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Plumbers Pension Fund v. U.S. Plumbing & Sewer, Inc.
United States District Court, N.D. Illinois, Eastern Division
January 14, 2020
PLUMBERS' PENSION FUND, LOCAL 130, U.A., PLUMBERS' WELFARE FUND, LOCAL 130, U.A., THE TRUST FUND FOR APPRENTICE AND JOURNEYMAN EDUCATION AND TRAINING, LOCAL 130, U.A., PLUMBERS' RETIREMENT SAVINGS PLAN FUND, LOCAL 130, U.A., and CHICAGO JOURNEYMEN PLUMBERS' LOCAL UNION 130, U.A., GROUP LEGAL SERVICES PLAN FUND, Plaintiffs,
U.S. PLUMBING & SEWER, INC. and JOHN DIFOGGIO, individually, Defendants.
Michael J. McGuire Attorney for Plaintiffs
MOTION FOR JUDGMENT IN SUM CERTAIN AGAINST DEFENDANT
the PLUMBERS' PENSION FUND, LOCAL 130, U.A. et. el.,
(hereafter “Plaintiffs”) by and through their
attorneys Michael J. McGuire and Gregorio & Marco, Ltd.
hereby move this Honorable Court to Enter a Judgment in a Sum
Certain against Defendant JOHN DIFOGGIO, (hereafter
“DiFoggio”). In support of their Motion,
Plaintiffs state as follows:
1. Plaintiffs filed their motion for Judgment on the
Pleadings against Defendant DiFoggio, under Counts II and III
of the Second Amended Complaint on August 28,
2. This Honorable Court granted Plaintiffs motion for
Judgement on the Pleadings against DiFoggio under Counts II
and III per written Order dated October 25, 2019, Document
number 38. A true and correct copy of the Order is attached
as Exhibit A.
3. The parties have not been able to come to an agreement as
to the damages owed by DiFoggio under Counts II and III of
the Second Amended Complaint and Plaintiff is bringing this
motion for entry of a Judgment in a Sum Certain against
4. This Court under Count II found that DiFoggio was an
employer under ERISA and was liable to the
Plaintiffs for unpaid contributions to the various Trust
Funds for the time period of December 5, 2018 to the present.
5. Defendant, DiFoggio failed to remit fringe benefit
contribution reports and contributions for the months of
December 2018, January 2019 and February 2019 in the total
amount of $99, 150.66. A true and correct copy of the fringe
benefit reports are attached as Exhibit B.
Please also see Exhibit C, Affidavit of
6. Defendant, DiFoggio has not made any payments to the
Plaintiffs for the contributions shown to be due for December
2018, January 2019 and February 2019. See Exhibit
C, Paragraph 9.
7. This Court under Count III found that DiFoggio breached a
contract between himself and the Fund and was personally
liable for the breach.
8. Pursuant to the contract, attached as Exhibit
D, at Paragraphs 2 and 8, DiFoggio personally
guaranteed payment of $39, 156.63.
9. DiFoggio made no payments under the contract to the
Plaintiffs. See Exhibit C, Paragraph 9,
affidavit of Anthony Rottman.
10. Plaintiffs, through third party collection efforts
against surety bonds and through mechanics' liens
collected a total of $74, 860.08 which has been applied to
the outstanding amounts owed by DiFoggio. Exhibit
C, Paragraph 10.
11. DiFoggio owes the Plaintiffs the total of $138, 307.29 in
missing fringe benefit contributions less amounts collected
in the amount of $74, 860.08 for a total of $63, ...