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,
CONCRETE ETC., INC., Defendant.
S. Schumann, One of Plaintiffs' attorneys.
MOTION FOR DAMAGES
Z. Lee, 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 (collectively the
“Funds”), pursuant to Rule 55 of the Federal
Rules of Civil Procedure, by their attorneys, move for
Judgment of Damages in Sum Certain against Defendant
Concrete, Etc., Inc. (hereinafter the “Company”).
In support of this Motion, Plaintiffs, by their attorneys
August 25, 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 has an obligation,
arising from a collective bargaining agreement to make
contributions to Plaintiffs' funds, to submit to an audit
upon demand and to obtain and maintain a surety bond. In this
Complaint, Plaintiffs specifically alleged that Defendant
failed to report and pay contributions from April 1, 2012 to
the present. Plaintiffs requested relief included producing
books and records for an audit upon Plaintiffs' request.
Company's Registered Agent and President, Karen Coen, was
served with the summons and complaint via certified mail
through the Illinois Secretary of State on September 19,
2016; the Company failed to answer; and the Court entered a
default judgment against the Company on February 23, 2017.
See attached Exhibit A, and Docket Numbers 7 and 14.
September 30, 2016, the undersigned counsel contacted the
Company's President and Registered Agent, Karen Coan, by
telephone. Ms. Coan agreed to cooperate with the Funds'
scheduling of a compliance audit for the period of April 1,
2012 through September 30, 2016.
established by the Laborers' Field Representative, Rocco
Marcello, the independent auditing firm of Calibre CPA Group,
PLLC (“Calibre”), was selected to perform a
review of the Company's books and records for the period
between April 1, 2012 through September 30, 2016 for the
Funds. (See attached, Exhibit C, Marcello Affidavit at
January 12, 2017, Calibre issued an audit report with
findings. Calibre's audit report, shows that the Company
owes $10, 299.51 in contributions, which includes $420.76 in
unpaid union dues. (See Exhibit B, Audit Report).
According to the Collective Bargaining Agreement and the
Trust Agreements to which the defendant is bound, payment is
also owed for liquidated damages in the amount of twenty (20)
percent of the unpaid or late contributions to the Welfare,
Pension, and Training funds, and ten (10) percent of the
principal amount of delinquent contributions to the LDCLMCC,
CAICA and LECET funds, and for Union dues. As such,
liquidated damages are owed in the amount of $1, 952.96 to
the Welfare, Pension and Training funds, liquidated damages
are owed in the amount of $53.47 to LDCLMCC, CAICA and LECET
funds and Union Dues Fund. Also, accumulated liquidated
damages in the amount of $214.11 are owed for the
Company's prior delinquent reports, and interest is
calculated at twelve (12) percent and is owed for all
delinquencies excluding union dues. Thus, the amount of $1,
917.45 is owed to date in accumulated interest according to
the Funds' Summary Spreadsheet Report. (See Exhibit D,
Funds' Summary Spreadsheet Report; Exhibit C, Marcellos
Affidavit at ¶5).
Defendant is also obligated to pay $1, 095.52 for the cost of
the audit based on the respective Trust Agreements to which
it is bound. (See Exhibit B, Audit Report; Exhibit C,
Marcello Affidavit at ¶4; Exhibit D, Funds' Summary
Additionally, Plaintiffs are 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 incurred in this matter are $5,
221.50 and $475.00 in costs, which consists of service of
process and filing fees. (See Exhibit E, Schumann Affidavit,
and Exhibit E1, Attorney fee report).
January 17, 2017, the undersigned counsel sent via regular
mail and email a demand letter with a copy of the audit to
Ms. Coen. The letter explicitly required that the Company
raise any challenges to the audit report with any supporting
evidence by January 27, 2017 (See Docket No. 12, Exhibit A,
February 2, 2017, the undersigned contacted Ms. Coen by
telephone and informed her that Plaintiffs would be moving
the Court for an entry of default against the Company and
would shortly thereafter move for damages. Ms. Coen confirmed
the Company is no longer operating and will not defend the
Plaintiffs request that the Court enter a judgment order for
damages in the total amount of $21, 229.52 to be entered
against the Defendant, Concrete Etc., Inc., and in favor of
the Funds. Plaintiffs further request that this Court order
Defendant, should it resume operations, to comply with its
obligations to report hours of covered employees on a monthly
basis and pay current contributions as they become due as
required under the collective ...