United States District Court, N.D. Illinois, Eastern Division
RICHARD J. KASPAR as ADMINISTRATOR of LOCAL No. 731, I. B. of T., EXCAVATORS AND PAVERS PENSION TRUST FUND, and LOCAL No. 731, I. B. of T., EXCAVATORS AND PAVERS PENSION TRUST FUND, Plaintiffs,
D M D SERVICES, INC. and any trade trade or business under common control with D M D SERVICES, INC., Defendants.
M. Barr Attorney for the Plaintiffs
MOTION FOR DEFAULT JUDGMENT AGAINST D M D SERVICES,
Virginia M. Kendall, Judge
Richard J. Kaspar (“Kaspar”) as Administrator of
the Local No. 731, I. B. of T., Excavators and Pavers Pension
Trust Fund and the Local No. 731, I. B. of T., Excavators and
Pavers Pension Trust (“Fund”), through their
attorneys, Dowd, Bloch, Bennett, Cervone, Auerbach &
Yokich pursuant to Federal Rule of Civil Procedure 55(b),
respectfully move this Court for entry of a final default
judgment against Defendant D M D Services, Inc.
(“DMD” or “Company”) under Count I of
the Complaint. In support of this motion, the Plaintiffs
state as follows:
is an action to collect withdrawal liability under the
Employee Retirement Income Security Act of 1974
(“ERISA”), as amended by of the Multiemployer
Pension Plan Amendments Act of 1980. Count I of the Complaint
seeks withdrawal liability, liquidated damages, interest, and
attorneys' fees and costs from DMD. Count II seeks joint
and several liability for these damages against and any
trades or businesses under common control with DMD
(collectively, “Control Group Members”) that the
Plaintiffs have not yet identified.
Plaintiffs filed their Complaint against DMD and the Control
Group Members on January 27, 2017. Compl. [Doc. No. 1].
was dissolved on May 1, 2016 and has failed to maintain a
registered agent. Off. of the Ill. Sec. of St. Corp. Detail
Rpt., a copy of which is attached hereto as Exhibit A.
Effective February 27, 2017, the Fund served DMD through the
Illinois Secretary of State under 805 ILCS 5/5.25 by sending
copies of the complaint, summons, and file-stamped Affidavit
of Compliance for Service of Secretary of State to DMD's
last registered office and the address that the Fund believed
to be most likely to result in actual notice, 24 Glenoble
Court; Oak Brook, IL 60523. Return of Service [Doc. No. 6].
Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A)(i),
DMD was required to answer or otherwise plead in response to
the Complaint within 21 days of February 27, 2017, or on or
before March 20, 2017.
of the date of this motion, DMD has not filed a motion for
enlargement of time, an answer, or any other pleading in
response to the Complaint.
has not timely responded to the Complaint or provided a
good-faith basis for failing to do so. DMD is now in default
under Federal Rule of Civil Procedure 55(a).
November 9, 2016, DMD received from the Fund a notice of
withdrawal liability meeting the requirements of Sections
4202(2) and 4219 of ERISA, 29 U.S.C. §§ 1382(2) and
1399. Compl. ¶¶ 10-16, 23.
notice required payment of DMD's full, accelerated
withdrawal liability of $362, 931 by no later than December
20, 2016. Compl. ¶¶ 11-12.
has not remitted any withdrawal liability payments or
challenged the withdrawal liability assessment. Compl.
¶¶ 17-19; Aff. Kaspar ¶ 6, a copy of which is
attached hereto as Exhibit B.
Under ERISA and the Fund's governing documents, the Fund
is entitled to a judgment against DMD for the full,
accelerated withdrawal liability, plus interest, liquidated
damages, and the attorneys' fees and costs. 29 U.S.C.