2, the Plaintiffs shall have the right to reinstate this case for the sole purpose of entering Judgment for the balance owed pursuant to this Order, plus any additional unpaid ERISA contributions incurred, accrued interest, liquidated damages and Plaintiffs' attorney fees and cost expended in enforcing this order.
4. This case is dismissed without prejudice with leave to reinstate on or before May 31, 2014.
5. In the event a motion to reinstate is not filed on or before May 31, 2014, the case shall be deemed dismissed with prejudice without further order of the Court.
6. Each party shall bear its own attorney's fees and costs.

EXHIBIT D

Sworn Declaration of David Whitfield

SWORN DECLARATION PURSUANT TO 28 U.S.C.A. § 1746

David Whitfield, declares as follows:

1. I am an associate of the law firm of Whitfield McGann & Ketterman and I am licensed to practice law in the State of California, the State of Illinois and in the United States District Court for Northern District of Illinois, Eastern Division.

2. I have personal knowledge of the facts stated herein and if called to testify in this matter, I can competently testify to such facts from my own such knowledge.

3. I have been a licensed attorney for 3 years and have over 30 months of experience representing trustees of employee benefit plans, including the prosecution of Federal Court litigation to collect delinquent employer contributions.

4. The Collective Bargaining Agreement and the Trust Agreements under which this action is based provide for the payment of attorneys' fees and costs incurred if the Trust Funds utilize legal counsel to collect unpaid ERISA contributions.

5. I have spoken with senior attorneys within my firm who intern have conferred with lawyers from several different labor law firms who practice this type of ERISA trust fund litigation. Based on my knowledge and experience, the rates charges by the hour in this case are less than or equal to the usual and customary rates charged by other law firms doing similar work in the United States District Court for the Northern District of Illinois.

7. My firm has devoted an additional 16 hours in connection with this case filing a motion for an Agreed Order of Dismissal at the rate of $175.00 per hour. The court previously awarded any additional Plaintiffs' attorney's fees and cost expended in enforcing the Agreed order of Dismissal. The total attorney fees billed since filing the Agreed Order of Dismiss is $3, 027.50.

8. I certify that the attached detailed attorney fees and costs totaling $3, 027.50 were necessary and reasonable.

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in this Declaration is true and correct.

EXHIBIT E

Detailed Attorney's Fees of Whitfield McGann & Ketterman

EXHIBIT F

Sworn Declaration of John Libby

NOW COMES JOHN LIBBY, who after being duly sworn upon oath, states as follows:

1. I am the Manager of Audit and Collections for the Chicago Regional Council of Carpenters Pension Fund, the Chicago Regional Council of Carpenters Welfare Fund, and the Chicago Regional Council of Carpenters Apprentice Training Fund ("Trust Funds") and in such capacity I am authorized to make this Affidavit on behalf of the Plaintiff Trust Funds.

2. The Trust Funds receive contributions from numerous employers pursuant to Collective Bargaining Agreements between the employers and the Chicago Regional Council of Carpenters, ("Union"), and therefore, are multiemployer plans. (29 U.S.C. § 1002). The Trust Funds are administered at 12 East Erie, Chicago, Illinois and venue is proper in the Northern District of Illinois.

3. GLEASON WOODWORK, INC. is an employer engaged in an industry affecting commerce that entered into a Collective Bargaining Agreement whose terms require Defendant to pay fringe benefits to the Trust Funds.

4. The Collective Bargaining Agreement also binds GLEASON WOODWORK, INC. to the provisions of the Agreement and Declarations of Trust that created the Trust Funds ("Trust Agreements").

5. GLEASON WOODWORK, INC. is required to make contributions to the Trust Funds for each hour worked by its carpenter employees at the rate and in the manner specified in the Collective Bargaining Agreements and Trust Agreements. In addition, the Defendant is required to make contributions to the Trust Funds measured by the hours worked by subcontractors that are not signatory to a Collective Bargaining Agreement with the Union.

6. GLEASON WOODWORK, INC. entered into an Agreed Order of Dismissal with the Trust Funds in the amount of $245, 304.14 to be paid to the Trust Funds in seven installments.

7. GLEASON WOODWORK, INC. breached Paragraph 1 of the agreed Order of Dismissal by failing to maintain the agreed upon monthly installment payments to the Plaintiffs. The Defendant owes the Plaintiffs $182, 885.50 of the Agreed Order of Dismissal.

8. Plaintiffs have been required to employ attorneys to collect on the Agreed Order of Dismissal.

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in this Declaration is true and correct.


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