United States District Court, N.D. Illinois, Eastern Division
FOX VALLEY LABORERS' HEALTH AND WELFARE FUND, THE FOX VALLEY LABORERS' PENSION FUND, and PAT SHALES, Administrator of the Funds, Plaintiffs,
TNT LANDSCAPE CONSTRUCTION INC., d/b/a TNT CONSTRUCTION, INC., an Illinois corporation, TNT RESTORATION CONSTRUCTION, INC., an Illinois Corporation, NICHOLAS KROCKERT, individually, and TIMOTHY TERLECKI, individually, Defendants.
Elizabeth L. Rowe An Attorney for the Plaintiffs
PLAINTIFFS' MOTION FOR DEFAULT AND FINAL JUDGMENT
AGAINST TNT LANDSCAPE CONSTRUCTION INC. AND TNT RESTORATION
CONSTRUCTION, INC. AND TO DISMISS INDIVIDUAL
CHARLES RGLE JUDGE
FOX VALLEY LABORERS' HEALTH AND WELFARE FUND
(“Welfare Fund”), THE FOX VALLEY LABORERS'
PENSION FUND (“Pension Fund”), and PAT SHALES,
administrator of the Funds, (collectively, “the
Funds”), through their attorneys Dowd, Bloch, Bennett,
Cervone, Auerbach & Yokich, pursuant to Fed.R.Civ.P.
55(b), respectfully move this court for entry of final
judgment, in the form of the attached proposed order, against
Defendants TNT Landscape Construction Inc. d/b/a TNT
Construction, Inc., an Illinois Corporation, (“TNT
Landscape”) and TNT Restoration Construction, Inc., an
Illinois company, (“TNT Restoration”) on Counts I
through IV of the Complaint. The Funds ask that the remaining
defendants be dismissed without prejudice. In support of
their motion, the Funds state as follows:
Funds filed their five-count Complaint against Defendants on
October 5, 2016. Complaint [Doc. No. 1].
Initially, attorney Kori Bazanos appeared for all four
defendants in this case. However, on May 24, 2017 Bazanos
filed her Motion to Withdraw as Counsel [Docket No. 56],
which the Court granted by Order of June 14, 2017 [Docket No.
60]. The Order of June 14 further required all defendants to
appear within 28 days.
June 23, 2017, counsel from Gordon Rees Scully Mansukhani
(“Gordon Rees”) appeared for Defendants TNT
Landscape and TNT Restoration (collectively, “TNT
Companies”) [Docket Nos. 61 & 62].
November 28, 2017 Gordon Rees filed its motion to withdraw as
counsel for TNT Companies [Docket No. 89], which the Court
granted by Order of December 14, 2017 [Docket No. 91].
Defendant TNT Companies are without counsel and are now in
default under Fed.R.Civ.P. 55(a) for their failure to defend
the claims against them. See, e.g., Alacran
Contr., 2015 U.S. Dist. LEXIS 45089, *3 (N.D. Ill. Apr.
7, 2015) (entering default under Fed.R.Civ.P. 55(a) for
failure of corporation to obtain new counsel).
Pursuant to Federal Rule of Civil Procedure 55(b)(2), this
motion is being served on the TNT Companies by mail at least
7 days before it is scheduled for hearing.
Funds' are multiemployer benefit plans within the meaning
of Sections 3(3) and 3(37) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), 29
U.S.C. § 1002(3) and (37A). The Funds maintain offices
and conduct business within the district. The Funds are
agents for the purpose of collecting employer contributions
and deductions required to be paid on behalf of the Safety
Fund, the Apprenticeship Fund, the CAICA Fund, the IAF Fund,
the Laborers' District Council Labor Management
Cooperation Committee (“LMCC”), the
Laborers-Employers Cooperation and Education Trust
(“LECET”), and the Construction and General
Laborers' District Council of Chicago and Vicinity's
Work Dues Fund (“Dues Fund”), (collectively, the
“Affiliated Organizations”). See
Declaration of Pat Shales (“Shales Decl.”),
attached hereto as Exhibit 1, ¶¶ 3, 9.
August 5, 2014, Tim Terlecki signed a one-page Independent
Construction Industry Collective Bargaining Agreement with
the District Council on behalf of TNT Restoration (doing
business as “TNT Construction, Inc.”). The
Agreement obligates TNT Restoration to make monthly
contributions to the Funds on behalf of its employees covered
by the Agreement for health, welfare, and pension benefits,
in proportion to the number of hours worked by those
employees. Ex. 1, Shales Decl., ¶¶ 6, 8, and
Exhibit A thereto.
Restoration is an alter ego, single employer, and/or
successor to TNT Landscape and both TNT Companies are bound
to the Agreement. Id. at ¶ 7.
Agreement requires the TNT Companies to make contributions to
the Affiliated Organizations on behalf of its employees
covered by the Agreement in proportion to the number of hours
worked by those employees, and to provide reports stating the
amount of contributions it owes. Id. at ¶ 10.
Agreement further requires the TNT Companies to deduct union
dues from the wages earned by its employees covered by the
Agreement and to remit those dues to the District Council for
the Dues Fund, and to provide reports stating the amount of
union dues it must deduct and remit. The union dues are to ...