THOMAS M. DURKIN, Magistrate Judge.
NOW COME the Plaintiffs, by and through their attorneys, and, in their Response to Defendant's Motion for Extension of Time & Plaintiffs' Renewed Motion for Default Judgment in Sum Certain, state as follows:
1. This is Plaintiffs' third lawsuit against Defendant. See 14 CV 243 (N.D. Ill., Kendall, J.); 14 CV 8362 (N.D. Ill., Pallmeyer, J.). After signing its Collective Bargaining Agreement with Glaziers Local Union No. 27 in September 2013, Defendant immediately fell delinquent in its fringe benefit contributions to the Plaintiff Funds and never came current.
2. On multiple occasions, Plaintiffs attempted to afford Defendant the opportunity to repay its contributions over time, through various repayment agreements, but Defendant consistently failed to live up to its obligations under those agreements. See Ex. A (personal judgment against Patricia King, Defendant's president, for breach of installment note, in 14 CV 243; corporate and personal judgment, for breach of settlement agreement, in 14 CV 8362).
3. Defendant's present condition is such that two of its Glazier-employees went without their cash wages for a combined six weeks. Local 27 had to claim on Defendant's wage and welfare bond, which might otherwise have gone to address the contribution delinquency, so that these workers could meet their families' living expenses. See Ex. B (M. Cook Decl.)
4. Additionally, Plaintiffs recently discovered Defendant never contributed to the International Union of Painters & Allied Trades' Funds, as also required under the Local 27 CBA. The International Funds are auditing Defendant and will, presumably, shortly file their own lawsuit against Defendant. See Ex. B.
5. Plaintiffs filed their Complaint in this case, seeking an ERISA fringe benefit contributions audit of Defendant, and a judgment for any amounts determined to be due by the audit, on May 27, 2015.
6. Plaintiffs served Defendant with the Complaint on June 5, 2015. At the time of service of the Complaint, defense counsel in this case had already represented Defendant in the Funds' case before Judge Pallmeyer for five months.
7. Prior to defense counsel's appearance in the instant matter, he and Plaintiffs' counsel discussed Defendant's 2015 delinquency status on numerous occasions.
8. Plaintiffs moved for a default judgment against Defendant in this case on August 3, 2015. Defense counsel appeared in person at the motion hearing, on August 11, and received until September 1 to answer.
9. On August 31, 2015, the day before Defendant's answer was due, defense counsel moved to withdraw his appearance "[d]ue to developments in this and other cases in which counsel had previously represented Defendant," and sought a further extension of time for Defendant to answer the Complaint "in accommodation of the added time [Defendant] will require to retain new counsel and familiarize them with the case."
10. Plaintiffs believe the "developments" Defendant references to be the judgment entered in the case before Judge Pallmeyer. Contrary to counsel's representation, however, that is not a case where he "represented" Defendant. Rather, he continues to represent Defendant in that case, presently seeking to amend and/or vacate the judgment entered therein. And, if defense counsel may continue to represent Defendant in that action, there is no apparent reason why he cannot continue to do so in this case.
11. Defendant has up to a roughly $76,000.00 receivable from Gilbane Building Company. (Plaintiffs say "up to" in that unpaid material suppliers' claims would reduce the receivable, and Defendant's last receivable obtained by the Funds was nearly halved by such material suppliers' claims). Plaintiffs served a citation to discover assets on Gilbane pursuant to their judgment from Judge Pallmeyer.
12. If the Funds were able to obtain the Gilbane receivable, and Defendant's final Ujamaa Construction receivables, barring reductions for material suppliers, the Funds would be able to address most of Defendant's base contribution delinquency, though their liquidated damages, audit costs, and attorneys' fees, incurred over two years, would go uncompensated.
13. Defendant, by the filing of its motion to amend and/or vacate before Judge Pallmeyer, and its motion to extend in this case, to prevent a new judgment attaching, seeks to unlock at least a portion of the Gilbane receivable. Thereby, Defendant hopes to divert the monies owed for its own purposes, even as it fails to pay its workers their cash wages and to contribute to the Funds on their behalf, and while knowing that it cannot possibly hope to ever cure its contribution delinquency.
14. Contrary to Defendant's assertion, fairness in this case does not involve affording an extension of time to answer. New counsel can only determine what Defendant and current defense counsel already know: there is no defense to Plaintiffs' claim. Rather, fairness requires the entry of an immediate default judgment in Plaintiffs' favor.
15. According to the Declaration of Richard J. Wolf, his firm's audit of Defendant revealed arrearages totaling $62,127.90. Ex. C. Defendant has never disputed the accuracy of the audit's calculations, nor contested that any amount of the audit's findings are due and owing.
16. According to the Declaration of Andrew S. Pigott, Plaintiffs' incurred $25,920.00 in post-suit attorney fees. Ex. D.
WHEREFORE, Plaintiffs ask this Court to enter the Order attached to this Motion as Exhibit E.
TRUSTEES OF THE GLAZIERS, ARCHITECTURAL METAL AND GLASS WORKERS LOCAL UNION NO. 27 WELFARE AND PENSION FUNDS, Plaintiffs,
v.
COTTAGE GROVE GLASS, INC., an Illinois corporation, Defendant.
No. 14 CV 243
Judge Kendall
Magistrate Judge Keys
THE CAUSE coming before the Court on Plaintiffs' Motion to Reinstate and for Confession of Judgment, due notice given, and the Court fully advised in the premises, IT IS HEREBY ORDERED:
The cause is reinstated.
SO ORDERED.
TRUSTEES OF THE GLAZIERS, ARCHITECTURAL METAL AND GLASS WORKERS LOCAL UNION NO. 27 WELFARE AND PENSION FUNDS, Plaintiffs,
v.
COTTAGE GROVE GLASS, INC., an Illinois corporation, Defendant.
No. 14 CV 8362
Judge Pallmeyer
Magistrate Judge Finnegan
THE CAUSE coming before the Court on Plaintiffs' Motion to Enforce Settlement Agreement & For Judgment in Sum Certain, due notice given, and the Court fully advised in the premises, the Court makes the following findings and HEREBY ORDERS:
1. Roughly five months ago, the Parties reported to the Court that they reached a settlement agreement. The settlement documents demonstrate that the Parties agreed to a total amount due, and the mechanisms of payment from Defendant to Plaintiffs: Defendant would authorize its general contractor Ujamaa Construction to directly pay Plaintiffs amounts due under its subcontracts, up to $80,000.00, and would directly pay an additional $18,7002.16 ($20,300.35 with interest) on a promissory installment note basis. Patricia King, Defendant's president personally guaranteed the note payments.
2. Since the Parties first informed the Court of their settlement, they have returned for post-settlement status hearings, each time informing the Court that the required payments called for under the three-party agreement with the general contractor were imminent. Apparently, however, due to Defendant's workmanship issues, Plaintiffs received no settlement payments after an initial $36,914.03 from Ujamaa, and $18,341.08 from Defendant. Defendant has received ample opportunity to take the actions required to ensure payment of the $80,000.00 to Defendant.
3. Defendant and King have, further, defaulted on the installment note by missing their June and July installments, as well as failing to make their regular contributions for February and March 2015.
4. Plaintiffs have incurred $49,395.00 in attorneys' fees attempting to collect the amounts due for the period of the audit, which formed the basis of Plaintiffs' Complaint.
WHEREFORE, judgment is hereby entered against Defendant in the amount of $94,440.24, and against King, individually, in the amount of $20,300.35.
SO ORDERED.
TRUSTEES OF THE GLAZIERS, ARCHITECTURAL METAL AND GLASS WORKERS LOCAL UNION NO. 27 WELFARE AND PENSION FUNDS, Plaintiffs,
v.
COTTAGE GROVE GLASS, INC., an Illinois corporation, Defendant.
No. 15-cv-4636
Judge: Thomas M. Durkin
Magistrate Judge: Gilbert
Mike Cook, subject to the laws of perjury and pursuant to 28 U.S.C. §1746, states as follows:
1. I am Mike Cook, a business agent of Glaziers Local No. 27, as well as a trustee of the Glaziers Local Union No. 27 Funds.
2. In my capacity as a business agent, I police signatory contractors to ensure that they are complying with the terms of their Collective Bargaining Agreement with Local 27.
3. As a Funds trustee my duties include ensuring that participating employers contribute to the Funds according to the Local 27 CBA and the Funds' Trust Agreements.
4. In August 2015, two members of Local 27 employed by Cottage Grove Glass, Ken Huffman and Jose Calderon, approached me and informed me of Cottage Grove Glass' violation of the CBA by failing to pay their wages for approximately six weeks of work, combined.
5. Under the Local 27 CBA, the employer must obtain a wage and welfare bond prior to performing any covered work. Cottage Grove obtained a $15,000.00 bond.
6. Local 27 claimed on Cottage Grove Glass' bond and obtained the proceeds to cover Mr. Huffinan's and Mr. Calderon's unpaid wages. The bond proceeds application to these outstanding wages precludes them from being used to reduce Cottage Grove Glass' contribution deficiency.
7. Under the Local 27 CBA, signatory contractors must contribute to two sets of benefit funds, Local 27's Funds, plus funds affiliated with our international union, the International Union of Painters & Allied Trades ("IUPAT").
8. I conferred with the funds administrator for the IUPAT funds about Cottage Grove Glass and found out that Cottage Grove Glass never contributed to the IUPAT funds, making it roughly two years delinquent to them at this point. As a result of Cottage Grove Glass' delinquency, the IUPAT funds are currently auditing the company.
I declare under penalty of perjury that the foregoing is true and correct.
Exectued on:
Date
___________________
Mike Cook
TRUSTEES OF THE GLAZIERS, ARCHITECTURAL METAL AND GLASS WORKERS LOCAL UNION NO. 27 WELFARE AND PENSION FUNDS, Plaintiffs,
v.
COTTAGE GROVE GLASS, INC., an Illinois corporation, Defendant,
No. 15-cv-4636
Judge: Thomas.M. Durkin
Magistrate Judge: Gilbert
Richard J. Wolf, subject to the laws of perjury and pursuant to 28 U.S.C. §1746, states as follows:
1. I am Richard 1 Wolf, owner of Richard S. Wolf & Co., the Plaintiff Rinds' auditor.
2. In July 2015, my firm audited the books and records of Cottage Grove Glass to determine if it had complied with its contribution obligations under the Glaziers Local. Union No. 27 Collective Bargaining Agreement and the Funds' Trust Agreements.
3. My firm's auditing of Cottage Dove Glass revealed arrearages, as reflected in our audit report, which is attached to this Declaration, as follows:
I declare under penalty of perjury that the foregoing is true and correct.
Executed on:
___________
Richard J. Wolf
July 13, 2015
Board of Trustees of the Various Fringe Benefit Funds of the Glaziers Local #27
RE: Cottage Grove Glass Company (640)
We have performed a fringe benefit contribution compliance audit of Cottage Grove Glass Company, for the period from January 1, 2015 through June 30, 2015. The audit encompassed the comparison of individual earnings records to certain payroll tax and fund reports and a review of the general disbursements records.
The comparison and review indicate that the employer has not complied with its fringe benefit contribution requirements and owes the following amounts:
In addition, the employer could not provide proof of a current wage and fringe benefit bond.
__________________
TRUSTEES OF THE GLAZIERS, ARCHITECTURAL METAL AND GLASS WORKERS LOCAL UNION NO. 27 WELFARE AND PENSION FUNDS, Plaintiffs,
v.
COTTAGE GROVE GLASS, INC., an Illinois corporation, Defendant.
No. 15-cv-4636
Judge: Thomas M. Durkin
Magistrate Judge: Gilbert
Andrew S. Pigott, subject to the laws of perjury and pursuant to 28 U.S.C. §1746, states as follows:
1. I am an associate at Arnold & Kadjan, and one of Plaintiffs' attorneys.
2. Arnold & Kadjan's hourly rate for Plaintiffs is $300.00. This rate is reasonable as demonstrated by Plaintiffs regular payment of our fees based on this rate..
3. All told, myself and my colleagues spent 86.40 hours in collection activity after filing the Complaint. See Pigott Decl. 1 (time entries).
4. Defendant signed a Glaziers Local 27 Collective Bargaining Agreement on September 11, 2013, and immediately fell delinquent in its contribution obligations to the Funds. The Funds promptly retained counsel, and counsel has remained in constant collection activity for the Funds ever since, as Defendant has never come current in its obligations.
5. The necessary, aforementioned collection activity has included:
6. Plaintiffs presently claim their attorney fees for collection activity following the filing of the instant Complaint. As Defendant remains delinquent for periods preceding the filing of this Complaint, some of the attorney fees incurred are directed toward collection of pre-suit delinquencies. However, Plaintiffs have avoided double-claiming by limiting their claim for attorney fees in the Pallmeyer suit to periods preceding the filing of the Complaint here. Otherwise, there is no neat means of dividing fees between contribution months, audits, or cases.
7. Arnold & Kadjan's total billing in this matter is $25,920.00.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on: _______
______________
Andrew S. Pigott
TRUSTEES OF THE GLAZIERS, ARCHITECTURAL METAL AND GLASS WORKERS LOCAL UNION NO. 27 WELFARE AND PENSION FUNDS, Plaintiffs,
v.
COTTAGE GROVE GLASS, INC., an Illinois corporation, Defendant.
No. 15-cv-4636
Judge: Thomas M. Durkin
Magistrate Judge: Gilbert
THE CAUSE coming before the Court on Plaintiffs' Motion for Default Judgment in Sum Certain, due notice given, and the Court fully advised in the premises, the Court makes the following findings and HEREBY ORDERS:
1. On May 27, 2015, Plaintiffs filed their Complaint, seeking an ERISA fringe benefit contributions audit of Defendant, and a judgment for any amounts determined to be due by the audit.
2. Plaintiffs served Defendant with the Complaint on June 5, 2015, but Defendant failed to answer or otherwise plead to the Complaint in the time afforded by rule, or within the initial extension afforded by the Court.
3. Defense counsel seeks to withdraw and for Defendant to receive a second extension of time in which to answer. However, the court perceives no just cause for any further extension. There does not appear to be any dispute over the contributions, liquidated damages, and audit costs owed to Plaintiffs by Defendant. Therefore, Defendant's motion for an extension of time in which to answer or otherwise plead is DENIED.
4. Defendant is in default.
5. Declarations tendered by Plaintiffs' counsel and auditor reflect contribution arrearages, liquidated damages, audit costs, and attorney fees due in the amount of $88,047.90.
6. Plaintiffs' motion for default judgment is GRANTED.
WHEREFORE, the Court enters judgment in favor of Plaintiffs and against Defendant in the amount of $88,047.90 for the period of the audit from January 1, 2015 through June 30, 2015.
SO ORDERED.
