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Trustees of Chicago Regional Council of Carpenters Pension Fund v. Summit Enterprises Co.

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

February 11, 2014

TRUSTEES of the CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND, et al. Plaintiffs,
v.
SUMMIT ENTERPRISES CO. and JOHN BODENDORFER Defendants.

DANIEL P. McANALLY, Whitfield McGann & Ketterman, Chicago, IL, Attorney for Plaintiffs.

MOTION FOR ENTRY OF JUDGMENT

REBECCA R. PALLMEYER, District Judge.

Plaintiffs, by its attorney, Daniel P. McAnally, move this Honorable Court for an entry of judgment and in support Plaintiffs state:

1. This is and ERISA trust fund case seeking delinquent contributions, interest, liquidated damages, dues check-off and attorney fees.

2. On October 15, 2013 this Court entered an Order of Default against the Defendants for their failure to answer the complaint. (Exhibit A)

3. The Order of Default directed the Defendant, among other things, to submit reports, contributions and the dues deducted from the employees' pay checks. The Court retained jurisdiction to enter a final judgment for the contributions and dues checkoff shown to be owed. (Exhibit A)

4. The Defendants submitted the monthly contribution reports but failed to submit the ERISA contributions shown to be owed in the amount of $39, 703.83 for the months of May 2013 through December 2013. The Defendants also failed to remit the union dues it withheld from the employees' wages. The amount of dues withheld is $2, 740.80 for the period June 2013 through December 2013. (Exhibit B, affidavit of John Libby)

5. Defendant, John Bodendorfer, is personally liable for the dues under the Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq. John Bodendorfer is an officer of Summit Enterprises Co. and knowingly permitted and willfully refused to remit dues on behalf of its employees in violation of the Wage Act. 820 ILCS 115/14.

6. Summit Enterprises Co. owes interest on the unpaid ERISA contributions in the amount of $414.67 pursuant to the Trust Agreements and 29 U.S.C. § 1132(g)(2)(B). (Exhibit B)

6. Summit Enterprises Co. owes liquidated damages on unpaid ERISA contributions in the amount of $8, 985.66 for the period February 2013 through December 2013 pursuant to the Collective Bargaining Agreements, the Trust Agreements and 29 U.S.C. § 1132(g)(2)(C)(ii). (Exhibit B)

7. The Defendant owes the sum of $6, 444.75 for necessary and reasonable attorney fees and costs of $510 which are collectible under the terms of the Collective Bargaining Agreement, the Trust Agreements and 29 U.S.C. § 1132(g)(2)(D). (Exhibit C, affidavit of Daniel P. McAnally).

WHEREFORE, Plaintiffs pray that their motion for entry of judgment be granted against Summit Enterprises Co. in the amount of $58, 799.71 and against John Bodendorfer in the amount of $2, 740.80.

EXHIBIT A

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Tuesday, October 15, 2013:

MINUTE entry before Honorable Rebecca R. Pallmeyer: Motion hearing held on 10/15/2013. Motion for order of default [10] granted. It is hereby ordered that Defendants, Summit Enterprises Co. and John Bodendorfer, submit reports, contributions and dues for the period July through present to the Plaintiffs within ten days. The court will retain jurisdiction solely to enter a final judgment for all outstanding contributions and dues. Status hearing set for 10/16/2013 is stricken. Civil case terminated. Mailed notice(etv, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.

EXHIBIT B

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

John Libby declares as follows:

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

2. Summit Enterprises Co. executed an Agreement with the Chicago and Northeast Illinois Regional Council of Carpenters ("Union") whereby it agreed to be bound by the provisions of a Collective Bargaining Agreement and to all Collective Bargaining Agreements subsequently negotiated.

3. Pursuant to the provisions of the Agreement and the Collective Bargaining Agreements, Summit Enterprises Co. agreed to be bound by the provisions of the Agreements and Declarations of Trust, which created the Plaintiffs' Trust Funds.

4. Pursuant to the provisions of the Collective Bargaining Agreements and Trust Agreements, is required to submit monthly reports which list the number of hours worked by its carpenter employees and the Defendant is required to pay contributions based upon the hours listed.

5. Summit Enterprises Co. submitted the contribution reports for the period May 2013 through December 2013 but did not pay the contributions. The reports show that $39, 703.83 is owed in ERISA contributions. The Defendants also failed to remit the union dues it withheld from the employees' wages. The amount of dues withheld is $2, 740.80 for the period June 2013 through December 2013.

6. Because of its failure to pay contributions in a timely manner, the Trust Agreement and Collective Bargaining Agreement mandate the assessment of liquidated damages. The liquidated damages calculation was based on the rate set forth in the controlling Trust Agreements, which is 1.5% compounded per month. The amount of liquidated damages owed is $8, 985.66 for the period February 2013 through December 2013.

7. The interest calculation is based on the ERISA Section awarding such interest, 29 U.S.C. § 1132(g)(2) and because the relevant Trust Agreements do not specify the rate of interest, the calculations were done pursuant to Section 6621 of the Internal Revenue Code. The amount of interest owed is $414.67.

8. A summary of the total claim for $51, 844.96 is attached hereto and incorporated herein.

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.

Account # XXXXX Contributions Liquidated Damages Dues Interest Total Feb-13 $0.00 $1, 491.51 $0.00 $0.00 $1, 491.51 Mar-13 $0.00 $3, 849.82 $0.00 $0.00 $3, 849.82 Apr-13 $0.00 $671.72 $0.00 $0.00 $671.72 May-13 $7, 143.51 $903.65 $0.00 $132.00 $8, 179.16 Jun-13 $5, 322.72 $584.43 $440.32 $85.14 $6, 432.61 Jul-13 $5, 118.00 $478.02 $442.40 $68.89 $6, 107.31 Aug-13 $4, 094.40 $316.50 $353.92 $44.54 $4, 809.36 Sep-13 $4, 094.40 $251.40 $353.92 $34.45 $4, 734.17 Oct-13 $5, 358.00 $244.86 $442.40 $31.32 $6, 076.58 Nov-13 $4, 286.40 $129.45 $353.92 $14.53 $4, 784.30 Dec-13 $4, 286.40 $64.30 $353.92 $3.80 $4, 708.42 ___________ __________ _________ ________ ___________ Totals: $39, 703.83 $8, 985.66 $2, 740.80 $414.67 $51, 844.96

EXHIBIT C

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

Daniel P. McAnally declares as follows:

1. I am an associate of the law firm of Whitfield McGann & Ketterman and am licensed to practice law in the State of Illinois and in the U.S. Dist. 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 in excess of 20 years 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. Attorneys of this law firm have devoted 33.05 hours in connection with the this case at the rates of $175.00, $195.00 and $225.00 per hour. The total attorney fees billings is $6444.75.

6. I have spoken with four other lawyers from four different labor law firms who practice this type of ERISA trust fund litigation. Based on my knowledge and experience, the rates charged 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. In addition, the filing fee was $400.00 and the fees for service of process were an additional $110.00. These costs total $510.

8. I certify that the attorney fees and costs totaling $6, 954.75 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.


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