JOHN Z. LEE, District Judge.
Plaintiffs, by and through their attorneys, Dowd, Bloch, Bennett, Cervone, Auerbach, & Yokich, pursuant to Fed. R. Civ. P. 55(b)(2) and 54, respectfully move this Honorable Court, for entry of final judgment on all counts in the form of the attached proposed order or otherwise, against Defendants Stokes Excavating, Inc. ("Defendant Company") and Danny Stokes, individually, and in favor of Plaintiffs. In support of their Motion, Plaintiffs state as follows:
1. Plaintiffs filed their Complaint in this action on September 6, 2018.
2. On October 23, 2018, the Court held all Defendants in default on all counts, having failed to file an answer or otherwise respond. (Order on Motion for Default [Doc. No. 11].)
3. Counts I, II, and III of Plaintiffs' Complaint sought the production of monthly contribution reports and the associated contributions, for the months of April 2018 through the September 2018, which Defendants have since produced to Plaintiffs.
4. Defendants paid the contributions owed to the Funds for April 2018 through June 2018 on October 12, 2018, and for July 2018 through September 2018 on October 18, 2018. (Declaration of Pat Shales, attached hereto as Exhibit A, ¶ 10.) With the exception of September 2018 contributions, all contributions paid by Defendants on October 12 and October 18 were untimely.
5. The Funds are agents for the purpose of collecting employer contributions and deductions required to be paid on behalf of the Training/Apprentice Fund, the Chicago Area Independent Contractors Association ("CAICA"), the Laborers' District Council Labor Management Cooperation Committee ("LDC/LMCC"), the Laborers-Employers Cooperation and Education Trust ("LECET"), and the Construction and General Laborers' District Council of Chicago and Vicinity's Work Dues Fund ("Dues Fund") (collectively, "the Affiliated Organizations"). (Exhibit A, ¶ 7.)
6. Defendants paid Affiliated Organization contributions for April through June 2018 on October 12, 2018 and for July through September 2018 on October 15, 2018, except that the May 2018 contribution report to the Affiliated Organizations did not include payments to the CAICA, LMCC or LECET Funds. (Exhibit A, ¶ 11.) The payments for the July through August 2018 Affiliated Contributions did not include any late fees. Defendants owe contributions to the Affiliated Organizations in the amount of $129.52 for its May 2018 Delinquencies and late fees to the Affiliated Organizations for various late remittances between September 2017 through August 2018 in the amount of $503.01. (Exhibit A, ¶¶ 13-14.)
7. Under Count I, the Fund seeks unpaid contributions owed to the Affiliated Contributions for April through August 2018, liquidated damages on those contributions, interest and attorneys' fees. In addition to the amounts owed in in Paragraph 6, Defendant Company has incurred liquidated damages and interest to the Funds in the amount of $12,701.23 as a result of untimely paid contributions referenced in Paragraph 4. (Exhibit A, ¶ 14). These liquidated damages and interest are due as a matter of Defendant Company's collective bargaining agreement and ERISA, 29 U.S.C. § 1132(g)(2). (Exhibit A, ¶ 12). Accordingly, Defendant Company is liable to Plaintiffs in the amounts of $13,333.76, not including attorneys' fees and costs, as demonstrated in the chart below.
(Exhibit A, ¶ 14).
8. Defendant Company is also liable to the Funds for their attorneys' fees and costs pursuant to the terms of their collective bargaining agreement and ERISA, 29 U.S.C. § 1132(g)(2). The Funds incurred attorneys' fees and costs in the amount of $6,078.52 related to collection of Defendants' delinquencies. (Exhibit B, Affidavit of E. Rowe, ¶ 10.) Defendant Company is therefore liable under Count I for a total of $19,412.28.
9. Under Count II, the Funds seek a judgment against Defendant Company and Defendant Stokes under the Illinois Wage Payment and Collection Act ("IWPCA") for deducting union dues from employees' wages but failing to remit amounts those amounts to the Funds on a timely basis. Defendant Company deducted union dues from employees' wages for the months of April 2018 through August 2018 at the rate of 3.75% of gross wages, in the total amount of $2,973.37, which were intended for the Dues Fund, Defendant Company did not remit those amounts to the Dues Fund until October 2018. (Exhibit A, ¶ 8, 11 and Exhibit 1 thereto.) Defendants eventually remitted the deductions to the Dues Fund on October 12, and October 15, but did not do so until after the Plaintiffs filed a lawsuit and moved for entry of a default order.
10. Defendant Danny Stokes personally and actively conducted or participated in the actions of the Defendant Company described in paragraph 6. Defendant Danny Stokes, therefore, is an employer under the IWPCA, 820 ILCS 115/13, and is personally liable for his failure to properly deduct moneys from employees' wages and remit these moneys to the Dues Fund for payment of union dues on a timely basis.
11. Plaintiffs are entitled to damages at the rate of 2% per month for all underpayments under the IWPCA and are entitled to recover all costs and all reasonable attorneys' fees. 820 ILCS 115/14(a). Accordingly, Defendants Stokes Excavating, Inc. and Defendant Danny Stokes are jointly liable under Count II for the amounts owed by Defendant Company under Count I to the extent of $6,078.52, and for an additional $146.88, for a total of $6,225.40 for interest on dues deducted from employees' wages but not timely remitted to the Dues Fund for the months of April through August 2018, plus attorneys' fees and costs, as demonstrated in the chart below.
12. Under Count III, the Funds sought to hold Defendant Company and Defendant Stokes liable for converting amounts deducted from employees' paychecks for the months of April 2018 through August 2018 that were intended for the Dues Fund, but which were not remitted to the Dues Fund until October 2018, after Plaintiffs filed a lawsuit and filed a motion for entry of a default order. Defendant Company and Defendant Stokes deducted amounts from employees' wages, to which the Dues Fund had an immediate, absolute, and unconditional right to possession, and Defendant Company and Defendants Stokes continued to exercised unauthorized possession of those amounts after the Funds and Affiliated Organizations made a demand for the payment.
13. Under Count IV, Defendant Company has incurred liquidated damages and interest to the Pension Fund and Welfare Fund as a result of delinquent payment of contributions for contribution months unrelated to the contribution reports sought in Counts I through III, in the amount of $18,616.03. The Court has already entered a default judgment against Defendant Company on Count IV in favor of the Funds in the amount of $18,616.03, but denied final judgment on Count IV until judgment is entered on all counts. (Order on Motion for Default.)
A. Entering a final judgment on Counts I and IV of the Complaint, in favor of the Funds and against Defendant STOKES EXCAVATING, INC. in the amount of $38,028.31.
B. Entering a final judgment on Counts II and III of the Complaint, in favor of the Funds and against Defendants STOKES EXCAVATING, INC. and DANNY STOKES, jointly and severally, with the judgment entered against STOKES EXCAVATING, INC. under Paragraph A to the extent of $6,078.52, but not joint to the extent of $146.88, for a total of $6,225.40.
I, Patricia M. Shales, of full age, pursuant to 28 U.S.C. § 1746, hereby declare:
1. I am the Administrative Manager of the Fox Valley Laborers Fringe Benefit Funds, (the "Funds"), and in such capacity, I have personal knowledge of the matters contained in this declaration, and if necessary, I could testify to the facts contained herein.
2. I have responsibility for maintaining Stokes Excavating, Inc.'s account with respect to the Funds in this matter. Furthermore, I am in charge of keeping and maintaining records of contribution reports and contributions received by the Funds from each person, firm and corporation required to make contributions to the Funds. I have similar responsibilities on behalf of Plaintiffs for employers who are signatory to collective bargaining agreements with the Laborers' District Council of Chicago and Vicinity ("District Council") and/or Fox Valley area local unions requiring employer contributions to the Funds.
3. The Funds are multiemployer benefit plans within the meaning of Section 3(3) and 3(37) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1002(3) and (37A). The Trustees and the Funds maintain offices and conduct business within this District.
4. Defendant Stokes Excavating, Inc. (hereinafter "Stokes") has at all relevant times done business within this District and are each an employer within the meaning of ERISA Section 3(5), 29 U.S.C. § 1002(5).
5. The District Council is a labor organization within the meaning of the Labor Management Relations Act Section 101, 29 U.S.C. § 152(5).
6. Pursuant to the terms of the Agreement, signatory employers are required to make monthly contributions to the Funds on behalf of their covered employees for health, welfare, and pension benefits, in proportion to the number of hours worked by those employees.
7. The Funds are agents for the purpose of collecting employer contributions and deductions required to be paid on behalf of the Apprenticeship Fund, the CAICA Fund, the Laborers' District Council Labor Management Cooperation Committee ("LMCC"), the Laborers-Employers Cooperation and Education Trust ("LECET"), and the Construction and General Laborers' District Council of Chicago and Vicinity's Work Dues Fund ("Dues Fund"), (collectively, the "Affiliated Organizations").
8. The Agreement further requires Stokes to make contributions to the CAICA, LMCC, and LECET Funds on behalf of its employees covered by the Agreement in proportion to the number of hours worked by those employees, and to provide reports stating the amount of contributions it owes. Stokes is also required to deduct union dues from the wages earned by its employees covered by the Agreement at the rate of 3.75% of their gross wages and to remit those dues to the District Council for the Dues Fund.
9. The Affiliated Organizations have a common interest with the Funds in that they all work for the benefit of their mutual members and participants. The Affiliated Organizations have authorized the Funds to collect amounts owed to them by Stokes.
10. Notwithstanding its obligations under the Agreement and the Funds' governing trust documents, and despite demand duly made, Stokes failed to pay all contributions owed to the Funds for the period of April 2018 through June 2018 until October 12, 2018, which was untimely as to the reports for April 2018 through June 2018, and Stokes failed to pay all contributions owed to the Funds for the period of July 2018 through August 2018, until October 18, 2018, which was untimely as to the reports for July 2018 through August 2018.
11. Notwithstanding its obligations under the Agreement, and despite demand duly made, Stokes failed to pay all contributions owed to the Affiliated Organizations for the period of April 2018 through June 2018 until October 12, 2018, and only made partial payment to the Affiliated Organizations for May 2018. Notwithstanding its obligations under the Agreement, Stokes failed to pay all contributions owed to the Affiliated Organizations for the period of July 2018 through August 2018 until October 18, 2018.
12. Pursuant to the Agreement and the Funds' governing trust documents, Employers who fail to report and/or remit contributions to the Pension, Welfare, and Apprenticeship Funds are liable to pay interest on the delinquent contributions, an additional 10% in liquidated damages, which increases to 20% once a lawsuit is filed, and all costs of collection, including reasonable attorneys' fees, and court costs. Stokes owes these amounts because it did not pay contributions for April 2018 through June 2018 until October 12, 2018, and did not pay contributions for July 2018 through August 2018 until October 18, 2018, which was also only after Stokes was served with this lawsuit seeking to compel Stokes to report and pay those contributions.
13. Pursuant to the Agreement and the Funds' governing trust documents, Employers who fail to report and/or remit contributions to the LMCC, LECET, CAICA and Dues Funds, are liable to pay an additional 10% in liquidated damages, and all costs of collection, including reasonable attorneys' fees and court costs. Stokes owes late fees to the Affiliated Organizations for various late remittances between the months of September 2017 through August 2018. A copy of the late fee report is attached hereto as Exhibit 1.
14. Based on the contribution reports, Stokes is liable to the Funds and Affiliated Organizations in the amount of $13,333.76 for delinquent contributions, liquidated damages, and interest, as demonstrated in the following chart
15. Stokes is also obligated by the terms of the Agreement and the Funds' governing trust documents to pay the attorneys' fees and costs incurred by the Funds for its efforts to collect these amounts from Stokes.
Dear Contractor:
According to our records, your following report(s) were submitted late. As a result, you owe the Work Dues and Ancillary Funds an amount of $503.01 late fee.
* Under Article VI, Paragraph 2, the Working Dues Report is due no later than the 10th of the month following the month for which such deductions were made.
If you fail to remit the amount due. legal action may be initiated to collect this amount, and you will be liable for all attorney fees and court costs incurred to enforce your obligations.
Please send all your remittances to this address:
If you have any questions, please contact us at (630) 655-8765 (phone), (634) 655-8864 (fax) or by e-mail at workdues@liunachicago.org.
I,
1. I am an attorney admitted to the General Bar of this Court and the State of Illinois.
2. Since March 2014, I have been an associate in the firm Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich ("Firm"), where I practice exclusively in the areas of labor, employment, and employee benefits law. In my position at the Firm, I represent the Plaintiffs in Case Number 18-cv-6086.
3. This affidavit is based on my personal knowledge and, if necessary, I could testify to the facts contained in this affidavit.
4. The rate which our firm charges the Funds is $375.00 per hour for partners' work, $221.00 per hour for work completed by me and other associates, and $110.00 per hour for law clerks' work. I believe these rates are reasonable in light of the Firm's experience and the nature of the case.
5. Through November 12, 2018 the Firm has devoted a total off 14.85 hours to representation of the Funds in connection with this case, including communicating with the Funds and Defendants in connection with this case, preparing the Complaint and other related documents, arranging for service, filing a motion for entry of a default order, attending the hearing, reviewing contribution reports submitted by Defendants, calculating amounts owed, and preparing a motion for final judgment.
6. In addition to the fees, the Funds have incurred costs in the amount of $559.22, including $400.00 in filing fees, $150.00 in service fees, and $9.22 in mailing and copying fees.
7. Based on the above rates and 14.85 hours of work through November 12, 2018, the Funds have incurred attorneys' fees and costs totaling $4,273.37 related to this case.
8. After November 12, and through the time of filing this affidavit, the Firm has devoted or will devote an additional 5.25 hours towards resolving this case, including preparing affidavits in support of this motion, corresponding with the Funds concerning damages, calculating amounts owed, and reviewing, revising, supplementing and filing the documents comprising this motion for final judgment. As a result, the Funds have incurred or will incur an additional $1,252.65 in attorneys' fees for services provided after November 12 through the date this affidavit is filed.
9. I anticipate that after this affidavit is filed, I will devote at least 2.5 additional hours to this case, in preparing for and attending the hearing on the motion for final judgment, examining any order that the Court may enter, and informing my clients and the Defendants of the outcome of the hearing. The Funds will therefore incur an additional $552.50 in attorneys' fees for services provided after the date this affidavit is filed.
10. Accordingly, the total amount of attorneys' fees and costs incurred by the Funds as a result of this action will be $6,078.52, as demonstrated in the chart below:317312307307321317312
I have read the foregoing affidavit and swear that it is true and correct to the best of my knowledge, information, and belief.
