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Laborers'pension Fund v. Superior Performance Coatings, Inc.

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

February 7, 2014

LABORERS' PENSION FUND and LABORERS' WELFARE FUND OF THE HEALTH AND WELFARE DEPARTMENT OF THE CONSTRUCTION AND GENERAL LABORERS' DISTRICT COUNCIL OF CHICAGO AND VICINITY, and JAMES S. JORGENSEN, Administrator of the Funds, Plaintiffs,
v.
SUPERIOR PERFORMANCE COATINGS, INC. Defendant.

Jason McGaughy, ALLISON, SLUTSKY & KENNEDY, P.C., Chicago, IL, One of plaintiffs' attorneys.

PLAINTIFFS' MOTION FOR DAMAGES

Plaintiffs, Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (collectively the "Funds"), and James S. Jorgensen, by their attorneys, state:

1. On November 2, 2012, plaintiffs filed a complaint under Section 301(a), Labor Management Relations Act, 29 U.S.C. §185(a), as amended, and Section 502(a)(3) of the Employee Retirement Income Security Act, 29 U.S.C. §1132(a)(3), as amended, alleging that at all material times the defendant has an obligation, arising from a collective bargaining agreement to make contributions to plaintiffs' Funds and to submit to an audit upon demand.

2. On November 19, 2012, plaintiffs' process server, Don Johnson, personally served Patrice C. Schmidt, President and Registered Agent for the defendant, at the location of 612 Bluff Street, Waukegan, Illinois 60085. A copy of the return of service is attached hereto as Exhibit 1.

3. On March 19, 2013, this court entered a default judgment against defendant as well as an order compelling an audit of the Company's books and records for the period from May 23, 2012 to the present. A copy of the Order of Default is attached hereto as Exhibit 2.

4. On March 26, 2013, plaintiffs' special process server, Don Johnson, personally served a copy of the Court's March 19, 2013 order upon Patrice C. Schmidt, President and Registered Agent for the defendant, at the location of 612 Bluff Street, Waukegan, Illinois 60085. Mr. Johnson's Affidavit of Service is attached hereto as Exhibit 3.

5. As established by the affidavit of the Funds' Field Representative, Jim Fosco, which is attached hereto as Exhibit 4, an audit report covering the period from May 23, 2012 through July 17, 2013, was prepared by the Funds' auditors, Richard J. Wolf and Company, Inc. As shown by the report, principal contributions are owed to the Welfare, Pension, Training, LECET, CAICA, LMCC/LDCLMCC Funds and for Union dues in the amount of $11, 315.21.

6. On August 12, 2013, plaintiffs' counsel sent a letter to the defendant enclosing a copy of the audit report. The letter requested that the defendant either submit payment of the amounts owed pursuant to the report, or present challenges to the report, along with supporting documentation on or before August 26, 2013. The defendant failed to submit payment of the amounts owed pursuant to the report, or to present challenges to the report. A true and correct copy of the August 12, 2013 letter is hereto attached as Exhibit 5.

7. Liquidated damages and interest are due as established by paragraphs 4 and 5 of Fosco's affidavit. Liquidated damages are owed in the amount of $2, 194.12, with respect to the contribution amounts set forth in the Richard J. Wolf and Company, Inc., audit report. Interest is also owed. In this matter, interest has been calculated by Mr. Fosco in the amount of $2, 044.96.

7. As established by Paragraph 6 of Mr. Fosco's affidavit, the audit fees in this matter are $600.00.

8. Plaintiffs are entitled to attorneys' fees and costs under ERISA, 29 U.S.C.§1132(g)(2)(B). The affidavit of Karen I. Engelhardt, attached hereto as Exhibit 6, establishes the amount of attorneys' fees incurred in this matter for the period from November 1, 2012 through February 6, 2014 as $3, 499.50, and Plaintiffs' costs, including filing fees, as $605.00.

WHEREFORE, Plaintiffs request entry of a judgment against defendant, Superior Performance Coatings, Inc. in the amount of $20, 258.79, as well as an order requiring the Company to report and pay contributions for the period from July 18, 2013 through the present.

Exhibit 1

YOU ARE HEREBY SUMMONED and required to serve upon PLAINTIFF'S ATTORNEY (name and address)

an answer to the complaint which is herewith served upon you, within 21 days after service of this summons upon you, exclusive of the day of service. if you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You must also file your answer with the Clerk of this Court within a reasonable period of time after SerViCe.Thom

Exhibit 2

ORDER

This cause coming to be heard before the Court on Plaintiffs' Motion for Default and to Compel an Audit; due notice having been given to the defendant, and the Court being fully advised in the premises:

IT IS HEREBY ORDERED:

1. A default is entered against the defendant, Superior ...


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