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Fox Valley & Vicinity Construction Workers Welfare Fund v. Colella Concrete, Inc.

United States District Court, N.D. Illinois, Eastern Division

November 19, 2019

FOX VALLEY & VICINITY CONSTRUCTION WORKERS WELFARE FUND, et al., Plaintiffs,
v.
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 DEFENDANTS

          SARA L. ELLIS, JUDGE

         NOW 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:

         1. This 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.

         2. In 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).

         3. On 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).

         4. On 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).

         5. 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.

         6. On 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.

         7. On 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).

         8. On 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).

         9. On 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).

         11. On 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.

         12. For 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 ...


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