JOHN R. BLAKEY, District Judge.
NOW COME Plaintiffs, SMART LOCAL 265 WELFARE FUND, et al., by their attorneys, and move the Court for the entry of an order reopening this action to enforce the terms of the Settlement Agreement entered by the parties in August 2018. 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 agreement entered into with 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 August 31, 2018, a Notice of Dismissal with attached Settlement Agreement and Payment Plan incorporating the terms for settlement agreed to by the parties was filed with this Court (copies of the Notice of Dismissal, Settlement Agreement and Payment Plan Consent Decree are attached as Exhibit 1).
3. On September 4, 2018, this Court dismissed the instant action without prejudice consistent with the parties' agreement with leave to reinstate by February 1, 2021 (a copy of the Court's Notification of Docket Entry is attached as Exhibit 2).
4. Defendant acknowledged that it owed the total amount of $60,318.97 for contributions for the time period February 2018 through May 2018, 5% liquidated damages and attorneys' fees and costs, as described in Paragraphs 3 and 4 of the Settlement Agreement.
5. Defendant agreed to remain current with respect to its submission of monthly reports and fringe benefit contributions that may become due throughout the period of the payment schedule.
6. Defendant and Amy Majewski agreed to make payment to Plaintiffs of the amount set forth in the Promissory Note attached to the Settlement Agreement, being $60,318.97, by the submission of monthly payments of $2,000.00 due on the 20th day of each month from August 20, 2018 through December 20, 2021, with a final payment of $1,522.12 due on January 20, 2021.
7. If Defendant fails to timely submit the payments contained in the Promissory Note or fails to submit current reports and contributions as they become due during the payment schedule, the Defendant would be considered in default of the terms of the Settlement Agreement. Thereafter, the Plaintiff Funds would be entitled to file a motion with this Court to reopen this case for the purpose of entering judgment against Defendant and Amy Majewski for all unpaid installments and the Plaintiffs' attorneys' fees and costs incurred as a result of the Plaintiffs pursuit of enforcement of the Settlement Agreement, as set forth in Paragraph 7 of the Settlement Agreement.
8. Nothing contained within the Settlement Agreement would require the Plaintiff Funds to take legal action in the event of a breach of the Settlement Agreement. If the Plaintiff Funds decide in their sole discretion to allow additional time for the Defendant to cure a breach, such allowance for additional time shall not be construed as a waiver of the Plaintiff Funds' rights under the Settlement Agreement.
9. Defendant and Amy Majewski have not submitted their installment payments of $2,000.00 due on December 20, 2018, January 20, 2019 and February 20, 2019 pursuant to the terms of the Settlement Agreement and Promissory Note, as described in Paragraph 6 above. On February 27, 2019, Plaintiffs' counsel sent a letter to Amy Majewski requesting that the $2,000.00 installments due on December 20, 2018, January 20, 2019 and February 20, 2019 be remitted by March 8, 2019 (a copy of the February 27, 2019 letter is attached as Exhibit 3). Additionally, Defendant has failed to submit the monthly fringe benefit contribution reports and payment of any fringe benefit contributions due thereon for October 2018 through the present date.
10. Defendant and Amy Majewski have not submitted the additional installment payment of $2,000.00 due on March 20, 2019, pursuant to the terms of the Settlement Agreement and Promissory Note, as described in Paragraph 6 above.
11. For all the reasons stated, the Plaintiffs hereby move the Court for the entry of an Order reopening this action to enforce the terms of the Settlement Agreement and Promissory Note and to enter judgment against the Defendant and Amy Majewski. Specifically, Plaintiffs request:
Plaintiffs, SHEET METAL WORKERS LOCAL 265 WELFARE FUND, et al., by their attorneys, and, as of right in accordance with Rule 41(a)(1)(I), of the Federal Rules of Civil Procedure, hereby dismiss this action without prejudice pursuant to the execution of a Settlement Agreement on August 6, 2018. A true and correct copy of the Settlement Agreement is attached to this Notice of Dismissal, and is incorporated by reference.
Plaintiffs request that this Court retain jurisdiction of this case until February 1, 2021 solely to enforce the incorporated Settlement Agreement in the event of a breach by Defendant consistent with Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381-82, 114 S.Ct. 1673, 128 S.Ct. 391 (1994).
The undersigned, an attorney of record, hereby certifies that she electronically filed the foregoing document (Notice of Dismissal) with the Clerk of Court using the CM/ECF system, and further certifies that she mailed the above-referenced document by United States Mail to the following non-CM/ECF participant on or before the hour of 5:00 p.m. this 31st day of July 2018:
This Settlement Agreement is made and entered into this ___ day of ____ 2018, by and between the Plaintiffs, SMART LOCAL 265 WELFARE FUND, et al., ("Funds") and Defendant, TOP NOTCH SHEET METAL FABRICATING, INC. ("Top Notch"), to resolve the above-captioned lawsuit. The parties agree as follows:
1. Upon execution of this Settlement Agreement ("Agreement") and the Promissory Note attached hereto and incorporated herein by reference, the Funds and Top Notch will submit an agreed order of dismissal through which the Court will retain jurisdiction until February 2021 to enforce the Agreement. In the event that Top Notch breaches the Agreement, the Funds shall be entitled to move the Court to enforce the Agreement and request that judgment be entered against Top Notch and Amy Majewski ("Majewski") for the balance due on the Promissory Note and any additional cost and reasonable attorney fees that become due and owing during the term of the Promissory Note.
2. Top Notch has at all relevant times been bound to a collective bargaining agreement which obligated it to report and pay monthly contributions at the rates specified therein to the Funds.
3. Pursuant to contribution reports submitted by Top Notch for the months of February 2018 through May 2018, Top Notch owes $53,896.34 in contributions and $5,389.63 in 10% late fees.
4. Since it was necessary to file suit and pursue the delinquent contributions due on behalf of Top Notch's employees, the Funds incurred attorney fees and court costs in the amount of $1,033.00.
5. The Trustees' have agreed to enter into a payment plan covering the amounts due as detailed in the attached Promissory Note.
6. Top Notch further agrees to remain current with respect of its submission to monthly reports and fringe benefit contributions that may become due throughout the period of the payment schedule.
7. In the event that Top Notch fails to timely submit the payments as contained in the Promissory Note or fails to submit current reports and contributions as they become due during the payment schedule, Top Notch 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 Top Notch and Majewski for all unpaid installments and the Funds' attorney fees and costs incurred as a result of the Plaintiffs' need to pursue enforcement of this Agreement.
8. 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 Top Notch at such future time, as in tile course of their regular audit program if such an audit may he requested, nor do the terms of this Agreement limit or modify the Funds' rights to recover from Top Notch any additional contributions or late fees which may become due or which may be found to have been due as a result of such audit.
9. 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 Top Notch to cure such breach, such allowance for additional time shall not be construed as a waiver of their rights under this Agreement
10. The parties agree that, other than 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.
11. 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.
12. This Agreement may be executed in multiple or duplicate copies and each such executed copy shall deemed to be an original.
For the value received, TOP NOTCH SHEET METAL FABRICATING, INC. ("Employer") and AMY MAJEWSKI ("Individual"), promise to pay to the order of the SMART LOCAL 265 FRINGE BENEFIT FUNDS ("Funds") the total amount due of $60,318.97, in payments, payable on the last Friday of each month, payments to include principal, plus interest at 1.5%, per month, on the declining balance. Employer and Individual promise to pay such payments as set forth on the schedule below.
In addition to the foregoing, Employer and Individual 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 payment shall be submitted in accordance with Employer's obligation set forth in the collective bargaining agreement between the Employer and SMART Local 265.
Upon default in the payment of any such installment, including current contributions, the whole or principal sum then remaining unpaid under this Note shall, at the option of the Funds, become immediately due and payable, without demand or notice. In the case of said default, Employer and Individual further promise to pay all costs of collection and reasonable attorney fees incurred by said Funds as a result of the default.
All payments shall be made to the SMART LOCAL 265 FRINGE BENEFIT FUNDS and sent so that they are received on or before the due date, to the offices of Baum Sigman Auerbach & Neuman, Ltd., do Cecilia Scanlon at 200 W. Adams Street, Suite 2200, Chicago, Illinois 60606.
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, together with costs and reasonable attorney fees and waive and release all errors which may intervene in such judgment. The obligations hereunder shall be joint and several.
This docket entry was made by the Clerk on Tuesday, September 4, 2018:
MINUTE entry before the Honorable John Robert Blakey: Pursuant to Plaintiffs' notice of dismissal [10], this case is hereby dismissed without prejudice under Rule 41(a) consistent with the parties Settlement Agreement [10-1]. If neither party moves to reinstate the case by 2/1/21, this dismissal will become a dismissal with prejudice without further order. The 9/6/2018 initial status conference is stricken. Civil case terminated. Mailed notice. (If,)
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Dear Amy:
Your company entered into two Promissory Notes with the Funds for the repayment of delinquent contributions your company owed on behalf of its employees and late fees your company incurred as a result of the delinquency. On January 14, 2019, I wrote to you regarding your company's failure to submit the installments due in December 2018 under both Promissory Notes.
As of today's date, your company remains in default under both Promissory Notes. Under the first Promissory Note, your company owes a $4,000 installment for December 20, 2018 and a final payment of $993.31 for January 20, 2019. For the second Promissory Note, your company owes installments of $2,000 which were due on December 20, 2018 and January 20, 2019. In addition, pursuant to Paragraph 6 of the Settlement Agreement, your company is to remain current with the submission of reports and contributions. To date, the Funds have not received the October 2018 through December 2018 reports, contributions and liquidated damages.
Please send a payment of $8,993.31 to my attention, made payable to
If I do not receive your company's payment and reports by then, I will have no choice but to return to court and request that judgment be entered against you personally and the company. It is my sincere hope, however, that this will not be necessary.
If you have any questions regarding the above, please contact me.
