United States District Court, N.D. Illinois, Eastern Division
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, and CATHERINE WENSKUS, Assistant Administrator of the Funds. Plaintiffs,
HARMON MOTOR SERVICES & CONSTRUCTION, INC., Defendant.
S. Schumann One of plaintiffs' attorneys Karen I.
Engelhardt Sara S. Schumann ALLISON, SLUTSKY & KENNEDY,
PLAINTIFFS' MOTION FOR PROVE UP OF
Honorable Harry D. Leinenweber, Judge.
the Laborers' Pension Fund and the Laborers' Welfare
Fund of the Health and Welfare Department of the Construction
and General Laborers' District Council of Chicago and
Vicinity (collectively the "Funds"), and Catherine
Wenskus, pursuant to Rule 55 of the Federal Rules of Civil
Procedure, by their attorneys, move for Judgment of Damages
in Sum Certain against Defendant Harmon Motor Services &
Construction, Inc. In support of this Motion, Plaintiffs, by
and through their attorneys state the following:
May 24, 2017, Plaintiffs filed a complaint under Sections
502(e)(1) and (2) of the Employee Retirement Income Security
Act, as amended, 29 U.S.C. §1132(e)(1) and (2); Section
301(a) of the Labor Management Relations Act, as amended, 29
U.S.C. §185(a); and 28 U.S.C. §1331 alleging that
at all material times Defendant, Harmon Motor Services &
Construction, Inc. (the "Company"), has an
obligation, arising from a collective bargaining agreement
("CBA") to make contributions to Plaintiffs'
Funds, to submit to an audit upon demand and to obtain and
maintain a surety bond. Plaintiffs attached a copy of the CBA
to the Complaint as Exhibit A. In the Complaint, Plaintiffs
specifically alleged that Defendant failed to report and pay
contributions from September 8, 2012 through August 31, 2013
and from September 1, 2013 through March 31, 2016, as
reflected by the audit reports, which were attached to the
Complaint as Exhibit B (See Docket No. 1).
July 17, 2017, Summons and Complaint were served through the
Secretary of State, after Plaintiffs' process server was
unable to serve the Company's registered agent and
president, Lorenzo Harmon at the registered agent's
address of 7000 W. North Avenue, Suite 3B, Chicago, IL 60707.
Plaintiffs also sent copy of summons and complaint by
certified mail to Lorenzo Harmon at 1954 N. Natoma, Chicago,
Illinois 60707 (See Docket No. 6, Affidavit of Compliance).
Court granted Plaintiffs' motion for default, on November
1, 2017, when Defendant failed to appear.
established by the Funds' Field Department
Representative, Rocco Marcello, the independent auditing firm
of Richard J. Wolf & Company, Inc. ("Wolf), reviewed
the Defendant's records which reflected contributions due
to the Funds for the period from September 8, 2012 through
August 31, 2013. Wolfs audit report dated September 23, 2013,
reflects principal contributions owed to the Welfare,
Pension, Training, LECET, LDCLMCC, CAICA, and for Union dues
in the total amount of $1, 761.66 (See, Exhibit A, Wolf Audit
Report; Exhibit C, Affidavit of R. Marcello at ¶3; and
Exhibit C1, Summary Report).
Additionally, as established by Mr. Marcello, the independent
auditing firm of Legacy Professionals, LLP
("Legacy"), reviewed the Defendant's records
which reflected contributions due to the Funds for the period
from September 1, 2013 through March 31, 2016. Legacy's
audit report dated April 10, 2017, reflects principal
contributions owed to the Welfare, Pension, Training, LECET,
LDCLMCC, CAICA, and for Union dues in the total amount of
$15, 585.43 (See, Exhibit B, Legacy Audit Report; Exhibit C,
Marcello Affidavit at ¶4; Exhibit C2, Summary Report).
According to the CBA and the respective Trust Agreements to
which the Defendant is bound, payment is also owed for
liquidated damages in the amount of 20% (twenty percent) of
the unpaid or late contributions to the Welfare, Pension, and
Training funds, and 10% (ten percent) of the principal amount
of delinquent contributions to the LDCLMCC, CAICA and LECET
funds, and for Union dues. Also, interest is calculated at
12% (twelve percent) and is owed for all delinquencies. As
such, based on the delinquent contributions to the Welfare,
Pension and Training funds liquidated damages are owed in the
amount of $330.04 per the Wolf audit and $2, 923.28 per the
Legacy audit; liquidated damages are owed based on delinquent
contributions to LDCLMCC, CAICA and LECET funds and Union
dues, in the amount of $ 11.15 per the Wolf audit and $96.90
per the Legacy audit; and interest is owed in the amount of $
181.94 per the Wolf audit and $5, 555.01 per the Legacy
audit. The amounts for the respective liquidated damages and
accumulated interest are established by Mr. Marcello's
affidavit, and are further detailed in the Summary Reports
that he prepared based from the respective audit reports and
that are attached hereto as Exhibits CI and C2 (See, Exhibit
C at ¶5).
required by Article IX, paragraph 1 of the collective
bargaining agreement, all employers are required to procure,
carry and maintain a surety bond in an amount that is
satisfactory to the Union. This bond must be in excess of $5,
000.00 to guarantee the payment of wages and, Pension and
Welfare Trust Contributions during the term of the Agreement.
The Company was unable to provide written proof to the
auditors that it had obtained such a surety bond (Exhibit C
at ¶7; Exhibit A at 1).
cost of the Wolf Audit billed to the Funds was $600.00 and
the cost of the Legacy Audit billed to the Funds was $2,
501.28, which amounts the Defendant is also obligated to pay,
based on the respective Trust Agreements to which it is bound
(See Exhibit A, Exhibit B and Exhibit C at ¶6).
Plaintiffs are entitled to attorneys' fees and costs
under ERISA, 29 U.S.C.§ 1132(g)(2)(B). The attached
affidavit of Sara Stewart Schumann establishes the amount of
attorneys' fees incurred in this matter are $3, 691.00
and $486.71 in costs, which consists of service of process
and filing fees (See Exhibit D, Affidavit of Sara Stewart
Schumann, and Exhibit D1 Fee Report).
Plaintiffs request entiy of a judgment against Harmon Motor
Services & Construction, Inc., in a total amount of $33,
724.40, and a Court order demanding that Defendant within 60
days of the date of this judgment order provide written proof
that it has obtained a surety bond to Plaintiffs'
counsel, Sara Stewart Schumann, Esq., ...