United States District Court, N.D. Illinois, Eastern Division
SHEET METAL WORKERS LOCAL 265 WELFARE FUND, et al., Plaintiffs,
DYNAMIC AIR SOLUTIONS, LLC, an Illinois limited liability company, Defendant.
Cecilia M. Scanlon Attorney for the Plaintiffs BAUM SIGMAN
AUERBACH & NEUMAN, LTD.
PLAINTIFFS' MOTION TO REOPEN CASE FOR THE LIMITED
PURPOSE OF ENFORCING THE TERMS OF THE SETTLEMENT AGREEMENT
AND ENTERING JUDGMENT AGAINST DEFENDANT AND KIPP
COME Plaintiffs, SHEET METAL 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 and filed with this Court on
July 13, 2018. In support of the Motion, Plaintiffs state as
action was originally brought by the Plaintiffs, the Trustees
of the jointly- administered, labor-management employee
benefit plans collectively known as the Sheet Metal Workers
Local 265 Fringe Benefit Funds, alleging, inter
alia, that Defendant breached its obligations under the
terms of the collective bargaining agreement entered into
with SMART 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,
July 13, 2018, a Notice of Dismissal incorporating the
Settlement Agreement and Promissory Note was filed with this
Court (a copy of the Notice of Dismissal and Settlement
Agreement and Promissory Note attached thereto is attached as
July 16, 2018, this Court dismissed this cause of action
pursuant to the parties' Notice of Dismissal (a copy of
the Court's Notification of Docket Entry dated July 16,
2018 is attached as Exhibit 2).
Defendant agreed that it owed the total amount of $12, 813.00
for contributions, $1, 281.30 for liquidated damages, and $1,
916.75 for attorneys' fees and costs, for the
contribution months of August 2017 through November 2017, as
described in Paragraphs 3 and 4 of the Settlement Agreement.
Plaintiffs agreed to reduce the liquidated damages due from
Defendant by one-half to $651.29. Accordingly, the parties
agreed Defendant would pay Plaintiffs $15, 381.04 over a
period of 15 months pursuant to the Promissory Note attached
to the Settlement Agreement.
Defendant also agreed to remain current with respect to the
submission of monthly contribution reports and the payment of
fringe benefit contributions due throughout the period of the
Paragraph 7 of the Settlement Agreement further provides that
if Defendant fails to timely submit the payments set forth in
the Promissory Note or fails to submit current reports and
contributions as they become due during the payment schedule,
Defendant would be considered in default of the Settlement
Agreement. The Plaintiffs would be entitled to file a motion
with the court to reinstate the case for the limited purpose
of entering judgment against Defendant and Kipp Sobieski for
all unpaid installments including $651.29 for the waived
liquidated damages and the Plaintiffs' attorneys'
fees and costs incurred as a result of filing suit, pursuing
a motion for default judgment and enforcement of the
the event of Defendant's breach of the terms of the
Settlement Agreement and Promissory Note, Plaintiffs'
counsel would notify Defendant's counsel, in writing, of
the breach and if within five (5) business days Defendant has
not cured the breach, the Plaintiffs would be entitled to
move the Court to enforce the Settlement Agreement and
request that judgment be entered against Defendant and Kipp
Sobieski for the balance due on the Promissory Note and any
additional costs and reasonable attorneys' fees that
become due and owing during the term of the Promissory Note.
July 9, 2019, Plaintiffs' counsel sent Defendant's
counsel a letter by both email and U.S. Mail regarding the
failure of the Defendant to abide by the terms of the
Settlement Agreement and Promissory Note (a copy of the July
9, 2019 letter from Plaintiffs' counsel to
Defendant's counsel is attached hereto as Exhibit 3).
Defendant has not submitted the 13th and 14th installments
due on June 28, 2019 and July 26, 2019 pursuant to the terms
of the Settlement Agreement and Promissory Note.
all the reasons stated, the Plaintiffs hereby move the Court
for the entry of an Order reopening this action for the
limited purpose of enforcing the terms of the Settlement
Agreement and Promissory Note and entering judgment against
the Defendant and Kipp Sobieski. Specifically, Plaintiffs
A. That judgment be entered in favor of Plaintiffs and
against Defendant, Dynamic Air Solutions, LLC, and Kipp
Sobieski, to include the amount of $2, 127.84, being the
total amount remaining due for contributions, liquidated
damages, and attorneys' fees and costs for the time
period August 2017 ...