ELAINE E. BUCKLO, District Judge.
NOW COME Plaintiffs, SHEET METAL WORKERS LOCAL 265 WELFARE FUND, et al., by their attorneys, and move the Court for the entry of an order reopening this action for the limited purpose of enforcing the terms of the Settlement Agreement (entered into between the parties on April 7, 2017) and entering judgment against Defendant, M & J's Cooling, Inc., an Illinois corporation, and John Kapidis, individually. In support of the Motion, Plaintiffs state as follows:
1. This action was originally brought by the Plaintiffs, the Trustees of the jointly-administered, labor-management employee benefit plans collectively known as the Sheet Metal Workers Local 265 Fringe Benefit Funds, alleging, inter alia, that Defendant breached its obligations under the terms of the collective bargaining agreements entered into with the Sheet Metal Workers International Association, Local 265 and the Agreements and Declarations of Trust under which the Plaintiff Funds are maintained. Specifically, Plaintiffs allege that Defendant failed to remit payment of contributions for work performed on its behalf by beneficiaries of the Plaintiff Funds. The Complaint was brought pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1132, 1145.
2. On May 5, 2017, an Agreed Order of Dismissal incorporating the terms for settlement agreed to by the parties as set forth in the attached Settlement Agreement was entered by this Court (a copy of the Agreed Order of Dismissal is attached hereto).
3. The Defendant and John Kapidis acknowledged and agreed that they owed the total amount of $37,129.11 for contributions and liquidated damages for the time period February 2016 through September 2016, and audit contributions and liquidated damages for the time period April 1, 2013 through June 30, 2016, as well as attorneys' fees from July 2016 to January 31, 2017, as described in Paragraph 6 of the Settlement Agreement.
4. The parties agreed that Defendant and John Kapidis would submit the amount set forth in Paragraph 3 above by way of the payment of 26 monthly installments of $1,500.00 each, with the 26th (final) installment of $239.34. The parties agreed to the following payment schedule:
5. Defendant agreed to remain current with respect to the submission of monthly contribution reports and fringe benefit contributions that became due throughout the period of the payment schedule.
6. In the event Defendant failed to submit the payments as agreed in Paragraph 6 and Exhibit A to the Promissory Note, or failed to timely submit current reports and contributions due, the Defendant would be considered in default of the Settlement Agreement. Thereafter, the Plaintiff Funds would be entitled to file a motion in this Court to reinstate the case for the limited purpose of entering judgment against Defendant and John Kapidis for all unpaid installments and contributions and liquidated damages due under the Settlement Agreement and Promissory Note, plus the Plaintiff Funds' attorneys' fees and costs incurred as a result of Defendant and John Kapidis's default and for enforcement of the Settlement Agreement.
7. Defendant and John Kapidis failed to submit the first installment payment of $1,500.00 due by April 20, 2017 and failed to submit Defendant's monthly fringe benefit contribution report and the contributions due thereon for March 2017. Although under no obligation to do so, on May 15, 2017, Plaintiffs' counsel sent an e-mail to John Kapidis regarding the failure of the Defendant and John Kapidis to abide by the terms of the Settlement Agreement. Plaintiffs' counsel advised Mr. Kapidis that the installments due on April 20, 2017 and May 20, 2017 and the Defendant's March 2017 report and contributions must be submitted by May 20, 2017.
8. On May 15, 2017, Mr. Kapidis responded to Plaintiffs' counsel's e-mail advising that the Defendant's reports and contributions for March and April 2017 were filed on-line. Mr. Kapidis also advised that he thought the first installment of $1,500.00 was due by May 20, 2017.
9. On May 19, 2017, Mr. Kapidis submitted only the first installment payment of $1,500.00 by check no. 1213 drawn on the account of Aire Serv of Kankakee. The Plaintiff Funds could not accept this check because Aire Serv of Kankakee is a company that is not signatory to a collective bargaining agreement with the Sheet Metal Workers International Association, Local 265.
10. As of the date of filing the instant Motion, Defendant and/or John Kapidis has not paid the first and second installment of $1,500.00 due under the Promissory Note and Settlement Agreement.
11. For all the reasons stated, the Plaintiffs hereby move the Court for the entry of an Order reopening this action for the limited purpose of enforcing the terms of the Settlement Agreement and entering judgment against the Defendant and John Kapidis, individually. Specifically, Plaintiffs request:
NOW COME the Plaintiffs, SHEET METAL WORKERS LOCAL 265 WELFARE FUND, et al., by and through their attorneys, and Defendant, M & J'S COOLING, INC., and hereby state that this case has been settled and all issues and controversies have been resolved to their mutual satisfaction. The parties request the Court to retain jurisdiction to enforce the terms of the Settlement Agreement under the authority of Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 381-82 (1994).
IT IS HEREBY ORDERED:
This Settlement Agreement ("Agreement") is made and entered into this ________ day of April 2017, by and between the Plaintiffs, SHEET METAL WORKERS LOCAL 265 WELFARE FUND, et al., ("Funds") and Defendant, M & J'S COOLING, INC., ("M&J's") to resolve the above captioned lawsuit. The parties agree as follows:
1. Upon execution of this Settlement Agreement and the Promissory Note attached hereto and incorporated herein by reference, the Funds and M&J's will submit an agreed order of dismissal through which the Court will retain jurisdiction Until June 20, 2019 to enforce the Settlement Agreement. In the event that M&J's breaches the Settlement Agreement, the Funds shall be entitled to move the Court to enforce the Settlement Agreement and request that judgment be entered against M&J's and John Kapidis, for the balance due and any additional amounts that may come due in the course of the Settlement Agreement.
2. M&J's has at all relevant times been hound to a collective bargaining agreement which obligated it to report and pay monthly contributions at the rates specified therein to the Funds.
3. The Funds through their accountants performed a review of M&J's' payroll records for the period of April 1, 2013 to June 30, 2016. Based on that review, it was determined that M&J's owed to the Funds contributions of $8,115.16 and liquidated damages in the amount of $811.51.
4. In addition to the amounts set forth in Paragraph 3, M&J's submitted monthly contribution reports for the period of February 2016 through September 2016 indicating that there were contributions due on behalf of M&J's' employees in the amount of $21,537.80 and liquidated damages in the amount of $2,153.77. M&J's further owed liquidated damages in the amount of $628.99 for the period of September 2013 through November 2013 and January 2016.
5. Since it was necessary to file suit and pursue the delinquent contributions due on behalf of M&J's' employees, the Funds incurred attorneys' feel; in the amount of $3,882.00 for July 2016 to January 31, 2017.
6. In order to avoid the time and expense of continued litigation, the parties have agreed to accept the sum of $37,129.11, plus 1.5% interest per month on a declining basis over a period of twenty-six (26) months pursuant to the payment schedule in Exhibit A of the Promissory Note.
7. In exchange for the above, John Kapidis agrees to be jointly and severally liable for the amounts set forth in Paragraph 6. The panics agree that the personal guarantee agreed to by Mr. Kapidis shall cease upon completion of the Settlement Agreement.
8. M&J's agrees to remain current with respect of its submission to monthly reports and fringe benefit contributions that may become due throughout the period orate payment schedule set forth in Exhibit A to the Promissory Note.
9. In the event that M&J's fails to timely submit the payments as agreed in Paragraph 6 and Exhibit A to the Promissory Note or fails to submit current reports and contributions as they become due during the payment schedule, M&J's shall be considered in default of this Agreement. Thereafter, the Funds shall be entitled to file a motion in this federal court to reinstate the case for the limited purpose of entering judgment against M&J's for all unpaid installments and contributions and liquidated damages due under this Agreement and the; Promissory Note, and the Funds' attorneys' fees and costs incurred as a result of M&J's default and enforcement of this Agreement.
10. It is further understood and acknowledged between the parties that nothing contained herein limits or modifies the right of the Funds to audit the payroll books of M&J's at such future time, as in the course of their regular audit program if such an audit may be requested, nor do the terms of this Agreement limit or modify the Funds' rights to recover from M&J's any additional contributions or liquidated damages which may become due or which may be found to have been due, as a result of such an audit for any time period not previously audited after July 1, 2016.
11. Nothing contained herein shall require the Funds to take legal action in the event of a breach of this Agreement. If the Funds decide in their sole discretion to allow additional time for M&J's to cure such breach, such allowance far additional time shall not be construed as a waiver of their rights under this Agreement.
12. The parties agree that, other that as stated herein, no promises or inducements have been made or offered; that this Agreement is not executed with reliance upon any statements or representations other than as stated herein; that this Agreement contains the entire agreement between the parties hereto and shall be binding upon and shall inure to the benefit of the parties and their respective heirs, executors, personal representatives, successors and assigns; and that this Agreement may be amended only by writing executed by all parties.
13. The parties agree and warrant that the individuals signing this Agreement have the capacity and authority and have secured all necessary approval to execute this Agreement and bind the parties to its terms.
14. This Agreement may be executed in multiple or duplicate copies and each such executed copy shall deemed to be an original.
For the valued received, M&J's Cooling, Inc. ("Employer") and John Kapidis, individually ("Kapidis"), promise to pay to the order of the SHEET METAL WORKERS LOCAL 265 FRINGE BENEFIT FUNDS the total amount due of $37,129.11, in payments, payable on the 20
In addition to the foregoing, Employer and Kapidis, promise to promptly submit on a monthly basis contributions due and owing during the term in which payments are made pursuant to this Note. Such contributions shall be submitted together with the payments provided for in the preceding paragraph.
In the event that Employer timely submits installments one (1) through twenty-two (22)
Upon default in the payment of any such installment and/or Employer's monthly report and current contributions due thereon, the balance due then remaining unpaid, plus any current contributions and liquidated damages remaining due and owing shall, at the option of the holder, become immediately due and payable, without demand or notice. In the case of said default, Employer and Kapidis further promise to pay all costs of collection and reasonable attorneys' fees incurred by said Funds as a result of the default.
All payments shall be made to the SHEET METAL WORKERS LOCAL 265 FRINGE BENEFIT FUNDS.
It is further understood and acknowledged between the parties that nothing contained herein limits or modifies the right of the Funds to audit the payroll books and records of Employer at such future time, as in the course of their regular audit program if such an audit is requested, nor do the terms of this Promissory Note limit or modify the Funds' rights to recover from Employer additional contributions or liquidated damages which may become due or which may be found to have been due, as a result of such audit for any time period hot previously audited after July 1, 2016.
To secure the payment of this Promissory Note, the undersigned hereby, at any time after default, confess judgment, without process, in favor of said Funds, their successors or assigns, for the unpaid balance due under this Promissory Note and any current contributions and liquidated damages that may be due and owing, together with costs and reasonable attorneys' fees, and waive and release all errors which may intervene in such judgment. The obligations hereunder shall be joint and several.
