MOTION FOR DAMAGES

JOHN Z. LEE, District Judge.

Plaintiffs, 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 Defendant Concrete, Etc., Inc. (hereinafter the "Company"). In support of this Motion, Plaintiffs, by their attorneys state:

1. On August 25, 2016, 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 Defendant has 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. In this Complaint, Plaintiffs specifically alleged that Defendant failed to report and pay contributions from April 1, 2012 to the present. Plaintiffs requested relief included producing books and records for an audit upon Plaintiffs' request.

2. The Company's Registered Agent and President, Karen Coen, was served with the summons and complaint via certified mail through the Illinois Secretary of State on September 19, 2016; the Company failed to answer; and the Court entered a default judgment against the Company on February 23, 2017. See attached Exhibit A, and Docket Numbers 7 and 14.

3. On September 30, 2016, the undersigned counsel contacted the Company's President and Registered Agent, Karen Coan, by telephone. Ms. Coan agreed to cooperate with the Funds' scheduling of a compliance audit for the period of April 1, 2012 through September 30, 2016.

4. As established by the Laborers' Field Representative, Rocco Marcello, the independent auditing firm of Calibre CPA Group, PLLC ("Calibre"), was selected to perform a review of the Company's books and records for the period between April 1, 2012 through September 30, 2016 for the Funds. (See attached, Exhibit C, Marcello Affidavit at ¶4).

5. On January 12, 2017, Calibre issued an audit report with findings. Calibre's audit report, shows that the Company owes $10,299.51 in contributions, which includes $420.76 in unpaid union dues. (See Exhibit B, Audit Report).

6. According to the Collective Bargaining Agreement and the Trust Agreements to which the defendant is 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, CAICA and LECET funds, and for Union dues. As such, liquidated damages are owed in the amount of $1,952.96 to the Welfare, Pension and Training funds, liquidated damages are owed in the amount of $53.47 to LDCLMCC, CAICA and LECET funds and Union Dues Fund. Also, accumulated liquidated damages in the amount of $214.11 are owed for the Company's prior delinquent reports, and interest is calculated at twelve (12) percent and is owed for all delinquencies excluding union dues. Thus, the amount of $1,917.45 is owed to date in accumulated interest according to the Funds' Summary Spreadsheet Report. (See Exhibit D, Funds' Summary Spreadsheet Report; Exhibit C, Marcellos Affidavit at ¶5).

7. The Defendant is also obligated to pay $1,095.52 for the cost of the audit based on the respective Trust Agreements to which it is bound. (See Exhibit B, Audit Report; Exhibit C, Marcello Affidavit at ¶4; Exhibit D, Funds' Summary Spreadsheet Report).

8. Additionally, Plaintiffs are entitled to attorneys' fees and costs under ERISA, 29 U.S.C.§1132(g)(2)(B). The attached affidavit of Sara Stewart Schumann establishes the amount of attorneys' fees incurred in this matter are $5,221.50 and $475.00 in costs, which consists of service of process and filing fees. (See Exhibit E, Schumann Affidavit, and Exhibit E1, Attorney fee report).

9. On January 17, 2017, the undersigned counsel sent via regular mail and email a demand letter with a copy of the audit to Ms. Coen. The letter explicitly required that the Company raise any challenges to the audit report with any supporting evidence by January 27, 2017 (See Docket No. 12, Exhibit A, Counsel's Letter).

10. On February 2, 2017, the undersigned contacted Ms. Coen by telephone and informed her that Plaintiffs would be moving the Court for an entry of default against the Company and would shortly thereafter move for damages. Ms. Coen confirmed the Company is no longer operating and will not defend the lawsuit.

WHEREFORE, Plaintiffs request that the Court enter a judgment order for damages in the total amount of $21,229.52 to be entered against the Defendant, Concrete Etc., Inc., and in favor of the Funds. Plaintiffs further request that this Court order Defendant, should it resume operations, 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 to provide written proof that it has obtained a surety bond to Plaintiffs' counsel, Sara S. Schumann.

Exhibit A

Exhibit B

Dear Ms. Mashos:

We have completed the inspection of the above-referenced contractor for the period of April 1, 2012 through September 30, 2016. The findings consist of $10,299.51 not including penalties or report costs.

Please note, this should be considered an exit inspection.

A wage owed report has been issued separately.

Please feel free to contact our offices with any questions.

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 September 30, 2016. 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 Concrete Etc., Inc. 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 one individual on payroll doing covered work that have been previously reported to the funds.

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.

The findings of this audit report should not he construed as an endorsement or ratification of any of the Company's contribution practices. These findings are not based on observations of employees doing actual *work but solely on those documents that the Employer provided to the auditors. This firm has not been retained to provide, and does not provide, any interpretation or advice concerning any terms of the collective bargaining agreement between the Company and the Union or the terms of the Funds' respective Agreement and Declarations of Trust. All questions concerning the Company's contribution practices, or any contributions or benefits-related issue, should be directed to the Union or the Fund office. No failure to note an exception to any of the employees contribution practices should be construed as a ratification of such practice or waiver of the Union or the Funds' ability to challenge such practice in the future, This report is not a determination of withdrawal liability owed under the Multi-Employer Pension Plan Amendments Act.

We shall be pleased to furnish any additional information desired.

Calibre CPA Group, PLLC

Reconciliation of Differences Per Year

Calibre CPA Group, PLLC

Details Report

Calibre CPA Group, PLLC

Details Report

Exhibit C

Rocco Marcello 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 Concrete Etc, Inc. (the "Company"). This affidavit is submitted in support of the Laborers' Funds' Motion for Damages.

2. The Company has been a signatory employer since October 3, 2008 as reflected by the Funds' records and as shown in the Collective Bargaining Agreement that was attached to the Complaint in the matter, 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. The Company had failed to submit its monthly reports to the Funds and this lawsuit was filed, on August 25, 2016, After the Funds filed the Complaint and effectuated service, the Company failed to answer and has continued to fail to remit its monthly reports and payments as required by the Collective Bargaining Agreement,

4. The Funds selected Calibre CPA Group, PLLC ("Calibre") to review the Company's books and records for compliance from April 1, 2012 through September 30, 2016. Calibre completed this review and the audit report, dated January 12, 2017, shows that $10,299,51 is owed to the Funds for delinquent principal contributions during the audit period, including $420.76 in delinquent Union dues, The respective Agreements and Declarations of Trust of the Laborers' Funds, to which the Company is bound, require it to pay the $1,095,52 cost for the audit. The audit report with Calibre's invoice is attached to the Plaintiffs' Motion for Damages as Exhibit B.

5. 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, CAICA and LECET funds, and for Union dues, Also, interest is calculated at twelve (12) percent and is owed for all delinquencies excluding the union dues, These amounts are detailed in the Laborers' Pension & Welfare Funds Contractor Penalty History report that shows $1,952,96 in liquidated damages due to the delinquent contributions to the Welfare, Pension, and Training funds and $53.47 in liquidated damages due to the delinquent contributions to the LDCLMCC, CAICA and LECET funds, and for Union dues, as well as $214.11 for accumulated liquidated damages for prior delinquent contributions. Thus, the Company owes a total amount of $2,006.43 for liquidated damages from the audit findings, plus $214.11 for accumulated liquidated damages, and $1,917.45 in accumulated interest to date pursuant to its delinquency. The Laborers' Pension & Welfare Funds' Audit Summary Spreadsheet Report details these amounts and is attached to the Plaintiffs' Motion for Damages as Exhibit D.

6. On January 17, 2017, a letter was sent to the Company with a demand in the amount of $19,640,02 for delinquent principal contributions, union dues, liquidated damages, audit costs and attorneys's fees as of that date. This letter further demanded that the Company present challenges, if any, to the audit findings by January 27, 2017.

7. As required by 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.

Rocco Marcello Field Department Representative Subscribed and sworn to before me this 28 day of February 2017 ______________________________ NOTARY PUBLIC

Exhibit D

Exhibit E

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 of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Funds") in the action against Concrete Etc, Inc. (the "Company"). This affidavit is submitted to document attorneys' fees and costs incurred by the Laborers' Funds for the period from August 1, 2016 to February 28, 2017, for work performed in connection with obtaining contributions owed.

2. Since August 1, 2016, this firm has billed the Laborers' Funds on an hourly basis for collections services rendered to the Funds on this matter, at a rate of $225.00 per hour for shareholders, $195.00 per hour for associates, and $110.00 per hour f cause records kept for legal work on this matter were kept contemporaneously and are attached hereto as Exhibit El.

3. Exhibit El hereto sets forth the time expended from August 1, 2016 through February 28, 2017, by the firm's attorneys and clerks/paralegals in this matter. The billable entries were reviewed, and any duplicative entries were struck. As set forth in Exhibit El, the Laborers' Funds have incurred legal fees to my firm in this matter in the amount of $5,221.50.

4. In addition, the Laborers' Funds have incurred court costs in the prosecution of this matter totaling $475.00, which consists of filing fees, and fees for service of process.

Exhibit E1

JUDGMENT ORDER

This cause coming before the Court on the Plaintiffs' Motion for Damages, with due notice having been given to the Defendant, and the Court having found that the Defendant was properly served with summons and complaint.

IT IS HEREBY ORDERED:

Judgment is entered on behalf of the Plaintiffs, the Laborers' Pension and Welfare Funds and against Defendant Concrete Etc. Inc., for the period of April 1, 2012 through September 30, 2016 in a total amount of $21,229.52, which consists of:

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 show proof to the Funds' counsel, Sara S. Schumann, that the Company has obtained a surety bond in the amount of $5,000.00, should the Company resume operations.