AMENDED AGREED MOTION FOR ENTRY OF JUDGMENT
JOHN Z. LEE, District Judge.
Plaintiffs Midwest Operating Engineers Welfare Trust Fund and Midwest Operating Engineers Pension Trust Fund (collectively, "the Funds"), move to enter judgment against Defendant Allied Stone, a division of RiverStone Group, Inc. ("Allied Stone"), for unpaid contributions owed, interest, liquidated damages, costs, and attorneys' fees under Section 515 of the Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. § 1145. In support of this Motion, the Funds state that:
1. On November 3, 2014, the Funds filed suit against Allied Stone for unpaid contributions, interest, liquidated damages, and attorneys' fees and costs owed under a collective bargaining agreement with Local 150 of the International Union of Operating Engineers, AFL-CIO ("Local 150" or "the Union"), which was effective from May 3, 2010, through May 3, 2015 (Complaint ¶ 5, Ex. A, Doc. #1-1, filed 11/03/14, PageID #5-34).
2. On March 30, 2016, this Court entered its "Memorandum Opinion and Order," denying Allied Stone's Motion for Summary Judgment, and granting the Funds' Motion for Summary Judgment (Doc. #40, filed 03/30/16, at Page 12 of 12, PageID #1132).
3. Pursuant to previous agreement by the parties, Allied Stone has reported to Fund counsel the hours worked by its employees from September 2014 through April 2015 (Exhibit A, Certification of Thomas M. Bernstein (hereinafter "Bernstein Cert."), ¶ 3, Attachment 1). Counsel for Allied Stone has stated that the Company will stipulate to the accuracy of these hours worked.
4. Based upon the hours worked as reported by Allied Stone, the MOE Funds have calculated unpaid contributions owed for the entire timeframe to be $294,467.27 (Ex. A, Bernstein Cert. ¶ 4).
5. Pursuant to Section 502(g) of ERISA, the Funds are entitled to recover interest on those unpaid contributions. 29 U.S.C. § 1132(g)(2)(B). The Funds have calculated interest based upon an annual rate of 8 percent to be $31,984.97 (Ex. A, Bernstein Cert. ¶ 4).
6. Pursuant to Section 502(g) of ERISA, the Funds are entitled to liquidated damages not to exceed 20 percent. 29 U.S.C. § 1132(g)(2)(C)(ii). The Funds have calculated liquidated damages for the unpaid contributions in the amount of $58,893.45 (Ex. A, Bernstein Cert. ¶ 4).
7. Pursuant to Section 502(g) of ERISA, the Funds are entitled to an award of reasonable attorneys' fees and costs. 29 U.S.C. § 1132(g)(1). The Funds have incurred costs in this action in the total amount of $535.00 (Ex. A, Bernstein Cert. ¶ 4).
8. The Funds have incurred attorneys' fees in this action in the total amount of $31,100.14 (Ex. A, Bernstein Cert. ¶ 5).
WHEREFORE, the Midwest Operating Engineers Welfare Trust Fund and the Midwest Operating Engineers Pension Trust Fund respectfully request that the Court enter judgment for unpaid contributions, interest, liquidated damages, and attorneys' fees and costs in the amounts set forth below (a Proposed Order to this effect is attached hereto as Exhibit B):
Unpaid contributions for hours worked September 2014 through April 2015 $294,467.27
Interest on unpaid contributions based upon annual interest rate of 8 percent: $31,984.97
Liquidated damages for unpaid contributions: $58,893.45
Costs: $535.00
Attorneys' fees: $31,100.14
____________________________________________________________________________________________
Total: $416,980.83
===========
EXHIBIT A
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
Midwest Operating Engineers Welfare
Trust Fund and Midwest Operating
Engineers Pension Trust Fund,
Plaintiffs,
Case No. 14 C 8752
v.
Allied Stone, a division of RiverStone
Group, Inc., an Illinois corporation,
Defendant.
CERTIFICATION OF THOMAS M. BERNSTEIN
I, Thomas M. Bernstein, state and certify pursuant to 28 U.S.C. § 1746 as follows:
1. My name is Thomas M. Bernstein. I am currently employed as the Administrative Manager of the Midwest Operating Engineers (MOE) Fringe Benefit Funds, including the MOE Health and Welfare Fund and the MOE Pension Fund. I have full personal knowledge of the facts stated herein and could so testify in Court if called upon to do so.
2. Since 2005, I have worked for the MOE Fringe Benefit Funds. Since August 2013, I have served as Administrative Manager of the Funds. In that capacity, I am responsible for administering benefits under the various benefit plans, the management of Fund employees, and keeping and maintaining records of the Funds. One of my responsibilities is oversight of the Funds' Delinquency Department which calculates and seeks to collect unpaid contributions owed the Funds.
3. I am familiar with an employer known as Allied Stone, a division of RiverStone Group, Inc., which had been signatory to a collective bargaining agreement with Local 150 of the International Union of Operating Engineers, AFL-CIO, and which the Funds sued to collect unpaid contributions to the MOE Health and Welfare and Pension Funds. It is my understanding that pursuant to agreement by the parties in that lawsuit, the Employer has been submitting to the Funds' counsel a report of the hours worked by its employees during the disputed time period who would be participants in the Health and Welfare and Pension Funds and upon whom contributions are owed. A true and correct copy of the most recent report is attached hereto as Attachment 1.
4. Based upon the hours worked reported by Allied Stone, the MOE Delinquency Department has calculated contributions owed under federal law, the terms of the collective bargaining agreement between the Union and Allied Stone, as well as the Funds' established rates for calculating interest and liquidated damages. A true and correct copy of the calculations made by our Delinquency Department for all amounts owed by Allied Stone is attached hereto as Attachment 2.
5. The Funds have incurred costs in this action in the total amount of $535.00 for the Complaint-filing and service fees.
6. The Funds have incurred attorneys' fees in this action in the total amount of $31,100.14. A true and accurate summary of attorney hours and rates is attached hereto as Attachment 3.
4/5/16
___________________ _______________________
Date Thomas M. Bernstein
ATTACHMENT 1
6884
RETRO FUND PAYMENTS
ALLIED STONE QUARRY
1701 5TH AVENUE
MOLINE IL 61265
HOURS HOURS HOURS HOURS HOURS HOURS HOURS HOURS TOTALS
SOCIAL SECURTY EMPLOYEE 9/14 10/14 11/14 12/14 01/15 02/15 03/15 04/15
[REDACTED\] ALLEN, JACOB L. 168.00 192.68 239.04 117.76 0.00 120.14 235.93 258.20
SICK-NON FMLA
[REDACTED\] BERTHOUD, CHRISTOPHER 149.89 TERMED 0.00 0.00 0.00 0.00 0.00 0.00
[REDACTED\] BROWN, RICKY D. 185.79 247.19 239.97 205.69 105.12 131.31 TO SAL ASST SUPT 2/23/15
[REDACTED\] CARNES, BRYCE M 211.75 268.50 252.35 176.11 45.70 0.00 221.00 246.80
FMLA 1/15/15 SEE BELOW FOR FMLA HRS
[REDACTED\] CROCKER, DON G. 200.80 227.00 259.80 175.60 150.00 185.45 261.80 175.85
[REDACTED\] FINK, MICHAEL W. 193.75 268.95 261.85 175.75 132.45 163.80 241.05 249.05
[REDACTED\] HAMPTON, RODGER L. 174.05 272.50 249.85 176.70 173.85 167.75 236.94 220.20
[REDACTED\] HARE, JESSE M. 196.87 240.90 291.13 175.15 125.46 193.68 255.54 253.23
[REDACTED\] KIGGINS, TONY L. 167.88 225.75 240.17 157.08 122.48 161.12 231.63 260.24
[REDACTED\] LEAB, JOHN M. 78.70 258.57
hire date 12/8/14
not required to contribute until 3/18/15
[REDACTED\] LONG, THOMAS J. 200.67 239.84 277.95 175.15 130.27 171.90 263.66 264.26
[REDACTED\] OETH, JOHNNY 112.86 225.75 239.24 167.74 128.98 170.24 243.53 259.73
[REDACTED\] PRATT, RANDALL E. 169.57 241.17 271.88 174.92 120.84 154.99 244.38 248.08
[REDACTED\] SPENCE, STEVEN L. 245.30 283.30 322.60 182.60 172.40 209.05 319.85 303.80
[REDACTED\] WOODRUFF, BLAKE C. 176.10 240.50 274.10 205.05 125.65 151.65 242.25 259.25
2553.28 3174.03 3419.93 2265.30 1533.20 1981.08 3076.26 3257.26
FUND CONTRIBUTION RATES
5/14 THROUGH 8/14
WELFARE $ 8.35 $ 21,319.89 $ 26,503.15 $ 28,556.42 $ 18,915.26 $ 12,802.22 $ 16,542.02 $ 25,686.77 $ 27,198.12 $ 177,523.84
PENSION $ 5.40 $ 13,787.71 $ 17,139.76 $ 18,467.62 $ 12,232.62 $ 8,279.28 $ 10,697.83 $ 16,611.80 $ 17,589.20 $ 114,805.84
RMSP $ 0.20 $ 510.66 $ 634.81 $ 683.99 $ 453.06 $ 306.64 $ 396.22 $ 615.25 $ 651.45 $ 4,252.07
FMLA — WE PAY ON H&W ONLY
[REDACTED\] CARNES, BRYCE M 56.00 160 40
CONTRIBUTION RATES
5/14 THROUGH 8/14
FUND
H&W $ 8.35 $ 467.60 $ 1,336.00 $ 334.00 $ 2,137.60
_____________
$298,719.34
ATTACHMENT 2
MONTH WELFARE PENSION REF APPR VACATION CRF TOTAL
"NR" REPORTS W/O $
Sep-14 $21,319.89 $13,787.71 $35,107.60
Oct-14 $26,503.15 $17,139.76 $43,642.91
Nov-14 $28,556.42 $18,467.62 $47,024.04
Dec-14 $18,915.26 $12,232.62 $31,147.88
Jan-15 $12,802.22 $8,279.28 $21,081.50
Jan-15 $467.60 $467.60 FMLA
Feb-15 $16,542.02 $10,697.83 $27,239.85
Feb-15 $1,336.00 $1,336.00 FMLA
Mar-15 $25,686.77 $16,611.80 $42,298.57
Mar-15 $334.00 $334.00 FMLA
Apr-15 $27,198.12 $17,589.20 $44,787.32
TOTAL $179,661.45 $114,805.82 $0.00 $0.00 $0.00 $0.00 $294,467.27
"NR" 20% LIQUIDATED DAMAGES
Sep-14 $4,263.98 $2,757.54 $7,021.52
Oct-14 $5,300.63 $3,427.95 $8,728.58
Nov-14 $5,711.28 $3,693.52 $9,404.81
Dec-14 $3,783.05 $2,446.52 $6,229.58
Jan-15 $2,560.44 $1,655.86 $4,216.30
Jan-15 $93.52 $0.00 $93.52
Feb-15 $3,308.40 $2,139.57 $5,447.97
Feb-15 $267.20 $0.00 $267.20
Mar-15 $5,137.35 $3,322.36 $8,459.71
Mar-15 $66.80 $0.00 $66.80
Apr-15 $5,439.62 $3,517.84 $8,957.46
TOTAL $35,932.29 $22,961.16 $0.00 $0.00 $0.00 $0.00 $58,893.45
"NR" 10% INTEREST FOR 9/14-4/15: (through April 2016) (LESS RMSP) $31,984.97
TOTAL "FRINGE BENEFITS": $385,345.69
ADMINISTRATIVE DUES
TOTAL $0.00
TOTAL ADMINISTRATIVE DUES: $0.00
TOTAL: $385,345.69
ATTACHMENT 3
MOE, et al. v. Allied Stone
Case No. 14 C 8752
Time for Bryan Diemer
Date Description Time
06/17/2015 Review MSJ filed by Allied; office conference regarding
MSJ/response 1.5
06/25/2015 Review cases cited in Allied's brief; legal research on law
of judgments/preclusion; review materials/decision in
Cleveland 4.5
07/01/2015 Review cases; drafting 6
07/09/2015 Work on brief 4.5
07/14/2015 Draft/review/edit brief 3
07/16/2015 Draft/edit MSJ docs 4
07/17/2015 Draft/edit/cite-check/finalize MSJ docs for filing 4.5
08/03/2015 Review Allied's MSJ reply/cases cited therein 2
08/10/2015 Draft reply 3
08/11/2015 Draft reply 4
08/13/2015 Draft/edit reply 2
08/14/2015 Draft/edit/finalize reply for filing 4
TOTAL: 43
47 hours * $81.98/hour: $3,525.14
ALLIED STONE TIME
Date Description Atty Time
10/13/2014 Draft, revise letter to opposing counsel DDP 1
10/28/2014 Various telephone calls regarding complaint; court status DDP 1
11/03/2014 Review/file complaint DDP 0.25
12/01/2014 Review court filings and answer to complaint DDP 0.5
12/01/2014 Review answer to complaint; discuss RAP 0.5
12/17/2014 Revise joint status report DDP 1
12/30/2014 Review counsel revisions and revise joint status report DDP 0.25
01/06/2015 Travel to and attend initial pretrial conference DDP 2.5
01/06/2015 Travel to and attend initial pretrial conference RAP 2.5
01/28/2015 Draft 26(a)(1) Initial Disclosures RAP .75
01/30/2015 Finalize 26(a)(1) Initial Disclosures; prepare for service RAP .75
02/12/2015 Review discovery requests and pleadings RAP 2
02/17/2015 Review and begin to draft Interrogatories and Requests to
Produce RAP 1
02/23/2015 Draft responses to Interrogatories and Requests to Produce RAP 2
02/26/2015 Review discovery responses; discuss, review, and draft RAP 2.75
02/27/2015 Review/revise Requests to Produce, Interrogatories RAP 2
03/03/2015 Revise interrogatory answers DDP 1.5
03/03/2015 Edit discovery responses RAP 2
03/04/2015 Revise interrogatory/document response DDP 2
03/04/2015 Edit/serve discovery responses RAP 1
03/06/2015 Review supplemental discovery responses RAP 0.75
04/02/2015 Revise opposing counsel report of hours paid DDP 0.25
06/15/2015 Review MSJ; telephone call regarding same RAP 1
06/17/2015 Review Company's MSJ; office conference regarding
same DDP 0.75
06/17/2015 Review MSJ; telephone calls regarding same RAP 1.25
06/18/2015 Work on Motion for Extension of Time to Respond to MSJ DDP 0.5
06/19/2015 Prepare/send letter to opposing counsel regarding court
status DDP 0.25
06/19/2015 Research case law for MSJ; review minute entry RAP 1.75
06/26/2015 MSJ legal research; begin drafting response to Statement
of Facts RAP 2.75
06/28/2015 Review CBA, Fund documents (regarding response to
MSJ) RAP 2
06/29/2015 Research/draft response to Statement of Facts RAP 2.5
06/30/2015 Review draft Response to Statement of Facts; research
case law RAP 1.25
07/07/2015 Work on MSJ response DDP 1.5
07/08/2015 Work on statement of uncontested facts, response brief DDP 1.75
07/09/2015 Work on response brief; work on certifications regarding
same; various telephone conversations regarding same DDP 1.25
07/10/2015 Work on response brief DDP 0.5
07/13/2015 Work on response brief DDP 1
07/14/2015 Call re: status of brief; further research case law RAP 1.75
07/15/2015 Draft Cross-MSJ; telephone calls to discuss brief and 56.1;
review brief; legal research RAP 5.25
07/16/2015 Work on response brief and supporting documents DDP 5
07/16/2015 Prepare supporting MSJ documents; work on brief, 56.1;
legal research RAP 6.25
07/17/2015 Review various Allied e-mails DDP 1.25
07/17/2015 Review/edit MSJ RAP 3
07/31/2015 Review Allied's MSJ Reply RAP 0.75
08/13/2015 Work on MSJ reply DDP 1.5
08/14/2015 Work on MSJ reply DDP 5
12/01/2015 Prepare motion for leave to submit Cordova decision in
supplement to MSJ DDP 0.5
12/02/2015 Confer to discuss alternative dates for status RAP 0.25
03/30/2016 Review Decision DDP 0.5
04/01/2016 Review Judge Lee's decision RAP 0.5
04/04/2016 Prepare Motion for Entry of Judgment DDP 0.75
04/05/2016 Revise Motion for Entry of Judgment DDP 0.5
TOTAL: 81
Individual Totals
DDP 32.75 $400.00/hour $13,100.00
RAP 48.25 $300.00/hour $14,475.00
TOTAL: $27,575.00
EXHIBIT B
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
Midwest Operating Engineers Welfare
Trust Fund and Midwest Operating
Engineers Pension Trust Fund,
Plaintiffs,
Case No. 14 C 8752
v.
Allied Stone, a division of RiverStone
Group, Inc., an Illinois corporation,
Defendant.
AGREED PROPOSED JUDGMENT ORDER
This matter coming on to be heard upon Plaintiffs Midwest Operating Engineers Welfare and Pension Funds' ("the Funds") Motion to Enter Judgment, it appearing to the Court that Defendant Allied Stone, a division of RiverStone Group, Inc., an Illinois Corporation ("Allied"), is obligated to contribute to the Funds, and the Court, first being fully advised in the premises and upon further evidence submitted herewith, FINDS:
The Court has jurisdiction of the subject matter herein and of the parties hereto pursuant to 29 U.S.C. §§ 1132 and 1145.
Allied was bound to a collective bargaining agreement with Local 150 of the International Union of Operating Engineers, AFL-CIO, and the Agreements and Declarations of Trust that govern the Funds from May 3, 2010, through May 3, 2015.
Allied is obligated to make contributions to the Funds, pay interest on unpaid contributions, and liquidated damages and costs as follows:
Unpaid contributions for hours worked May 2014 through August 2014: $294,467.27
Interest on unpaid contributions based upon annual interest rate of 8 percent: $31,984.97
Liquidated damages for unpaid contributions: $58,893.45
Costs: $535.00
Attorneys' Fees: $31,100.14
_____________________________________________________________________________________________
Total: $416,980.83
===========
Plaintiff Funds' claims for attorneys' fees shall be considered pursuant to Local Rule 54.3 and 29 U.S.C. § 1132(g)(1).
Under Rule 54(b), F. R. Civ. P., there is no just reason for delay in the entry of a Judgment Order as to the sum of $422,545.45 owed to the Plaintiff Funds from Defendant Allied.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED THAT:
Plaintiff Funds shall recover from Defendant Allied the amount of $294,467.27; Plaintiffs shall recover costs in the amount of $535.00; Plaintiffs recover from Defendant Allied Stone, a division of RiverStone Group, Inc., an Illinois corporation, the total amount of $416,980.83, which includes unpaid benefit contributions, liquidated damages, costs, interest, and attorneys' fees.
Plaintiff Funds are awarded execution for the collection of the Judgment granted hereunder.
The Court hereby retains jurisdiction of this cause and all of the parties hereto for the purpose of enforcing this Order.
ENTER:
__________________________________
UNITED STATES DISTRICT COURT JUDGE
DATED: _____________
