PLAINTIFFS' MOTION TO REINSTATE CASE, ENFORCE SETTLEMENT AGREEMENT AND FOR ENTRY OF A JUDGMENT ORDER

SIDNEY SCHENKIER, Magistrate Judge.

Plaintiffs Ramiro Botello and Ramon Garcia, through their counsel, move this Court to reopen this lawsuit for the purposes of enforcing the Settlement Agreement in this case and for an order requiring that the balance of any unpaid settlement proceeds be accelerated in full and reduced to a judgment. In support of this motion, Plaintiffs state as follows:

1. Plaintiff's claims arose under the Fair Labor Standards Act, 29 U.S.C. §201, et seq. ("FLSA"), and the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. ("IMWL"), for Defendants' failure to pay overtime wages to Plaintiffs and other similarly situated persons.

2. On February 18, 2014, Plaintiffs and Defendants (the "Parties") participated in a settlement conference with the Court and a settlement was reached. A copy of the fully executed settlement agreement is attached hereto as Exhibit 1. With respect to payment of the settlement proceeds, Section 1.A of the agreement provides that:

In consideration for the promises in this Agreement, Employer shall pay Employees the total sum of Thirty Thousand Dollars ($30,000.00) as set forth in the schedule attached hereto as Exhibit A. The payments shall be apportioned and paid as follows:

See Exhibit 1.

3. The Settlement Agreement provided payment of the settlement money in fourteen installments. Defendants' seventh monthly installment was due on September 15, 2014 in the gross amount of $2,000.00. See Exhibit A to the Settlement Agreement, attached hereto as Exhibit 1. That payment has not been made.

4. On September 24, 2014 Plaintiffs sent a notice of default to Joseph V. Vito in accordance with the provisions of Section 9 of the Settlement Agreement. See Exhibit 2, Correspondence dated September 24, 2014. As of the date of this motion, Defendants have failed to cure the default.

5. Section 9 of the Settlement Agreement provides that in the event of a default, Employees may sue for the balance of the Settlement Payment, with the balance of any unpaid settlement proceeds being accelerated in full and reduced to a judgment in favor of Employees and against Employer. See Exhibit 1.

6. As a result of Defendants' default, Plaintiffs are entitled to an acceleration of the unpaid balance of the settlement payment in the amount of $15,000.00, and an entry of judgment against Defendants, jointly and severally.

7. Plaintiffs respectfully request that the Court enter an Order enforcing the terms of the parties' Settlement Agreement, accelerating the unpaid balance of the settlement payments, and entering a judgment in favor of Plaintiffs, and against all Defendants, jointly and severally, in the amount of $15,000.

WHEREFORE, Plaintiffs request that the Court enter the proposed Order, which has been simultaneously submitted to the proposed orders email box, (i) granting Plaintiffs' Motion, (ii) directing Defendants to pay Plaintiffs the unpaid balance of the settlement proceeds owed to them, now accelerated, under the settlement agreement's terms, (iii) and entering a judgment in favor of Plaintiffs, and against all Defendants, jointly and severally, in the amount of $15,000.

EXHIBIT 1

SETTLEMENT AGREEMENT AND COMPLETE WAIVER/RELEASE

This Settlement Agreement and Complete Waiver/Release ("Agreement") is entered into between Ramiro Botello and Ramon Garcia, on behalf of themselves, their agents, representatives, assignees, heirs, executors, beneficiaries, trustees (collectively referred to as "Employees") and Creative Foods, LLC d/b/a Scapa Italian Kitchen, on behalf of itself and its parents, subsidiaries, affiliates, partners, related entities, predecessors, successors, assigns, trustees, and all of its past and present officers, directors, Employees and agents, and Anthony Swigon, in his individual capacity (collectively "Employer").

WHEREAS, Employees filed a lawsuit against Employer in the Northern District of Illinois, Case No. 13 CV 4568, seeking unpaid compensation under the Fair Labor Standards Act, 29 U.S.C. §201 et seq., and the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq., (hereafter the "Lawsuit").

WHEREAS, Employees and Employer (the "Parties") want to avoid further controversy, litigation, costs, legal fees and inconvenience and enter into this Settlement Agreement to resolve all claims, including attorneys' fees, against Employer that may have been asserted in the Lawsuit;

NOW, THEREFORE, for and in consideration of the provisions, covenants and mutual promises contained herein, the Parties hereby agree as follows:

1. Consideration

A. In consideration for the promises in this Agreement, Employer shall pay Employees the total sum of Thirty Thousand Dollars ($30,000.00) as set forth in the schedule attached hereto as Exhibit A. The payments shall be apportioned and paid as follows:

B. For each payment to Employees, Employer shall issue two individual checks to each Employee. One check, representing alleged Unpaid Wages and a second check, representing alleged Liquidated Damages. The amounts of each check to be issued to Employees are listed on Exhibit A. Employer shall make appropriate payroll withholdings from the portion of damages representing alleged Unpaid Wages, and shall issue each Employee an IRS form W-2 for the amount contained in these checks. Employer shall make no withholdings from the portion of damages representing alleged Liquidated Damages, and shall issue each Employee an IRS form 1099 for the amount contained in these checks.

C. The amount paid to Werman Salas P.C. (EN #20-3042887), is for Employees' attorneys' fees and costs. An IRS form 1099 will be issued to Werman Salas P.C. by Employer for the attorneys' fees paid as shown in the allocations set forth in Exhibit A, attached hereto.

D. Employer shall deliver the payments set forth in Exhibit A to Werman Salas P.C., c/o Douglas Werman, 77 West Washington Street, Suite 1402, Chicago, Illinois 60602.

E. Employees and Employer agree that the gross sum constitutes good, valid and sufficient consideration for this Agreement and Employees agree that, upon receipt of their payment, they have been properly paid for all hours worked, including minimum wages and overtime compensation, for all hours worked in excess of 40 per week, any liquidated damages stemming from any overtime claims as well as any other penalties or interest pursuant to federal or Illinois wage and hour laws. Employees acknowledge and agree that the consideration described above is consideration to which they would not otherwise be entitled and is being paid in exchange for signing and not revoking this Agreement.

2. Stipulation of Dismissal

Employees and Employer shall execute and file a stipulation of dismissal without prejudice of the lawsuit within fourteen (14) days of Employer executing this Agreement. The Stipulation of Dismissal shall automatically convert to a dismissal with prejudice on May 1, 2015, or fourteen days after Employer makes its final payment in accordance with the Payment Schedule listed in Exhibit A, whichever is later.

3. Waiver Of Costs And Attorneys' Fees

In consideration of the promises made by Employer and Employees in this Agreement, Employer and Employees agree to waive any claim they may have to an award of costs and attorneys fees, other than as set forth in this Agreement.

4. Release and Covenant Not to Sue

In further consideration of the promises made by Employer and Employees in this Agreement, Employer and Employees release and forever discharge the other, as broadly defined in the preamble to this Agreement, from:

Employees and Employer intend that this Agreement bar each and every claim, demand, and cause of action described in this section. Excepted from this release is any claim or right which cannot be waived by law, including claims arising after the date this Agreement is executed and including any claims Employees may have under the Illinois Workers' Compensation Act, 820 TLCS 305, et seq. In consideration of the promises made by the parties in this Agreement, Employees and Employer further agree never to institute any lawsuit, complaint, proceeding, grievance or action of any kind at law, in equity, or otherwise in any court of the United States, state, or municipality against each other arising from or relating to Employees' employment with Employer, treatment at, wages from, or separation of employment from Employer and/or any other occurrence prior to the date this Agreement is executed.

In further consideration of the consideration provided to Employees in this Agreement, Employees agree that each is knowingly and voluntarily waiving all claims he may have against the Releasees, or any of them, including but not limited to claims under the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, and all claims of discrimination, harassment or retaliation in employment or in violation of any applicable law from the beginning of time to the date that he signs this Agreement.

5. Non-Admission

This Agreement is being entered into solely for the purpose of resolving all issues, and shall not be construed as: (a) an admission by employer of any (i) liability or wrongdoing to employees, (ii) breach of any agreement, or (iii) violation of a statute, law or regulation; or (b) a waiver of any defenses as to those matters within the scope of this settlement agreement and general release. The employer specifically denies any liability or wrongdoing, and employees agree that he will not state, suggest or imply the contrary to anyone, either directly or indirectly, whether through counsel or otherwise. Employees and Employer further agree that this Agreement shall not be admissible in any proceeding (without the written consent of the parties or unless ordered by a court of competent jurisdiction), except (i) one instituted by either party alleging a breach of this Agreement; or (ii) one brought by Employees or Employer in violation of the release and covenant not to sue contained in Section 4.

6. Confidentiality

Except as otherwise required by law, employees agree that neither they nor their spouses and their attorneys will disclose the terms of this settlement agreement and general release to anyone except employees' spouse, attorneys and tax advisors, and that such persons shall be told that the information must be kept confidential. Employees represent further that in negotiating the terms of this potential agreement, they have not already disclosed the proposed terms to any third-parties. If anyone asks about the status of employees' employment, employees must only respond that "the matter has been resolved."

7. Entire Agreement

Employees and Employer agree that this Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Employees and Employer further agree that this Agreement sets forth the entire agreement between the parties and supersedes any written or oral understanding, promise, or agreement directly or indirectly related to, which is not referred to and incorporated in this Agreement. No other promises or agreements shall be binding unless made in writing and signed by Employees and Employer.

8. Full Knowledge, Consent, And Voluntary Signing

Employees also agree that they are entering into this agreement knowingly, voluntarily, and with full knowledge of its significance; they have not been coerced, threatened, or intimidated into signing this agreement; and they have been advised to consult with an attorney, and in fact have consulted with an attorney.

9. Enforcement

Employees and Employer have specifically negotiated payment of the Settlement Payments over a period of time. In the event that there is any default of the obligation to make the Settlement Payments, as defined in this agreement, Employees may file a motion hi the United States District Court or any other court of competent jurisdiction for the enforcement of this Settlement Agreement and for the balance of the Settlement Payments, with the balance of any unpaid settlement proceeds being accelerated in full, and reduced to a judgment in favor of Employees and against Employer.

Prior to filing such lawsuit, Employees must first afford a reasonable opportunity to cure the default through the following procedures: if Employees believe a default has occurred through non-payment of any individual installment payment of the Settlement Payment, Employees must give notice via electronic mail to Joe Vito, at jvito.1979@gmail.com. Employer shall have seven (7) days from the date of the receipt of such notice of default to cure by making payment in accordance with the terms of this Settlement Agreement.

10. Severability,

To the extent that a court of competent jurisdiction holds that any portion of this Agreement is invalid or legally unenforceable and can be excised without undermining the overall intention of this Agreement on its terms, Employees and Employer agree that the remaining portions shall not be affected and shall be given full force and effect.

11. Illinois Law

This Settlement Agreement and Complete Waiver/Release shall be governed and construed in accordance with the laws of the State of Illinois.

12. Counterparts

This Agreement may be executed in counterparts. Faxed and e-mail:cd copies shall be treated as originals.

EXHIBIT 2