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Sheet M Workers Local 265 Welfare Fund v. M & J'S Cooling, Inc.

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

May 31, 2017

SHEET M WORKERS LOCAL 265 WELFARE FUND, et al., Plaintiffs,
v.
M & J'S COOLING, INC., an Illinois corporation, Defendant.

          Cecilia M. Scanlon Attorney for Plaintiffs BAUM SIGMAN AUERBACH & NEUMAN, LTD.

          PURPOSE OF ENFORCING THE TERMS OF THE SETTLEMENT AGREEMENT AND ENTERING JUDGMENT AGAINST DEFENDANT AND JOHN KAPIDIS, INDIVIDUALLY

          ELAINE E. BUCKLO JUDGE.

         NOW COME Plaintiffs, SHEET M WORKERS LOCAL 265 WELFARE FUND, et al., by their attorneys, and move the Court for the entry of an order reopening this action for the limited purpose of enforcing the terms of the Settlement Agreement (entered into between the parties on April 7, 2017) and entering judgment against Defendant, M & J's Cooling, Inc., an Illinois corporation, and John Kapidis, individually. In support of the Motion, Plaintiffs state as follows:

         1. This action was originally brought by the Plaintiffs, the Trustees of the jointly- administered, labor-management employee benefit plans collectively known as the Sheet M Workers Local 265 Fringe Benefit Funds, alleging, inter alia, that Defendant breached its obligations under the terms of the collective bargaining agreements entered into with the Sheet M Workers International Association, Local 265 and the Agreements and Declarations of Trust under which the Plaintiff Funds are maintained. Specifically, Plaintiffs allege that Defendant failed to remit payment of contributions for work performed on its behalf by beneficiaries of the Plaintiff Funds. The Complaint was brought pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§1132, 1145.

         2. On May 5, 2017, an Agreed Order of Dismissal incorporating the terms for settlement agreed to by the parties as set forth in the attached Settlement Agreement was entered by this Court (a copy of the Agreed Order of Dismissal is attached hereto).

         3. The Defendant and John Kapidis acknowledged and agreed that they owed the total amount of $37, 129.11 for contributions and liquidated damages for the time period February 2016 through September 2016, and audit contributions and liquidated damages for the time period April 1, 2013 through June 30, 2016, as well as attorneys' fees from July 2016 to January 31, 2017, as described in Paragraph 6 of the Settlement Agreement.

         4. The parties agreed that Defendant and John Kapidis would submit the amount set forth in Paragraph 3 above by way of the payment of 26 monthly installments of $1, 500.00 each, with the 26th (final) installment of $239.34. The parties agreed to the following payment schedule:

Payment Number

Date

Amount Due

Regular Report and Contribution

1

4/20/2017

$1, 500.00

March 2017

2

5/20/2017

$1, 500.00

April 2017

3

6/20/2017

$1, 500.00

May 2017

4

7/20/2017

$1, 500.00

June 2017

5

8/20/2017

$1, 500.00

July 2017

6

9/20/2017

$1, 500.00

August 2017

7

10/20/2017

$1, 500.00

September 2017

8

11/20/2017

$1, 500.00

October 2017

9

12/20/2017

1, 500.00

November 2017

10

1/20/2018

$1, 500.00

December 2017

11

2/20/2018

$1, 500.00

January 2018

12

3/20/2018

$1, 500.00

February 2018

13

4/20/2018

$1, 500.00

March 2018

14

5/20/2018

$1, 500.00

April 2018

15

6/20/2018

$1, 500.00

May 2018

16

7/20/2018

$1, 500.00

June 2018

17

8/20/2018

$1, 500.00

July 2018

18

9/20/2018

$1, 500.00

August 2018

19

10/20/2018

$1, 500.00

September 2018

20

11/20/2018

$1, 500.00

October 2018

21

12/20/2018

$1, 500.00

November 2018

22

1/20/2019

$1, 500.00

December 2018

23

2/20/2019

$1, 500.00

January 2019

24

3/20/2019

$1, 500.00

February 2019

25

4/20/2019

$1, 500.00

March 2019

26

5/20/2019

$239.34

April 2019

         5. Defendant agreed to remain current with respect to the submission of monthly contribution reports and fringe benefit contributions that became due throughout the period of the payment schedule.

         6. In the event Defendant failed to submit the payments as agreed in Paragraph 6 and Exhibit A to the Promissory Note, or failed to timely submit current reports and contributions due, the Defendant would be considered in default of the Settlement Agreement. Thereafter, the Plaintiff Funds would be entitled to file a motion in this Court to reinstate the case for the limited purpose of entering judgment against Defendant and John Kapidis for all unpaid installments and contributions and liquidated damages due under the Settlement Agreement and Promissory Note, plus the Plaintiff Funds' attorneys' fees and costs incurred as a result of Defendant and John Kapidis's default and for enforcement of the Settlement Agreement.

         7. Defendant and John Kapidis failed to submit the first installment payment of $1, 500.00 due by April 20, 2017 and failed to submit Defendant's monthly fringe benefit contribution report and the contributions due thereon for March 2017. Although under no obligation to do so, on May 15, 2017, Plaintiffs' counsel sent an e-mail to John Kapidis regarding the failure of the Defendant and John Kapidis to abide by the terms of the Settlement Agreement. Plaintiffs' counsel advised Mr. Kapidis that the installments due on April 20, 2017 and May 20, 2017 and the Defendant's March 2017 report and contributions must be submitted by May 20, 2017.

         8. On May 15, 2017, Mr. Kapidis responded to Plaintiffs' counsel's e-mail advising that the Defendant's reports and contributions for March and April 2017 were filed on-line. Mr. Kapidis also advised that he thought the first installment of $1, 500.00 was due by May 20, 2017.

         9. On May 19, 2017, Mr. Kapidis submitted only the first installment payment of $1, 500.00 by check no. 1213 drawn on the account of Aire Serv of Kankakee. The Plaintiff Funds could not accept this check because Aire Serv of Kankakee is a company that is not signatory to a collective bargaining agreement with the Sheet M Workers International Association, Local 265.

         10. As of the date of filing the instant Motion, Defendant and/or John Kapidis has not paid the first and second installment of $1, 500.00 due under ...


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