United States District Court, N.D. Illinois, Eastern Division
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,
COTTAGE GROVE GLASS 7403, INC., Defendant.
S. Schumann One of Plaintiffs' attorneys.
PLAINTIFFS' MOTION FOR PROVE-UP OF
HONORABLE ELAINE E. BUCKLO J.
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
(collectively herein referred to as the “Funds”),
by their attorneys, hereby move for judgment of damages in
sum certain against Defendant, Cottage Grove Glass 7403,
Inc., pursuant to Rule 55 of the Federal Rules of Civil
Procedure. In support of this Motion, Plaintiffs by and
through their attorneys state the following:
February 5, 2016, Plaintiffs filed a Complaint under Sections
502(e)(1) and (2) of the Employee Retirement Income Security
Act, as amended, 29 U.S.C. §1132(e)(1) and (2); Section
301(a) of the Labor Management Relations Act, as amended, 29
U.S.C. §185(a); and 28 U.S.C. §1331 alleging that
at all material times the Defendant, Cottage Grove Glass
7403, Inc. (the “Company”), has an obligation,
arising from a collective bargaining agreement
(“CBA”) to make contributions to Plaintiffs'
funds, to submit to an audit upon demand, and to obtain and
maintain a surety bond. Plaintiffs attached a copy of the CBA
to the Complaint. In the Complaint, Plaintiffs specifically
alleged that Defendant failed to report and pay contributions
from September 2015 to the present. Plaintiffs' requested
relief included producing books and records for an audit upon
Plaintiffs' request (See Docket No. 1).
February 18, 2016, the Summons and Complaint were served upon
the Company's registered agent and president, Patricia
King (See Docket No. 4, Affidavit of Service).
June 1, 2016, the Court found the Defendant in default (See
Docket No.7, Minute Order).
Funds' selected the independent auditing firm of Richard
J. Wolf and Company, Inc., to perform a compliance payroll
audit as required by the CBA. The audit report dated May 25,
2016 is attached hereto as Exhibit 1 (See Exh. 1, Audit
May 31, 2016, a letter and a copy of the auditors' report
was sent to the Company with a deadline for presenting any
objections to the audit report on or before June 16, 2016
(See Exhibit 2, Demand Letter). The Company has failed to
present evidence to support challenges to the audit- despite
the undersigned counsel allowing the Company added time to
present such evidence.
established by the Funds' Field Department Director, Jean
Mashos, the Funds' auditors review of the Defendant's
records, reflects contributions due to the Funds for the
period covering September 9, 2015 through March 31 2016,
including principal contributions owed to the Welfare,
Retiree Welfare, Pension, Training, LECET, LMCC and CAICA
funds, and for Union dues in the total amount of $68, 005.66
(See Exh. 3, Affidavit of Jean Mashos; and Exh. 2, Audit
According to the CBA, the Master Agreement and the respective
Trust Agreements to which Defendant is bound, payment is also
owed for liquidated damages in the amount of twenty percent
(20%) of the unpaid or late contributions to the Welfare,
Welfare Retiree, Pension, and Training funds, and ten percent
(10%) of the principal amount of delinquent contributions to
the LECET, LMCC, CAICA funds and for Union dues.
Additionally, interest is calculated at twelve percent (12%)
and is owed for all delinquencies. As established by Ms.
Mashos's Affidavit, the liquidated damages owed to the
Welfare, Welfare Retiree, Pension and Training funds amount
to $13, 163.47 and the liquidated damages owed to the LMCC,
CAICA and LECET funds, and for Union dues, amount to $218.82.
And interest is due in the amount of $3, 299.02 (See, Exh. 3,
Mashos Affidavit at ¶¶6-7). These amounts are
further detailed in the Funds' summary report that is
attached hereto as Exhibit 4.
cost of the audit billed to the Funds was $855.00, which the
Defendant is also obligated to pay, based on the respective
agreements to which it is bound (See Exh. 3, Mashos Affidavit
at ¶8; and Exh. 2, Audit Report).
Plaintiffs are also entitled to attorneys' fees and costs
under ERISA, 29 U.S.C.§1132(g)(2)(B). The attached
affidavit of Sara Stewart Schumann establishes the amount of
attorneys' fees and costs incurred in this matter are $6,
245.00 (See, Exhibit 5, Schumann Affidavit; and Exhibit 5A,
Plaintiffs request entry of judgment against the Defendant,
requesting that the Court order judgment to be entered in the
total amount of $91, 786.97. Furthermore, Plaintiffs request
the Court's order specify that, as required by the
collective bargaining agreement, the Company provide written
proof that it has obtained a surety bond to Plaintiffs'
counsel, Sara S. Schumann, Esq., Allison, Slutsky &
Kennedy, P.C., ...