MOTION TO REINSTATE THE CASE AND ENTER JUDGMENT
GERALDINE SOAT BROWN, District Judge.
Now come Plaintiffs, the Chicago Regional Council of Carpenters Pension Fund, et al., by their attorney, Travis J. Ketterman of Whitfield McGann & Ketterman, and respectfully requests that this Honorable Court reinstate the case and enter final judgment for the amounts found to be owed. In support of the motion, the Plaintiffs state as follows:
1. This action arises under Section 502 of the Employee Retirement Income Security Act and Section 301 of the Taft-Hartley Act. (29 U.S.C. §§1132 and 185). Jurisdiction is founded on the existence of questions arising thereunder.
2. Plaintiffs and Defendants entered into an Agreed Order of Dismissal on June 4, 2015. (Exhibit A — Agreed Order of Dismissal).
3. The Defendants made the following payments on the dates listed:
4. On October 6, 2015, the Funds' attorney emailed the Defendants' attorney regarding the Defendants' late payments in August and September. The Defendants' attorney responded on October 7, 2015. (Exhibit B).
5. The Funds received an additional payment of $4,000.00 from the Defendants on October 14, 2015, but the Defendants remained delinquent in the settlement payments.
6. On November 30, 2015, the Funds' attorney and the Defendants' attorney exchanged a series of emails that discussed the delinquencies of the Defendant under the terms of the Agreed Order. (Exhibit C).
7. As a result of the email exchange on November 30, 2015, the Defendants did submit a check for $6,000 on December 7, 2015, but did not submit any additional payments.
8. On February 1, 2016, the Funds' attorney emailed the Defendants' attorney to provide an accounting of amounts owed and amounts paid. The email reiterated that the case must be reinstated prior to March 1, 2016 under the terms of the Agreed Order. Defendants' attorney acknowledged the email. (Exhibit D).
9. The Defendants have made no payments to the Funds since December 7, 2015.
10. In addition, Paragraph 3 of the Agreed Order of Dismissal provided:
11. The Defendants breached Paragraph 1 of the Agreed Order of Dismissal by failing to make the agreed upon monthly installment payments to the Plaintiffs. The Defendants owes the Plaintiffs $34,306.42 under the Agreed Order of Dismissal. (Exhibit E — Sworn Declaration of John Libby).
12. The additional accrued interest since the June 4, 2015 Agreed Order of Dismissal was entered is $1,288.67. (Exhibit E — Sworn Declaration of John Libby).
13. The Plaintiffs' attorney fees and costs expended in enforcing the June 4, 2015 Agreed Order of Dismissal was $2,026.25. (Exhibit E — Sworn Declaration of John Libby).
14. Accordingly, the Defendants owe the Plaintiffs $37,621.34, which represents $34,306.42 in remaining settlement payments, $1,288.67 in accrued interest since June 4, 2015 and $2,026.25 in attorney fees and costs enforcing the Agreed Order.
WHEREFORE, Plaintiffs pray:
Agreed Order of Dismissal
The parties hereby agree that this case has been settled and that all issues and controversies have been resolved to their mutual satisfaction.
IT IS HEREBY ORDERED
Travis:
I have sent this on to my client. I will relay any information that he provides me.
Website Link
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----Original Message----
From: Travis Ketterman <tketterman@wmklaborlaw.com>
To: Nathan Lagalo <NLagalo@crccbenefits.org>; John Schrock <jvschrock@netscape.net>
Cc: John F. Libby <JLibby@crccbenefits.org>
Sent: Tue, Oct 6, 2015 7:34 pm
Subject: Re: Barbie Builders (19045)
John,
As you will see below, Barbie Builders is behind in its settlement payments to the Funds. Please let me know when your client will become current. We do not want to have to seek a judgment based on the failure to pay.
I look forward to working with you to resolve this issue.
Travis
Sent from my iPhone
On Oct 6, 2015, at 4:17 PM, Nathan Lagalo <NLagalo@crccbenefits.org> wrote:
Travis,
Barbie Builders is not current with the payment plan. Below is a schedule of the payments made to date.
Thanks,
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THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE. If the reader of this message is not the intended recipient or an employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to this e-mail indicating in the subject line "Received in error" and then delete the message you received. Thank you very much for your cooperation. Chicago Regional Council of Carpenters Funds.
Thanks, I will let the Funds know.
Travis
Mr Ketterman:
Mr. Barbie advised that he is sending $6,000 today and another $6,000 in two weeks.
Sent from my Sprint Samsung Galaxy S® 6.
----Original message----
From: Travis Ketterman
Date: 11/30/2015 11:16 AM (GMT-06:00)
To: John Schrock
Subject: RE: Barbie Builders (19045)
As of today, Mr. Barbie owes $14,953.18. Another payment of $8,451.06 will be due on December 15.
Thanks,
Travis
Mr. Ketterman:
When I last talked to him, he advised me that he would be making a payment or two. How much does he owe as of today. Let me know and I will talk to him.
John,
Any chance that Barbie can get caught up on the settlement payments? If not, I will have to file a motion for judgment.
Thanks,
Travis
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Travis,
FYI, Barbie has not made any additional payments since 10/14/15 and will soon be over 2 months behind schedule. Below are the payments to date.
Thanks,
Nate
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE. If the reader of this message is not the intended recipient or an employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to this e-mail indicating In the subject line "Received in error" and then delete the message you received. Thank you very much for your cooperation. Chicago Regional Council of Carpenters Funds.
Travis:
I have forwarded you e-mail on to my client. Thanks for providing me this information.
John,
The last payment received from your client (Michael Barbie / Barbie Builders) was on December 7, 2015. As you will see, Barbie Builders is delinquent in the amount of $34,306.42. Below is their payment schedule to date.
The case must be reinstated prior to March 1, 2016. Please let me know your client's position and whether any additional payments will be made prior to February 12, 2016. Otherwise, I will be forced to file a motion to obtain a judgment against Michael Barbie individually under the terms of the Agreed Order of Dismissal.
Thanks,
Travis
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SWORN DECLARATION PURSUANT TO 28 U.S.C.A. § 1746
NOW COMES JOHN LIBBY, who after being duly sworn upon oath, states as follows:
1. I am the Manager of Audit and Collections for the Chicago Regional Council of Carpenters Pension Fund, the Chicago Regional Council of Carpenters Welfare Fund, the Chicago Regional Council of Carpenters Supplemental Retirement Fund, and the Chicago Regional Council of Carpenters Apprentice Training Fund ("Trust Funds") and in such capacity I am authorized to make this Declaration on behalf of the Trust Funds.
2. The Trust Funds receive contributions from numerous employers pursuant to Collective Bargaining Agreements between the employers and the Chicago Regional Council of Carpenters, ("Union"), and therefore, are multiemployer plans. (29 U.S.C. § 1002). The Trust Funds are administered at 12 East Erie, Chicago, Illinois and venue is proper in the Northern District of Illinois.
3. The Defendants are employers engaged in an industry affecting commerce that entered into a Collective Bargaining Agreement whose terms require the Defendants to pay fringe benefits to the Trust Funds.
4. The Collective Bargaining Agreement also binds the Defendants to the provisions of the Agreement and Declarations of Trust that created the Trust Funds ("Trust Agreements").
5. The Defendants are required to make contributions to the Trust Funds for each hour worked by its carpenter employees at the rate and in the manner specified in the Collective Bargaining Agreements and Trust Agreements. In addition, the Defendant is required to make contributions to the Trust Funds measured by the hours worked by subcontractors that are not signatory to a Collective Bargaining Agreement with the Union.
6. The Parties submitted an Agreed Order of Dismissal to this Court, which was entered by Judge Brown on June 4, 2015. The Agreed Order of Dismissal provided for the Defendants to remit $67,608.51 to the Trust Funds in six monthly installments beginning on June 15, 2015.
7. The Defendants violated Paragraph 1 of the June 4, 2015 Agreed Order of Dismissal by failing to pay the Plaintiffs in accord with the payment plan as provided in the Agreed Order of Dismissal.
8. The Defendant made the following payments on the dates listed:
9. In addition, Paragraph
That if the Defendant defaults on either paragraphs 1 or 2, the Plaintiffs shall have the right to reinstate this case for the sole purpose of entering Judgment for the balance owed pursuant to this Order, plus any additional unpaid ERISA contributions incurred, accrued interest, liquidated damages and Plaintiffs' attorney fees and cost expended in enforcing this order.
10. The additional accrued interest since the June 4, 2015 Agreed Order of Dismissal was entered is $1,288.67.
11. The Plaintiffs' attorney fees and costs expended in enforcing the June 4, 2015 Agreed Order of Dismissal was $2,026.25.
12. Accordingly, the Defendants owe the Plaintiffs $37,621.34, which represents $34,306.42 in remaining settlement payments, $1,288.67 in accrued interest since June 4, 2015 and $2,026.25 in attorney fees and costs enforcing the Agreed Order.
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in this Declaration is true and correct.
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