Motion for Entry of Judgment
Plaintiffs, by its attorney, Daniel P. McAnally, move this Honorable Court for an entry of judgment and in support Plaintiffs state:
1. This is and ERISA trust fund case seeking delinquent contributions, interest, liquidated damages, dues check-off and attorney fees.
2. On April 3, 2014 this Court granted the Trust Funds' motion, reinstated this case, and set the matter over for prove-up of the Trust Funds' damages due to Defendants' failure to honor an agreed payment plan.
3. The Defendants did not make the payments as required by the Agreement. Pursuant to the Agreement, if the Defendant defaulted on the payments, the Trust Funds retained the right to request judgment for the balance of the amounts owed under Agreement plus any accrued contributions, interest, liquidated damages and attorney fees. (Exhibit A)
4. The Defendants submitted the monthly contribution reports but failed to submit the ERISA contributions shown to be owed in the amount of $30,760.13 for the months of January 2014 through February 2014. The Defendants also failed to remit the union dues it withheld from the employees' wages. The amount of dues withheld is $1,275.15 for the period February 2014. (Exhibit B, affidavit of John Libby)
5. Defendant, Arturo Chavez, is personally liable for the dues pursuant to the Agreement and also under the Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq. Arturo Chavez is an officer of Merdienne Corporation and knowingly permitted and willfully refused to remit dues on behalf of its employees in violation of the Wage Act. 820 ILCS 115/14.
6. Merdienne Corporation owes interest on the unpaid ERISA contributions in the amount of $51.68 pursuant to the Trust Agreements and 29 U.S.C. § 1132(g)(2)(B). (Exhibit B)
7. Merdienne Corporation owes liquidated damages on the unpaid ERISA contributions in the amount of $23,294.09 for the period May 2013 through February 2014 pursuant to the Collective Bargaining Agreements, the Trust Agreements and 29 U.S.C. § 1132(g)(2)(C)(ii). (Exhibit B)
8. The Defendant owes the sum of $7,453.00 for necessary and reasonable attorney fees and costs of $455.00 which are collectible pursuant to the Agreement and under the terms of the Collective Bargaining Agreement, the Trust Agreements and 29 U.S.C. § 1132(g)(2)(D). (Exhibit C, affidavit of Daniel P. McAnally)
WHEREFORE, Plaintiffs pray that their motion for entry of judgment be granted against Merdienne Corporation in the amount of $63,289.05 and against Arturo Chavez in the amount of $1,275.15.
EXHIBIT A
Agreed Order of Dismissal
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:
EXHIBIT B
Sworn Declaration Pursuant To 28 U.S.C.A. § 1746 John Libby, Supervisor, Audit and Collections
SWORN DECLARATION PURSUANT TO 28 U.S.C.A. § 1746
John Libby declares as follows:
1. I am the Manager, Audits & Collections for the Chicago Regional Council of Carpenters Pension Fund and the Chicago Regional Council of Carpenters Welfare Fund ("Trust Funds") and in such capacity I am authorized to make this Declaration on behalf of the Trust Funds.
2. The Defendant entered into an "Agreed Order of Dismissal" ("Agreement") with the Trust Funds that required partial payments to the Trust Funds to satisfy the agreed upon settlement amount, a copy is attached to this motion as Exhibit A.
3. The Defendant did not make the payments as required by the Agreement. As a result, the Defendant is in default. Pursuant to the Agreement, if the Defendant defaulted on the payments, the Trust Funds retained the right to request judgment for the balance of the amounts owed under Agreement plus any accrued contributions, interest, liquidated damages and attorney fees.
4. The Defendant submitted contribution reports for the period January 2014 and February 2014 but did not pay all contributions due. The balance owed on the reports $30,760.13. The Defendant also failed to remit the union dues it withheld from the employees' wages. The amount of dues withheld is $1,275.15 for the month, February 2014.
5. Because of its failure to pay contributions in a timely manner, the Trust Agreement and Collective Bargaining Agreement mandate the assessment of liquidated damages. The liquidated damages calculation was based on the rate set forth in the controlling Trust Agreements, which is 1.5% compounded per month. The amount of liquidated damages owed is $23,294.09 for the period May 2013 through February 2014.
6. The interest calculation is based on the ERISA Section awarding such interest, 29 U.S.C. § 1132(g)(2) and because the relevant Trust Agreements do not specify the rate of interest, the calculations were done pursuant to Section 6621 of the Internal Revenue Code, The amount of interest owed is $51.68.
7. A breakdown of the Plaintiffs' claim for
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.
Exhibit C
SWORN DECLARATION PURSUANT TO 28 U.S.C.A. § 1746
Daniel P. McAnally declares as follows:
1. I am an associate of the law firm of Whitfield McGann & Ketterman and am licensed to practice law in the State of Illinois and in the U.S. Dist. Court for Northern District of Illinois, Eastern Division.
2. I have personal knowledge of the facts stated herein and if called to testify in this matter, I can competently testify to such facts from my own such knowledge.
3. I have in excess of 20 years experience representing trustees of employee benefit plans, including the prosecution of Federal Court litigation to collect delinquent employer contributions.
4. The Collective Bargaining Agreement and the Trust Agreements under which this action is based provide for the payment of attorneys' fees and costs incurred if the Trust Funds utilize legal counsel to collect unpaid ERISA contributions.
5. I have devoted 38.23 hours in connection with the this case at the rate of $195.00 per hour. The total attorney fees billings is $7,453.00.
6. I have spoken with four other lawyers from four different labor law firms who practice this type of ERISA trust fund litigation. Based on my knowledge and experience, the rates charged by the hour in this case are less than or equal to the usual and customary rates charged by other law firms doing similar work in the United States District Court for the Northen District of Illinois.
7. In addition, the filing fee was $400.00 and the fees for service of process were an additional $55.00. These costs total $455.00.
8. I certify that the attorney fees and costs totaling $7,908.00 were necessary and reasonable.
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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