JORGE L. ALONSO, District Judge.
Now COMES the Plaintiff/Petitioner LAURA MITCHELL ("Laura") through her attorneys Markoff Law LLC, and pursuant to Ill. R. Civ. P. 69(a)(1), 735 ILCS 5/2-1402, and Ill. S. Ct. R. 277(h) moves this court to enter judgment against THE NFL PLAYER ANNUITY PROGRAM ("Annuity Program") and THE NFL PLAYER DISABILITY & NEUROCOGNITIVE BENEFIT PLAN ("Benefit Plan")(the Annuity Program and Benefit Plan are referred to collectively as the "NFL ERISA Plans" or the "Plans"), and states as follows in support thereof:
1. Laura is an individual domiciled in Illinois.
2. Qasim is an individual, who upon information and belief, is domiciled in the state of Washington.
3. The National Football League ("NFL") "is an unincorporated association that now includes 32 separately owned professional football teams." Am. Needle, Inc v. NFL, 560 U.S. 183, 187 (2010).
4. The Annuity Program is allegedly an "employee benefits plan governed by [ERISA], 28 U.S.C. § 1001 et seq." (Notice of Removal, 1 at ¶ 2, ECF No. 1).
5. The Benefit Plan is allegedly an "employee benefits plan governed by [ERISA], 28 U.S.C. § 1001 et seq." (Notice of Removal, 1 at ¶ 2, ECF No. 1).
6. The NFL ERISA Plans are domiciled in Baltimore, Maryland. (Junk Decl. 2 ¶¶ 12-14, ECF No. 1, Ex. 10).
7. The NFL ERISA Plans are "distinct legal entities from the NFL." (Notice of Removal 1 ¶ 2, ECF No. 1)
8. The Benefits Office is located in Baltimore, Maryland and provides the day-to-day administration for the Plans. (Notice of Removal 2 ¶ 4, ECF No. 1)
9. On March 28, 2011, a court in the domestic relations division for the Circuit Court of Cook County, Illinois entered a judgment for dissolution of the marriage between Laura and Qasim ("Judgment for Dissolution"). (Ex. A, Judgment for Dissolution of Marriage).
10. The Judgment for Dissolution acknowledged Qasim's prior employment as an NFL football player (Ex. A, p. 2 ¶ 5), and awarded Laura (inter alia) "an unknown amount of money [Qasim was scheduled to receive between 2011 and 2012] from the NFL" (Ex. A 5 ¶ Q), one-half of Qasim's future "payment from the NFL's pension fund as a veteran player" (Ex. A 5 ¶ R), and one-half of Qasim's 401(k) (Ex. A 5 ¶ R(1)).
11. On May 1, 2015, the State Court entered a $306,220.04 money judgment against Qasim based on his failure to make child-support payments as ordered in the Judgment for Dissolution ("Money Judgment").
12. On May 2, 2015, Laura commenced supplementary proceedings under 735 ILCS 5/2-1402 in the Circuit Court of Cook County, Illinois ("State Court") by issuing citations to discover assets naming the NFL and the NFL Players Association ("NFLPA") as respondents (collectively "Citations").
13. Both Citations were directed by U.S. certified mail to: "Meyli Markward, NFL Player Benefits, 200 Saint Paul St., Suite 2420, Baltimore, MD 21202." (Ex. B, Citations and Receipt of Certified Mailing).
14. Meyli Markward is an employee of the Benefits Office. (Junk Decl. 4 ¶ 28, ECF No. 1, Ex. 10).
15. The Benefits Office received the citations on or about May 18, 2015. (Junk Decl. Ex. 5, ECF No. 1, Ex 10)(see "received May 18, 2015" stamp on Citations).
16. On May 27, 2015, the Benefit Plan dispersed $50,000 to Qasim. (Ex. C ¶ 4, August 18, 2015 Letter from Groom Law Office).
17. On June 2, 2015, the NFL and NFLPA issued a letter to the Illinois Department of Healthcare and Family Services acknowledging receipt of the Citations, requesting a qualified order, and stating that it would remove the restriction on Qasim's Player Annuity Program account if such an order was not received. (Ex. D, June 2, 2015 Correspondence).
18. On June 4, 2014, Laura's prior counsel faxed a letter to Ms. Markward specifically informing her of a citation respondents' obligations under Illinois law, directing her not to "releas[e] any funds in any accounts held by or for the benefit of Qasim," and advising her that a letter issued by the Benefits Office on June 2 was an insufficient response to the Citations. (Junk Decl. Ex. G, ECF No. 1, Ex. 10).
19. On June 8, 2015, the Benefits Office responded to Laura's prior counsel's June 4 correspondence.
20. On June 24, 2015, the Annuity Program dispersed $64,379.15 to Qasim. (Ex. C).
21. On July 1, 2015, the Benefit Plan dispersed an additional $10,000 to Qasim. (Ex. C).
22. On September 17, 2015, Laura's prior counsel filed a motion seeking a judgment against the NFL based on the three transfers totaling $124,379.15 by the Plans to Qasim during the pendency of the Citations (and in contravention of multiple State Court orders).
23. On January 1, 2016, the Plans filed their notice of removal.
24. The Citations naming the NFL and NFLPA as respondents was merely a misnomer because objective manifestations in the record demonstrates that the NFL ERISA Plans were the intended respondents of the Citations.
25. In determining if a misnomer has occurred, "the courts rely on objective manifestations in the record of whom the plaintiff intended to sue." Lally v. City of Chicago, No. 10-CV-5011, Mem. Op. at 10 (N.D. Ill. Jul 7, 2011) (citing Arendt v. Vetta Sports, Inc., 99 F.3d 231, 234 (7th Cir. 1996))(internal citation omitted).
26. "Such objective manifestations may include: the party named in the complaint, correspondence with the intended party, or whether service was effected at the residence of the intended party." Id. (citing Arendt, 99 F.3d at 235) (internal citation omitted).
27. The record demonstrates that:
28. The NFL ERISA Plans knew the Citations were directed toward them because in answering the Citation interrogatories they affirmatively stated that they held Qasim's assets and produced Qasim's NFL ERISA Plan statements to Laura.
29. Additionally, the legal names of the NFL ERISA Plans were relatively difficult to ascertain.
30. Accordingly, this court should find that the Citations naming the NFL and NFLPA but being served upon the NFL ERISA Plans was a mere misnomer.
31. Alternatively, this court should find that the Plans submitted to the supplementary proceedings by answering Laura's Citations.
32. A party submits to a court's personal jurisdiction when its conduct "manifests an intent to submit itself to the court's jurisdiction." Continental Bank, NA. v. Meyer, 10 F.3d 1293 (7th Cir. 1993).
33. The Citations informed the respondents that they were required to file an answer.
34. The NFL ERISA Plans submitted to the supplementary proceedings by participating in the proceedings.
35. The NFL ERISA plans participated in the supplementary proceedings by:
36. The foregoing participation in the supplementary proceedings manifested an intent to submit itself to the court's jurisdiction.
37. Accordingly, this court should deem the NFL ERISA Plans conduct — answering the Citation, directing correspondence to the State Court, and producing documents responsive to the Citation — as acts manifesting an intent to submit to the court's jurisdiction.
38. This court should enter judgment against the NFL ERISA Plans for transferring $124,379.15 to Qasim during the pendency of the citation proceedings and in violation of the State Court's orders.
39. Upon service of a citation to discover assets upon a third-party, the "balance due on the judgment becomes a lien" that "binds . . . all personal property belonging to the judgment debtor in the possession or control of the third party[,]" including any additional property the third-party acquires between service and "disposition of the citation." 735 ILCS 5/2-1402(m)(2).
40. "The citation may prohibit the party to whom it is directed from making or allowing any transfer or other disposition of, or interfering with, any property not exempt from the enforcement of a judgment . . . until the further order of the court or the termination of the proceeding, whichever occurs first." 735 ILCS 5/2-1402(f)(1).
41. The restraining provision "does not adjudicate any rights in the property held by the party . . .; it merely requires that the party hold property which is subject to the reach of the judgment creditor in status quo until the judgment creditor's rights can be determined." Kirchheimer Bros. Co. v. Jewelry Mine, Ltd., 100 Ill.App.3d 360 (1991).
42. The court may punish a third-party who violates the restraining provision of a citation by entering judgment against the third-party "in the amount of the value of the property transferred. . . ." 735 ILCS 5/2-1402(f)(1).
43. The NFL ERISA Plans violated the restraining provision of the Citations by transferring $124,379.15 to Qasim during the pendency of the Citations.
44. The issue of whether the funds were subject to attachment should have been adjudicated by the court, not the NFL ERISA plans.
45. Accordingly, this court should enter judgment against the NFL ERISA Plans for violating the restraining provisions of the Citations by transferring $124,379.15 to Qasim.
Laura submits her Memorandum in Support of this Motion to Enter Judgment.
WHEREFORE, for the reasons set forth above, and in her Memorandum in Support, Plaintiff/Petitioner Laura Mitchell respectfully requests that this court enter an order:
a. entering a judgment against the Annuity Program for $64,379.15 for willful violation of the restraining provision of the Citation in amount equal to funds transferred;
b. entering a judgment against the Benefit Plan for $60,000 for willful violation of the restraining provision of the Citation in amount equal to funds transferred;
c. granting Laura her attorneys' fees and costs in bringing this motion pursuant to Illinois Supreme Court Rule 277(h); and
d. granting any other relief this court deems just and equitable.
NOW COMES the Petitioner, LAURA MITCHELL by and through her attorney, OTTIE ANDRE BRYANT, and Respondent, QASIM MITCHELL having filed an Answer and Appearance in this cause on June 12, 2009 and an Order of Default having been entered against the Respondent on March 25, 2010 for his failure to appear as ordered by the Court on February 18, 2010, and the Court having heard the testimony in open court of the Petitioner in support of the allegations contained in her Petition for Dissolution of Marriage, and the Court having considered all the evidence and now being fully advised in the premises, finds that:
A. This Court has jurisdiction of the parties hereto and of the subject matter hereof.
B. Petitioner was domiciled in and a resident of the State of Illinois at the commencement of this action and has been so domiciled and maintained her residence for a period in excess of ninety (90) days prior to the making of these findings. Petitioner resides in Cook County.
C. The parties were lawfully married on February 14, 2005 in Las Vegas, Clark County, Nevada and the marriage was registered there.
D. One child was born to the parties, name, SEAN, born October 24, 2005. No children were adopted and the Petitioner is not pregnant.
E. Irreconcilable differences have arisen between the parties during the marriage which have led to the irretrievable breakdown of the marriage and future efforts at reconciliation would be impracticable and not in the best interests of the family.
F. The parties have lived separate and apart within the meaning of the Illinois Marriage and Dissolution Act since November of 2007.
F(1). During the marriage the Respondent was a National Football League(NFL) player. being employed by the Chicago Bears and the Petitioner was unemployed outside of the home and at the request of the Respondent, Petitioner was a "stay at home Morn."
F(2). During the marriage the Respondent was the sole wage earner and made all of the financial decisions for the family. During the marriage the Respondent was paid a total of approximately two and one half million dollars($2,500,000) from the Chicago Bears, the Carolina Panthers, the Cleveland Browns and NFL Europe.
F(3). During the marriage the Respondent was solely responsible for paying all debts including but not limited to being solely responsible for paying all federal and state income taxes owed. During the marriage the Petitioner was not responsible for any of the debts since she had no income and she had no control over the marital funds.
F(4). During the marriage including but not limited to tax years 2004, 2005 and, 2006 the Respondent failed to pay said federal income taxes owed and as a result the Petitioner has been subjected to collection efforts by the Internal Revenue Service . That in fact the Internal Revenue Service garnished the Petitioner's bank account in December of 2008 and removed $2,500.00 thereto.
F(5). The Petitioner is not responsible to pay the said Internal Revenue Service any monies for taxes not paid by the Respondent including but not limited to tax years, 2004, 2005, 2006 since she had no income and no control whatsoever over the marital funds. Further the Petitioner was not married to the Respondent in 2004 and therefore Petitioner is not responsible for any of the taxes that are owed for tax year 2004.
G. The Petitioner is a fit and proper person to have the sole care, custody and control of the minor child, SEAN.
H. The question of visitation shall be reserved until further order of this Court. The Respondent lives in Jacksonville, North Carolina and has not attempted to visit with SEAN for 3 years and the Petitioner verily believes that the Respondent would refuse to return SEAN to the jurisdiction of this Court if he was permitted to take SEAN to Jacksonville.
I. An Order of unallocated support for SEAN and for the Petitioner was entered on the 26
J. As a result of the order of August 26, 2009 an arrearage exists in the amount of $82,345.00 in favor of the petitioner and against the respondent, QASIM MITCHELL.
K. A Temporary Restraining Order was entered on June 8, 2009 wherein the Respondent was restrained and enjoined from inter alia withdrawing, expending otherwise disposing of any income which he might receive from the National Football League.(NFL).
L. A Preliminary Injunction Order was entered on June 18, 2009 wherein Respondent was restrained and enjoined from inter alia withdrawing, expending otherwise disposing of any income which he might receive from the NFL. Further Respondent was to turn over these said monies. to Petitioner's counsel.
M. Respondent violated both the June 8, 2009 and the June 18, 3009 orders of this Court wherein he received approximately $50,000 from the NFL as some type of severance pay, said monies being received in or about June of 2009 and the Respondent failed and refused to turn over any of these these said monies top petitioner's counsel or to give any of the monies to the petitioner.
N. Thereafter a Rule to Show Cause was issued against the Respondent on August 26, 2009 wherein he was ordered to show cause why he should not be held in contempt of Court for his failure to turn over the said monies received from the NFL.
O. Petitioner attempted to serve the order on the Rule to Show Cause upon Respondent in Jacksonville, North Carolina. On two occasions in September and December 2010 the Sheriff of Onslow County in Jacksonville, North Carolina attempted service at the respondent's address as stated on his Appearance and Answer filed in June of 2009-said address being 102 El Dorado Court, Jacksonville, North Carolina 28546. The Sheriff of Onslow County filed an Affidavit of Non Service indicating that an unknown person stated that the respondent did not reside at the said address.
P. Petitioner has given testimony stating that during numerous conversations with respondent including her latest conversation with the respondent, in February of 2009 the Respondent stated that he does reside at the aforementioned address of 102 El Dorado Court, Jacksonville, North Carolina and that during the pendency of these proceedings he has never resided elsewhere.
P(1). Pursuant to Supreme Court Ru1e 296(2)(A) the Respondent avoided service of the Order of the Rule to Show Cause by concealing himself and therefore a Body Attachment is hereby issued against the Respondent, QASIM MITCHELL.
Q. The Respondent is scheduled to receive an unknown amount of money from the NFL sometime in 2011 or/and 2012. The Petitioner is entitled to receive some of these monies since the Respondent owes an arrearage in the the sum of $82,345.00.
R. The Respondent will sometime in the future receive a payment from the NFL's pension fund as a veteran player. The Petitioner is entitled to receive one-half of the said pension funds.
R(1) The Respondent will sometime in the future receive various monies from the Respondent's 401(k) fund. The Respondent is entitled to receive one-half of these said monies.
S. The parties have divided their marital property including their personalty.
T. Respondent has stated to petitioner that as of March, 2011 he is employed as a football player for the Jacksonville Sharks of the Arena Football League.
Respondent has told Petitioner that his salary is approximately $1,000 weekly. Petitioner has reason to believe that Respondent's salary is approximately $2,000 per week.
T(1). The Respondent is gainfully employed and should be responsible for college expenses for the minor child pursuant to 750 ILCS 5/513. Thus the Respondent shall be responsible to pay SEAN's educational expenses including but not limited to room and board, tuition, transportation, books, fees, registration and application costs, medical expenses incuding medical insurance, dental expenses and living expenses during the school year and periods of recess.
U. During the marriage in approximately 2006 the Respondent bon-owed the sum of $150,000 from the Petitioner's parents, Mr. & Mrs. Allen Daniels. The Respondent promised to repay said monies within 12 months. The Respondent failed to do so although Petitioner requested that her parents be repaid.
V. During the marriage the Respondent purchased a BMW automobile with financing from BMW Financial, a Dodge Charger with financing from Great Lakes Credit Union and he also leased a GMC Cadillac from GMC Financial. All of these vehicles have been repossessed. The Respondent is liable and should be responsible for all of these payments.
X. Respondent does not have any life insurance for the benefit of their Minor child, SEAN. Respondent is financially able to provide said life insurance. Further Respondent has provided health insurance for the Petitioner and the minor child through the NFL. After the judgment for dissolution of marriage is entered Petitioner will be unable to continue to be covered on this said policy. Respondent shall cooperate with Petitioner in taking all necessary and appropriate steps under COBRA to convert the said Health Plan medical insurance insuring Petitioner at the time of the effective date of this Judgment to a plan in her own name in order to permit Petitioner to continue coverage under COBRA to the extent pen lifted by the policy and by law. Respondent shall sign any and all documents required for said conversion to the COBRA Plan. Respondent shall be responsible to make the payments for the petitioner under the COBRA plan.
X(1). Respondent ought be barred from receiving maintenance from the Petitioner as he is gainfully employed and he is an able bodied man. The question of maintenance for Petitioner to receive maintenance from Respondent should be reserved.
Y. There is no petition for dissolution of the parties' marriage pending in any other county or state.
Z. This Court has jurisdiction of the parties to this cause and of the subject matter hereof.
IT IS THEREFORE ORDERED:
1. A Judgment of Dissolution of Marriage is awarded to both of the parties. Accordingly, the bonds of matrimony existing between the Petitioner, LAURA MITCHELL and the Respondent, QASIM MITCHELL be and the same are hereby dissolved, and the parties are, and each of them are, freed from the the obligations thereof, and are herewith divorced from each other.
2. Judgment is hereby entered in favor of the Petitioner, LAURA MITCHELL and against the respondent, QASIM MITCHELL in the amount of $82,345.00 for the unallocated support arrearage.
3. Petitioner is awarded the sole care, custody and control of the minor child, SEAN MITCHELL.
4. The question of visitation with the minor child, SEAN is hereby reserved until further order of this Court.
5. The order entered on August 26, 2009 in the amount of $4500 per month for unallocated support shall stand.
6. The Respondent, QASIM MITCHELL shall be solely responsible for and shall pay the Internal Revenue Service for any and all outstanding amounts due including interest & penalities was owed by the parties including but not limited to tax years, 2004, 2005 and 2006. The Petitioner, LAURA MITCHELL is not responsible to pay any of these outstanding monies owed to the Internal Revenue Service.
7. The Respondent is ordered to turn over any and all monies which he may receive from the NFL in the future in order to satisfy the aforementioned arrearage of $83,245.00.
7(a). A body attachment shall be issued against the Respondent, QASIM MITCHELL for his violation of the court orders entered on .Tune 8 and June 18, 2009.
8. The Petitioner is awarded one-half(1/2) interest in the Respondent's pension fund from the NFL. The Respondent shall cooperate with Petitioner and shall sign all necessary documents. The Petitioner shall file the appropriate QDRO within 30 days.
9. The Petitioner is awarded one-half interest in the Respondent's 401(k) fund from the NFL.
The Respondent shall cooperate with Petitioner and shall sign all necessary documents. The Petitioner shall file the appropriate QDRO within 30 days.
10. The Respondent is ordered to repay Petitioner's parents, Mr.&Mrs. Allen Daniels the sum of $150,00.00 instanter,
11. The Respondent is ordered to pay all college expenses for the minor child including but not limited to room and board, tuition, transportation, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses and living expenses during the school year and periods of recess.
11(a). The Respondent shall secure a life insurance policy in the amount of $100,000 with the Petitioner as the beneficiary on behalf of the minor child, SEAN.
12. The Respondent is ordered to assist the Petitioner with converting the Petitioner's health insurance policy to a COBRA by signing whatever documents are necessary. The Respondent shall pay for the. COBRA plan for the Petitioner.
13. The Respondent shall continue health insurance coverage for SEAN and shall be responsible to pay for the said health insurance. The Respondent shall pay for the extra-ordinary medical expenses for SEAN including but not limited to the cost of braces.
14. The Petitioner shall pay her Attorney the remaining attorney fees due at the rate of $200.00 monthly beginning in April of 2011. If Petitioner receives monies from the Respondent as a result of this Court's Order then petitioner shall pay her Attorney the entire monies due.
15. The Petitioner may resume the use of her maiden name which is DANIELS.
16. QASIM MITCHELL is hereby now and forever barred from receiving any maintenance formerly known as alimony from the petitioner LAURA MITCHELL.
17. The question of maintenance as to the Petitioner receiving maintenance from the Respondent is hereby reserved.
18. The Court shall retain jurisdiction of this matter for the purpose of enforcement.
19. This is a final judgment, and there is no just reason for delaying either enforcement or appeal or both.
This Statement of Benefits is provided to summarize the benefit amounts of your pension plan. The retirement benefit amount is based on the Life Annuity Option and does not reflect any reductions due to legal claims. Every effort has been made to insure the accuracy of this information; however, in the case of any discrepancy, the provisions of the legal documents embodying the Plan, or the actual Plan and Trust, will govern. Your rights to benefits can only be determined by official action of the Retirement Board.
Enclosed, please find a copy of the August 18, 2015, letter from attorney Michael Junk addressed to Judge Daniel J. Kubasiak, copying your office, regarding the above captioned matter. The letter was sent to Judge Kubasiak via Federal Express priority overnight on August 18
In order to provide all parties involved with the background information and confirmation of Mr. Junk's promised cooperation moving forward, I am requesting that you and/or Ms. Fineberg have a copy of Mr. Junk's letter with attachments available for the Court tomorrow should our package not arrive in time. As I initially stated, I have enclosed a complete copy of the letter and attachments.
Thank you in advance for your assistance, I appreciate your understanding and cooperation in our effort to keep these proceeding moving forward. Should you have any questions or concerns, please do not hesitate to contact me via email at
