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, CATHERINE WENSKUS, Plaintiffs,
FIRST CORINTHIANS 3:10 CUSTOM BUILDERS and CEMENT WORKS, INC., Defendant.
I. Engelhardt One of Plaintiffs' attorneys
PLAINTIFFS' MOTION FOR DEFAULT AND PROVE UP OF
Laborers' Pension Fund and Welfare Fund of the Health and
Welfare Fund of the Health and Welfare Department of the
Construction and General Laborers' District Council of
Chicago and Vicinity (collectively the “Funds”),
by their attorneys, state:
December 8, 2017, Plaintiffs filed a complaint under Section
301(a), Labor Management Relations Act, 29 U.S.C.
§185(a), as amended, and Section 502(a)(3) of the
Employee Retirement Income Security Act, 29 U.S.C.
§1132(a)(3), as amended, alleging that at all material
times Defendant First Corinthians 3:10 Custom Builders and
Cement Works, Inc. (“First Corinthians”), was
bound by a collective bargaining agreement to make
contributions to Plaintiffs' Funds, to submit to an audit
upon demand and to obtain and maintain a surety bond. In this
Complaint, Plaintiffs specifically allege that Defendant
failed to submit to an audit for the period from August 29,
2017 to the present. Plaintiffs requested relief include
producing books and records for an audit upon plaintiffs'
request, and to hold the Company liable for all amounts owed
Plaintiffs special process server, M. Andre Smith, served
Registered Agent for First Corinthians 3:10 Custom Builders
and Cement Works, Inc. (“First Corinthians”) at
the office of the registered agent on December 14, 2017. See
Exhibit 1, attached hereto.
than twenty days have passed since the service of the summons
and the complaint, and the Defendant has failed to plead or
otherwise defend as required by the Federal Rules of Civil
Procedure. Copy of this motion will be sent to the Company
President, Jesse Young, at 5313 Brentgrass Avenue, Richton
Park, Illinois 60471 and the Company's Registered Agent.
According to the Funds' Director of Financial Operations,
Ryan Lacey, Richard J. Wolf and Company, Inc., examined the
books and records of First Corinthians and prepared an audit
report covering the period August 29, 2017 through January
31, 2018. The report reflects principal contributions owed to
the Welfare, Retiree Welfare, Pension, and Training, LECET,
LMCC, and CAICA Funds, and the Union for dues in the total
amount of $76, 101.43. A true and correct copy of the audit
report is attached hereto. (Exhibit 2, Affidavit of R. Lacey
and audit report).
respective Agreements and Declarations of Trust of the
Laborers Funds, to which this Company is bound require
payment of liquidated damages in the amount of 20 percent of
the principal for the Welfare, Retiree Welfare Pension and
Training Funds and ten percent for Union dues and for the
LMCC, CAICA and LECET Funds. Interest is owed at the rate of
12% on all delinquent amounts owed from the date of the
delinquency forward. With respect to the audit report
prepared (adding the Funds at the rate of 20% and the
Union/ancillary Funds at 10% penalty) the total amount of
liquidated damages is $14, 954.00. (Affidavit of Lacey adding
$14, 688.21 plus $266.04, Exhibit 2).
Interest has been determined for unpaid Funds'
contributions in the amount of $4, 704.93, for amounts owed
through June 19, 2018. (Affidavit of Ryan Lacey, ¶5,
Audit fees charged to the Funds for the preparation of this
report were $630.00. (Affidavit of Ryan Lacey, ¶6,
According to the collective bargaining agreement, Article IX,
paragraph 1 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, Pension and Welfare Trust
Contributions during the term of the Agreement. The Company
entered into a payment plan for a cash bond which is attached
hereto as Exhibit 4 and is attached to the Complaint as
Exhibit B, dk# 1-2. It provides for payment of $5, 000.00, by
$250.00, per month payments, monthly. No. payments have been
received nor has a surety bond been posted. (Affidavit of
Ryan Lacey, Exhibit 2, and Exhibit 4).
Reasonable attorneys' fees and costs are established by
an affidavit of Karen I. Engelhardt, plaintiffs' counsel.
This affidavit reflects that based on hourly records the
amount of $3, 595.00 is owed to the Funds' for
counsel's attorney's fees which includes the amount
of $400.00 to reimburse its costs, consisting of filing fees.
(Exhibit 3, Affidavit of Karen I. Engelhardt). Attorneys'
fees are owed pursuant to ERISA, 29 U.S.C. § 1132(g)(2),
and pursuant to the terms of the collective bargaining
agreements and Trust Agreements.
Plaintiffs drafted a proposed judgment order for a total
judgment against the ...