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Chicago Regional Council of Carpenters Pension Fund v. Orion Hardwood Floors, Inc.

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

December 1, 2017

CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND, et al, Plaintiffs,
v.
ORION HARDWOOD FLOORS, INC., a Wisconsin corporation, Defendant.

          CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND ET AL. KEVIN P. MCJESSY MCJESSY, ONE OF THEIR ATTORNEYS

          KEVIN P. MCJESSY CHING & THOMPSON, LLC

          PLAINTIFFS' MOTION FOR ENTRY OF JUDGMENT

          VIRGINIA M. KENDALL, JUDGE.

         Plaintiffs Chicago Regional Council of Carpenters Pension Fund et al.' s ("Plaintiffs") hereby move this Court to enter a judgment by default against defendant ORION HARDWOOD FLOORS, INC., a Wisconsin corporation ("Defendant") pursuant to Federal Rule of Civil Procedure 55. In support of their Motion, Plaintiffs state as follows.

         I. SUMMARY OF DAMAGES.

         For the reasons explained more fully below, this Court should award Plaintiffs $36, 271.94 in damages as follows:

(A) Unpaid Fringe Benefit Contributions

$19, 528.38

(B) Interest

$1, 294.37

(C) Liquidated Damages

$3, 905.68

(D) Auditors' Fees

$3, 952.50

(E) Attorneys' Fees and Costs

$7, 591.01

Total

$36, 271.94

         II. ENTRY OF FINAL JUDGMENT.

         A. Defendant's Default.

         On December 7, 2016, Plaintiffs filed a complaint against the Defendant under the Employee Retirement Income Security Act ("ERISA") for unpaid fringe benefit contributions owed by Defendant pursuant to an audit conducted by Plaintiffs' designated auditor, Legacy Professionals, LLP ("Legacy") for the period January 1, 2015 through September 30, 2016.

         Plaintiffs' complaint also seeks a judgment for all unpaid contributions, interest and liquidated damages, attorneys' fees and costs and auditors' fees pursuant to ERISA, the Area Agreements and the trust agreements to which Defendant is signatory.

         The complaint was served on Defendant on December 28, 2016. See Affidavit of Service, Docket No. 5. The affidavit of service was filed with the Clerk of Court on or about January 3, 2017. See Affidavit of Service, Docket No. 5. Defendant tailed to answer or appear.

         This Court entered an order of default against Defendant on February 28, 2017. See Order, Docket Report No. 12. That order provides in part that:

         Pursuant to Federal Rule of Civil Procedure 55(a), an order of default is hereby entered in favor of the CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND et al. ("Plaintiffs") and against defendant ORION HARDWOOD FLOORS, INC., a Wisconsin corporation ("Defendant"). Defendant is hereby ordered:

A. to produce to Plaintiffs or their designated auditors. Legacy Professionals, LLP within twenty-one (21) days of the date of entry of this Order all of Defendant's books and records necessary so that Plaintiffs may complete an audit of Defendant's fringe benefit contributions for the period January 1, 2015 through December 31, 2016;
B. to pay any and all amounts Plaintiffs may discover to be due pursuant to the audit, 29 U.S.C. §1132(g)(2)(A);
C. to pay auditor's fees incurred by Plaintiffs to complete the audit of Defendant's books and records, 29 U.S.C. §1132(g)(2)(E);
D. to pay interest on the amount that is due, 29 U.S.C. § 1132(g)(2)(B);
E. to pay interest or liquidated damages on the amount that is due, whichever is greater, 29 U.S.C. §1132(g)(2)(C); and
F. to pay reasonable attorneys' fees and costs Plaintiffs incurred in this action and attorneys' fees that Plaintiffs incur to obtain full compliance with this Order and to collect any amounts due and owing to the Plaintiffs, 29 U.S.C. §1132(g)(2)(D).

See Order, Docket Report No. 12.

         After the entry of the order of default on February 28, 2017 and after entry of a rule to show cause, Plaintiffs were able to conduct an audit of Defendant's books and records which revealed unpaid fringe benefit contributions in the amount of $19, 528.38. See Declaration of K. Guastaferri ¶¶6-7, Exhibit A; Order, June 28, 2017, Docket Report No. 16.

         After completion of the audit, Plaintiffs asked Defendant for additional information on September 22, 2017, September 26, 2017, October 4, 2017, October 6, 2017 and October 23, 2017 but Defendant did not respond to the requests for information. See Emails from K. McJessy, Counsel for Plaintiffs, to B. Kobiske, President of Defendant, dated September 22, 2017, September 26, 2017, October 4, 2017, October 6, 2017 and October 23, 2017, Group Exhibit D.

         B. Damages for Unpaid Fringe Benefit Contributions.

         Defendant is bound by the Area Agreement with the Chicago Regional Council of Carpenters ("Union"). See Declaration of K. Guastaferri ΒΆ3, Exhibit A. Under ERISA, Defendant is liable to Plaintiffs for any ...


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