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Laborers' Pension Fund v. Herlt

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

May 1, 2017

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, THE CHICAGO LABORERS' DISTRICT COUNCIL RETIREE HEALTH AND WELFARE FUND and JAMES S. JORGENSEN, Administrator of the Funds, Plaintiffs,
v.
ERNEST HERLT, individually and d/b/a CBS EXCAVATING & SNOWPLOWING Defendant.

          MOTION FOR ENTRY OF DEFAULT JUDGMENT IN A SUM CERTAIN

          Andrea R. Wood Judge

         Now come 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 Laborers' District Council Retiree Health and Welfare Fund and James S. Jorgensen (collectively referred to hereinafter as the "Funds"), by and through their attorney, G. Ryan Liska, and hereby request this Court for an entry of default judgment in sum certain pursuant to Fed.R.Civ.P. 55(b) on Counts I, II, III and IV of Plaintiffs' Complaint against Defendant Ernest Herlt, individually and d/b/a CBS Excavating & Snowplowing, (hereinafter "Company"). In support of this Motion, Plaintiffs state as follows:

         1. Funds filed their Complaint on October 26, 2016 seeking to compel Company, as set forth in Counts I and II, to submit payment of amounts found due and owing pursuant to an audit of the Company's books and records for the period of August 1, 2010 to December 31, 2012 . Funds also sued to compel the Company, as set forth in Counts III and IV to submit its benefits and dues reports and contributions for the time period of June, 2013 forward.

         2. Summons and Complaint was served on Company on November 1, 2016. A true and accurate copy of the Affidavit of Service is attached hereto as Exhibit A, 3. Company has failed to answer or otherwise plead, and accordingly is in default.

         4. Pursuant to Section 502(g)(2) of the Employee Retirement Income Security Act ("ERISA"), as amended, 29 U.S.C. § 1132(g)(2), Section 301 of the Labor Management Relations Act ("LMRA"), as amended, 29 U.S.C. §185, and the Agreement, the Funds' respective Agreements and Declarations of Trust, Funds are entitled to judgment in the amount of $200, 861.74 against Defendant Ernest Herlt, individually and d/b/a CBS Excavating & Snowplowing on Counts I, II, III and IV as follows:

A. As set forth in the Affidavit of Michael Christopher filed contemporaneously herewith and attached hereto as Exhibit B, $70, 440.37 in unpaid benefit contributions, interest, liquidated damages and audit fees is owed by the Company as revealed by an audit of the Company's books and records for period August 1, 2010 through December 31, 2012 and accumulative liquidated damages which stem from the late payment of monthly fringe benefit and union dues reports. See Exhibit B, ¶ 5 and 6;
B. As set forth in the Affidavit of Michael Christopher filed contemporaneously herewith and attached hereto as Exhibit B, $128, 594.87 in unpaid benefit contributions and liquidated damages is owed by the Company as revealed by the Company's monthly contribution reports for the period June 2013 through November 2016 which stem from the late submission and failure to pay monthly fringe benefit and union dues reports. See Exhibit B, ¶ 5 and 6;
C, As set forth in the Declaration of G. Ryan Liska, filed contemporaneously herewith and attached hereto as Exhibit C, $1, 361.50 in attorneys' fees and costs of $465.00.

         5. There is no just reason for delay and judgment should be entered against Defendant and in favor of the Funds pursuant to Fed.R.Civ.P. 55(b) on Counts I, II, III and IV of Funds' Complaint.

         WHEREFORE, Plaintiffs respectfully request that Defendant Ernest Herlt, individually and d/b/a CBS Excavating & Snowplowing be found in default and judgment be entered in Plaintiffs' favor and against Defendant, on Counts I, II, III and IV of Plaintiffs' Complaint pursuant to Fed.R.Civ.P. 55(b) in the amount of $200, 861.74 as follows:

A. For $70, 440.37 in unpaid benefit contributions, interest, and liquidated damages audit fees representing amounts due as revealed to the audit of Defendant's books and records for period August 1, 2010 through December 31, 2012 and accumulative liquidated damages stemming from the late payment of monthly fringe benefit and union dues reports;
B. For $128, 594.87 in unpaid benefit contributions and liquidated damages representing amounts due as revealed by the Company's monthly contribution reports for the period June 2013 through November 2016;
C. For $ 1, 361.50 representing attorneys' fees and costs of $465.00; and
D. Ordering Defendant to post and maintain a fringe benefit bond in accordance with the terms and conditions of the collective bargaining agreement and pay post judgment interest in all amounts due from the ...

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