PLAINTIFFS' MOTION FOR PROVE UP OF DAMAGES

ROBERT M. DOW, Jr., District Judge.

Plaintiffs, the Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity and James S. Jorgensen (collectively the "Funds"), pursuant to Rule 55 of the Federal Rules of Civil Procedure, by their attorneys, move for Judgment of Damages in Sum Certain against Defendants Chicago Asphalt Patching, Inc. (the "Company") and Mark Hoffmann ("Hoffmann"). In support of this Motion, Plaintiffs, by their attorneys state:

1. On July 3, 2014, Plaintiffs filed a complaint under Sections 502(e)(1) and (2) of the Employee Retirement Income Security Act, as amended, 29 U.S.C. § 1132(e)(1) and (2); Section 301(a) of the Labor Management Relations Act, as amended, 29 U.S.C. § 185(a); and 28 U.S.C. § 1331 alleging that at all material times the Defendants have an obligation, arising from a collective bargaining agreement to make contributions to Plaintiffs' Funds, to submit to an audit upon demand and to obtain and maintain a surety bond (See, Dk #1, the Complaint with its attached Exhibit A, the CBA). In the Complaint, Plaintiffs specifically alleged that Defendants had failed to report and pay all contributions covering the period from June 16, 2011 through March 31, 2012, pursuant to a Settlement Agreement (Dk. #1 attached Exh. B) and Installment Note (Dk. #1 attached Exh. C), and that Hoffmann was being sued in his individual capacity because as the Company's president he had signed a personal guaranty to pay the contributions for that period to the Funds, as shown in an audit, and to timely report and pay ongoing monthly contributions owed to the Funds from April 1, 2012 through the present (Dk. #1 attached Exh. D, Personal Guaranty).

2. Plaintiffs also specifically alleged that the Company was an Illinois corporation that was no longer in good standing, according to the Secretary of State.

3. Plaintiffs requested relief included producing books and records for an audit, covering the period from April 1, 2012 through May 31, 2014.

4. As established by the Laborers' Field Representative, John Bronson, the independent auditing firm of Calibre CPA Group, PLLC was selected to perform the review of the Company's books and records for the audit period (See attached, Exhibit B, Bronson Affidavit at ¶ 5).

5. The audit report, dated August 1, 2014, reflected a total of $117,827.39 in principal contributions and Union dues owed for the audit period (See attached Exhibit A, the Audit). Hoffmann presented objections to these audited findings. Plaintiffs reviewed the supporting evidence, and revised the audit accordingly, reflecting $66,273.94 remained owed for principal contributions and Union dues (See attached Exhibit C, p.1 Revised Audit Summary Report).

6. On September 30, 2014, the undersigned filed executed waivers of service from the Company and Hoffmann (See, Dk. #8 and #9).

7. Defendants submitted their October 2014 work hour report and Union dues report, but failed to pay either of these reports. Thus, according to Defendants' own reports for October 2014, the amount of $4,870.14 is also owed for principal contributions and Union dues (See attached Exhibit C, p.2, Summary Report of October 2014).

8. On December 2, 2014, the Court entered a default against the Company and Hoffmann for their failure to appear, answer or otherwise plead to the complaint (Dk. #11).

9. According to the Collective Bargaining Agreement and the Trust Agreements to which the Defendants are bound, payment is also owed for liquidated damages in the amount of twenty (20) percent of the unpaid or late contributions to the Welfare, Pension, and Training funds, and ten (10) percent of the principal amount of delinquent contributions to the LDCLMCC, ISPA and LECET funds, and for Union dues. As such, liquidated damages are owed in the amount of $12,693.48 to the Welfare, Pension and Training funds, for the audit period and in the amount of $917.44 for the October 2014 report. Liquidated damages are owed to LDCLMCC, ISPA and LECET funds and for the Union dues fund in the amount of $280.66 for the audit period and $28.30 for the October 2014 reports. Additionally, accumulated penalty in the amount of $195.60 is owed for prior untimely payment(s), plus interest is calculated at twelve (12) percent and is owed for all delinquencies excluding union dues. To date, accumulated interest is owed in the amount of $10,215.95 for the audit period and $323.21 is owed for as yet unpaid October 2014 reports. (See Exhibit B, Bronson Affidavit at ¶ 8-¶ 10; Exhibit C, Summary Reports).

10. Defendants are also obligated to pay $1006.25 for the audit cost based on the respective Trust Agreements to which they are bound. (See Exhibit A, Audit Report; Exhibit B, Bronson Affidavit at ¶ 6; Exhibit C, p.1, Summary Report).

11. Additionally, Plaintiffs are entitled to attorneys' fees and costs under ERISA, 29 U.S.C. § 1132(g)(2)(B). The undersigned's attached affidavit establishes the amount of attorneys' fees incurred in this matter are $7,590.00 and $470.00 in costs, which consists of service and filing fees. (See Exhibit D, Schumann Affidavit, and Exhibit D1, Attorney fee report).

WHEREFORE, Plaintiffs request that the Court enter a judgment order for damages in the total amount of $104,864.97 to be entered against Defendants, Mark Hoffmann and Chicago Asphalt Patching, Inc., and in the favor of the Funds. Further, Plaintiffs request the Court order Defendants to comply with its obligations to report hours of covered employees on a monthly basis and pay current contributions as they become due as required under the collective bargaining agreements and, within 90 days of the date of the order, provide written proof that it has obtained a surety bond to Plaintiffs' counsel, Sara S. Schumann, Esq., Allison, Slutsky & Kennedy, P.C., 230 W. Monroe Street, Suite 2600, Chicago, IL 60606.

Exhibit A

Re: Chicago Asphalt Patching

Case # CHLAB-0514-03477

Acct # 35196

Gentlemen:

In accordance with your instructions we have performed certain agreed-upon procedures to the payroll records presented for our inspection by the above-mentioned employer. The purpose of the inspection was to determine the accuracy of the employer's monthly contributions to the Laborers' Pension Fund and Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity for the period April 1, 2012 through May 31, 2014. This agreed-upon procedure engagement was performed in accordance with the attestation standards established by the American Institute of Certified Public Accountants. The sufficiency of these procedures is solely the responsibility of the Laborers' Pension Fund and Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity. The accuracy of the payroll records and reporting to the Funds is the responsibility of the management of Chicago Asphalt Patching. We have applied the prescribed procedures to those records and reports.

Attached hereto are yearly schedules showing the detail of the under-reported hours and wages and the computation of the amounts due to the Funds. The findings consist of under-reported hours and wages of previously reported individuals performing covered work.

Our procedures indicated that the employer owes the following amounts for the period reviewed, exclusive of interest.

We were not engaged to, and did not perform an examination, the objective of which would be the expression of an opinion on the accompanying report. Accordingly, we do not express such an opinion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you.

We shall be pleased to furnish any additional information desired.

Please note due to our recent merger we are now managing our accounts receivable through our main office in Bethesda, Maryland.

Please also reference the invoice number(s) so your payment can be applied appropriately.

Exhibit B

AFFIDAVIT OF JOHN BRONSON

John Bronson being first duly sworn on oath, deposes and states as follows:

1. I am a Representative of the Field Department, employed by the Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Funds"), the Plaintiffs in the above referenced action. My responsibilities include oversight of the collection of amounts owed by Chicago Asphalt Patching, Inc. (the "Company") and Mark Hoffmann, the Company's President and Guarantor. This affidavit is submitted in support of the Funds' Motion for Prove-up Damages.

2. The Company has been a signatory employer since June 16, 2011 as reflected by the Funds' records and as shown in the Collective Bargaining Agreement that was attached to the Complaint, and is a true and correct copy of the agreement between the Company and the Construction and General Laborers' District Council of Chicago and Vicinity and its affiliated local ("Union"), on file with the Funds.

3. On July 3, 2014, the above captioned lawsuit was filed after the Company had materially breached its settlement agreement from a prior lawsuit, by defaulting on its installment note with the Funds and by failing to submit its ongoing monthly reports to the Funds. Copies of the Settlement Agreement, Installment Note and Mark Hoffmann's Personal Guaranty were attached to the Complaint as Exhibits B, C and D.

4. After the Funds filed the Complaint, the Company failed to answer and has continued to fail to remit its monthly reports and payments as required by the Collective Bargaining Agreement.

5. After filing the Complaint, the Funds selected the independent auditing firm of Calibre CPA Group, PLLC ("Calibre") to perform a review of the Company's books and records for the audit period covering the period from April 1, 2012 through May 31, 2014. Calibre completed this review and the audit report, dated August 1, 2014, reflected $117,827.39 in principal contributions and Union dues were owed for the audit period. However, Mark Hoffmann, presented challenges with supporting evidence as to the audited findings, which I then reviewed and accepted. I then revised the audited findings accordingly in a summary report that is attached to Plaintiffs' Motion for Prove-up Damages as page one of Exhibit C, reflecting that $66,273.94 in principal contributions and Union dues remained owed for the audit period.

6. The respective Agreements and Declarations of Trust of the Laborers' Funds, to which the Company is bound, require it to pay the $1,006.25 cost for the audit. The audit report with Calibre's invoice is also attached to the Plaintiffs' Motion for Prove-up Damages as Exhibit A.

7. Additionally, the Defendants' also submitted their October 2014 reports, but failed to submit payment, so these reports outside of the audit period remain unpaid to date and reflect that $4,870.14 are owed for principal contributions and Union dues per Defendants' unpaid reports. I also detailed these amounts in a second Summary Report that is attached to Plaintiffs' Motion for Prove-up Damages as page 2 of Exhibit C.

8. The respective Agreements and Declarations of Trust of the Laborers Funds, to which the Company is bound, require payment of liquidated damages in the amount of 20 percent of the principal amount of delinquent contributions to the Welfare, Pension, and Training funds. The same agreements establish that liquidated damages are due in the amount of 10 percent of the principal amount of delinquent contributions to the LDCLMCC, ISPA and LECET funds, and for Union dues. Accumulated penalties are also assessed at the 10 percent rate for prior untimely payments, and interest is calculated at 12 percent and is owed for all delinquencies excluding union dues. The Summary Reports, which I prepared detail these amounts owed pursuant to the revised audit and as to Defendants' unpaid October 2014 reports.

9. The Revised Audit amounts reflect liquidated damages due for the delinquent contributions in the amount of $12,693.48 for the Welfare, Pension, and Training funds and $280.66 for the LDCLMCC, ISPA and LECET funds, and for Union dues. The Revised Audit further reflects $195.60 in accumulated penalties and $10,215.95 in interest owed to date.

10. Defendants' 2014 October reports reflect that liquidated damages are owed in the amounts of $917.44 for Welfare, Pension and Training funds and $28.30 for the LDCLMCC, ISPA, and LECET funds and for the Union dues, and $323.21 has accrued in accumulated interest.

11. As required by Article IX, paragraph 1 of the Collective Bargaining Agreement, all employers are required to procure, carry and maintain a surety bond in an amount that is satisfactory to the Union. This surety bond must be in excess of $5,000.00 to guarantee the payment of wages, Pension and Welfare Trust Contributions during the term of the Agreement. The Company was unable to show proof of maintaining a surety bond as required by the contract to the auditors.

John Bronson Field Department Representative Subscribed and sworn to before me this 18th of June, 2015. NOTARY PUBLIC

EXHIBIT C

LABORERS' PENSION & WELFARE FUNDS

LABORERS' PENSION & WELFARE FUNDS SUMMARY OF AMOUNT OWED

EXHIBIT D

AFFIDAVIT OF SARA STEWART SCHUMANN

Sara Stewart Schumann, being first duly sworn on oath, deposes and states as follows:

1. I am an associate attorney at the law firm of Allison, Slutsky & Kennedy, P.C., counsel for plaintiffs Laborers' Pension Fund and Laborers' Welfare Fund ofthe Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Funds") in the action against Chicago Asphalt Patching, Inc. (the "Company") and Mark Hoffmann. This affidavit is submitted to document attorneys' fees and costs incurred by the Laborers' Funds for the period from June 1, 2014 through June 15, 2015, for work performed in connection with obtaining contributions owed.

2. Since June 1, 2014, this firm has billed the Laborers' Funds on an hourly basis for collections services rendered to the Funds, at a rate of $225.00 per hour for shareholders, $195.00 per hour for associates, and $110.00 per hour for clerks/paralegals. In this cause records kept for legal work on this matter were kept contemporaneously and are attached hereto as Exhibit D1.

3. Exhibit D1 hereto sets forth the time expended from June 1, 2014 through June 15, 2015, by the firm's attorneys and paralegals in this matter. The billable entries were reviewed, and any duplicative entries were struck. As set forth in Exhibit D1, the Laborers' Funds have incurred legal fees to my firm in this matter in the amount of $7,590.00.

4. In addition, the Laborers' Funds have incurred court costs in the prosecution of this matter totaling $470.00, which consists of filing fees, and fees for service of process.

Sara Stewart Schumann, Associate ALLISON, SLUTSKY & KENNEDY, P.C. Subscribed and sworn to before me this 18th day June 2015 NOTARY PUBLIC "OFFICIAL SEAL" Paula D. Edwards NOTARY PUBLIC, STATE OF ILLINOiS My Commission Expires 05/18/2017

Exhibit D1

Selection Criteria

Rate Info — identifies rate source and level

JUDGMENT ORDER

This cause coming before the Court on the Plaintiffs' Motion for Damages, with due notice having been given to the Defendants, and the Court having found the Defendants in default.

IT IS HEREBY ORDERED:

Judgment is entered on behalf of the Laborers' Pension and Welfare Funds and against Defendants Mark Hoffmann and Chicago Asphalt Patching, for the audited period of April 1, 2012 through May 31, 2014 and as to an as yet unaudited period from June 1, 2014 through May 31, 2015 for the total amount of $104,864.97, consisting of the following amounts:

The Company is hereby ordered to submit contributions together with remittance reporting information to the Funds the month after the work has been performed, and the Company must show proof to Funds' counsel, Sara S. Schumann, that it has obtained a surety bond in the amount of $5,000.00 within ninety days from the date of entry of this order.