United States District Court, N.D. Illinois, Eastern Division
FOX VALLEY & VICINITY CONSTRUCTION WORKERS WELFARE FUND, et al., Plaintiffs,
COLELLA CONCRETE, INC., an Illinois corporation, FRANCO COLELLA, an individual, Defendants.
Cecilia M. Scanlon Attorney for the Plaintiffs BAUM SIGMAN
AUERBACH & NEUMAN, LTD.
PLAINTIFFS' MOTION TO ENFORCE THE SETTLEMENT
AGREEMENT AND RELEASE AND ENTER JUDGMENT AGAINST
L. ELLIS, JUDGE
COME Plaintiffs, FOX VALLEY & VICINITY CONSTRUCTION
WORKERS WELFARE FUND, et al., by their attorneys,
and move the Court for the entry of an order to enforce the
terms of the Settlement Agreement and Release entered into
between the parties in June 2019. In support of the Motion,
Plaintiffs state as follows:
action was originally brought by the Plaintiffs, the Trustees
of the jointly- administered, labor-management employee
benefit plans collectively known as the Fox Valley &
Vicinity Construction Workers Fringe Benefit Funds, alleging,
inter alia, that Defendants breached their
obligations under the terms of the collective bargaining
agreement entered into with Operative Plasterers' &
Cement Masons' International Association, Local No. 11
and the Agreements and Declarations of Trust under which the
Plaintiff Funds are maintained. Specifically, Plaintiffs
allege that Defendants failed to submit contribution reports
and remit payment of fringe benefit contributions due thereon
for work performed on its behalf by beneficiaries of the
Plaintiff Funds. In addition, Defendants failed to obtain a
$25, 000 wage and welfare bond. The Complaint was brought
pursuant to the Employee Retirement Income Security Act of
1974, as amended, 29 U.S.C. §§1132, 1145.
June 2019, a Settlement Agreement and Release incorporating
the terms for settlement agreed to by the parties was
executed on behalf of Defendants, Colella Concrete, Inc. and
by Franco Colella, an individual (a copy of the Settlement
Agreement and Release is attached as Exhibit 1).
July 10, 2019, this action was dismissed without prejudice
and with leave to reinstate by September 30, 2019 (a copy of
the Notification of Docket Entry entered on July 10, 2019
[Dkt. No. 22] is attached as Exhibit 2).
July 10, 2019, this Court entered an Agreed Order of
Dismissal (a copy of the Agreed Order of Dismissal entered on
July 10, 2019 [Dkt. No. 23] is attached as Exhibit 3).
Pursuant to the terms of the Settlement Agreement and
Release, the total amount of $14, 510.16 was to be paid in
five (5) monthly installments of $2, 902.03 each, due on May
11, 2019, June 15, 2019, July 15, 2019, August 15, 2019 with
a final payment of $2, 902.04 due on September 15, 2019.
September 30, 2019, Plaintiffs filed a Motion to Reopen the
Case for the limited purpose of allowing Defendants
additional time to submit the fifth (final) installment of
$2, 902.04, which was due on September 15, 2019. The motion
was set for hearing on October 9, 2019.
October 8, 2019, this Court granted Plaintiffs' Motion to
Reopen the Case for a period of 45 days. The case was
reopened through November 22, 2019 (a copy of the
Notification of Docket Entry entered on October 8, 2019 [Dkt.
No. 26] is attached as Exhibit 4).
October 16, 2019, Plaintiffs' counsel received
Defendants' fifth (final) installment of $2, 902.04 (a
copy of check no. 21863 in the amount of $2, 902.04 is
attached as Exhibit 5).
November 4, 2019, Plaintiff Funds notified Plaintiffs'
counsel that check no. 21863 in the amount of $2, 902.04 was
returned twice by its bank indicating “non sufficient
funds.” 10. On November 4, 2019, Plaintiffs'
counsel wrote to Defendant's counsel by e-mail advising
that the Defendants' fifth (final) installment of $2,
902.04 was returned by its bank indicating “non
sufficient funds.” Plaintiffs' counsel requested
that Defendant's counsel contact his client and have
Defendants immediately submit a replacement check (a copy of
the November 4, 2019 letter from Plaintiffs' counsel to
Defendant's counsel is attached as Exhibit 6).
November 15, 2019, Plaintiffs' counsel received an e-mail
from Defendant's counsel advising that Defendant Franco
Colella advised him on November 4, 2019 that he would replace
the NSF check within two days. Defendant's counsel also
advised that November 4, 2019 was the last contact he had
with his client and he has not been able to get in contact
with his client since that time.
all the reasons stated, the Plaintiffs hereby move the Court
for the entry of an Order enforcing the Settlement Agreement
and Release and entering judgment against Defendants, Colella