MOTION FOR JUDGMENT IN SUM CERTAIN AGAINST DEFENDANT JOHN DIFOGGIO

CHARLES P. KOCORAS, District Judge.

Plaintiffs, the PLUMBERS' PENSION FUND, LOCAL 130, U.A. et. el., (hereafter "Plaintiffs") by and through their attorneys Michael J. McGuire and Gregorio & Marco, Ltd. hereby move this Honorable Court to Enter a Judgment in a Sum Certain against Defendant JOHN DIFOGGIO, (hereafter "DiFoggio"). In support of their Motion, Plaintiffs state as follows:

WHEREFORE, Plaintiffs seek a Judgment against Defendant, JOHN DIFOGGIO in the aggregate sum of $88,234.96, and the Plaintiffs be awarded any other relief this Court deems just.

EXHIBIT A

ORDER

Before the Court is Plaintiffs' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons, the Court grants the motion.

STATEMENT

This action arises out of Plaintiffs' claim for unpaid fringe benefit contributions under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132. On March 19, 2019, Plaintiffs filed a second amended complaint against Defendants U.S. Plumbing & Sewer, Inc. ("U.S. Plumbing") and John DiFoggio ("DiFoggio") (collectively, "Defendants"). Count I is an ERISA claim against U.S. Plumbing. Count II is an ERISA claim against DiFoggio individually, as he is an employer who agreed to pay U.S. Plumbing's fringe benefits to the Local 130 Trust Funds in the event of U.S. Plumbing's failure to do so. Count III is a breach of contract claim against DiFoggio based on his status as a guarantor in a settlement agreement between Plaintiffs and U.S. Plumbing.

On August 28, 2019, Plaintiffs filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) as to Counts II and III against DiFoggio. "A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is governed by the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Adams v. City of Indianapolis, 742 F.3d 720, 727-28 (7th Cir. 2014). However, in evaluating a motion for judgment on the pleadings, the Court may consider "the complaint, the answer, and any written instruments attached as exhibits." N. Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998).

Plaintiffs assert that judgment on the pleadings is appropriate as to Counts II and III because DiFoggio has admitted to the necessary elements in his answer. Based on our review of the pleadings, the Court agrees. Moreover, Defendants have noted that they do not oppose the motion for judgment on the pleadings as to Counts II and III. Accordingly, the Court grants Plaintiffs' motion.

CONCLUSION

For the aforementioned reasons, the Court grants Plaintiffs' motion. It is so ordered.

EXHIBIT B

EXHIBIT C

DECLARATION OF ANTHONY ROTTMAN PURSUANT TO 28 U.S.C. § 1746

I, Anthony Rottman, in support of the Motion for Judgment in Sum Certain state as follows:

1. At all times relevant to this action, I was employed by the Plumbers Local 130, U.A. Fringe Benefit Funds (the "Funds") as a Field Representative and Delinquency Coordinator. As the Field Representative and Delinquency Coordinator, I am responsible for monitoring when contributions are delinquent to the Fund and coordinating the Funds' collection program. I maintain and/or have under my direction or supervision all books, records, documents, and papers relating to the Plaintiff Funds.

2. I have read the Second Amended Complaint, Plaintiffs Motion for Judgment on the Pleadings, and this Court's Order of October 25, 2019 filed in this action and have personal knowledge of all facts alleged therein and could so testify if called to do so.

4. At all times relevant to this action, the Defendant, John DiFoggio was bound to the personal guaranty contained in the Partial Settlement Agreement attached as Exhibit D to this motion and the and the Personal Guarantee as an Employer under ERISA.

5. By its terms, the agreement between John DiFoggio and the Plaintiff Union adopted the Agreements and Declaration of Trust governing the Plaintiff Funds and required the Defendant John DiFoggio to make fringe benefit contributions in accordance therewith.

6. Pursuant to the provisions of the Trust Agreements and CBA, the Defendant, John DiFoggio is required to submit monthly reports to the Plaintiff Funds which list the number of hours worked by the Defendant's bargaining unit employees and to pay contributions based thereon.

7. The Defendant, John DiFoggio breached the provisions of the Agreement by failing to submit contributions to the Plaintiff Funds. Specifically, the Defendant breached the provisions of the Agreement by failing to submit fringe benefit contributions to the Plaintiff Funds for the time period of December 2018, January 2019, and February 2019 as revealed by reports in the amount of $99,150.66.

8. The Defendant, John DiFoggio, breached the provisions contained in the contract entitled Partial Settlement Agreement and Payment Plan and the personal guaranty. Specifically, the Defendant failed to pay any amounts owed personally under the contract in the amount of $39,156.63 after the Defendant U.S. Plumbing & Sewer, Inc. breached the contract and was defaulted.

9. Through the date of this Declaration, Defendant, John DiFoggio has not remitted any payments on the amounts stated in ¶'s 7 and 8 of this declaration.

10. Plaintiffs, through third party collection efforts including surety bond claims and mechanics' liens have recovered $74,860.08 which has been applied to the delinquency of the Defendant. Defendant currently owes a balance of $63,447.21 to the Plaintiffs in unpaid fringe benefit contributions.

11. The Defendant is obligated to pay liquidated damages in the amount of eight percent and interest at the rate of three percent plus prime pursuant to the Collective Bargaining Agreement.

To date, the Trust Fund has incurred liquidated damages in the amount of $7,932.05 and $11,980.70 in interest.

I declare under penalty of perjury that the foregoing is true and correct.

EXHIBIT D

PARTIAL SETTLEMENT AGREEMENT & PAYMENT PLAN

THIS PARTIAL SETTLEMENT AGREEMENT & RELEASE ("Agreement") is made and entered into this 7th day of December, 2018, between the Numbers' Pension Fund, Local 130, U.A., Plumbers' Welfare Fund, Local 130, U.A., the Trust Fund for Apprentice and Journeyman Education and Training, Local 130, U.A., Plumbers' Retirement Savings Fund, Local 130 U.A., and Chicago Journeymen Plumbers' Local Union 130, U.A., Group Legal Services Plan Fund, (collectively "Trust Funds"), U.S. Plumbing & Sewer, Inc. ("US Plumbing") and John Difoggio;

RECITALS

WHEREAS, US Plumbing has been signatory to, and bound by, a Collective Bargaining Agreement ("CEA") with the Chicago Journeymen Plumbers' Local Union 130, U.A. ("Union");

WHEREAS, a dispute arose between the Trust Funds and US Plumbing regarding fringe benefit compliance audit, audit number P130-1116-5524, for the time period of October 1, 2013 through March 31, 2015; and

WHEREAS, the parties are currently in litigation involving all findings in the audit, and the Trust Funds have filed a lawsuit in the United States District Court, Northern District of Illinois, Case Number 2018 CV 5277.

WHEREAS, the parties wish to partially resolve some claims raised in the currently pending litigation;

THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE FOLLOWING IS AGREED:

1. Recitals. The representations above are hereby made a part of this agreement and are not mere recitals.

2. Partial Settlement & Release. The Parties fully acknowledge that this agreement is a partial settlement and release resenting certain claims raised by the Trust Funds in the currently pending litigation and audit. This agreement does not release the remaining claims raised by the Trust Funds or defenses raised by US Plumbing outside of this agreement.

2. Payment. US Plumbing shall pay the Trust Funds the total sum of thirty-nine thousand one hundred fifty-six dollars and 63/100 cents ($39,156.63) "total amount due." The total amount due represents all findings, contributions, interest, and liquidated damages, contained in the audit, audit number P130-1116-5524, for the time period of October 1, 2013 through Match 31, 2018 for specific audit findings related to Richard Martin, Frank Clements, Jeffrey Lennon, David Whiteside, Jeffrey Hack, Michael Goddard, Mark Siggeman, Michael Dunkovich, Michael Leuzzi, Richard Rerych, John Difoggio, Curt Del Boccio, Daniel Tiberi, Kevin Walsh, Jay Rodak, Thomas Zboncak, and Reuben Gonzalez. US Plumbing shall pay the total amount due in three (3) equal installments. Each payment shall be in the amount of $13,052.21. The first payment shall be made on or by January 15, 2019. All subsequent payments shall be due on the fifteenth day of the following month. All payments shall be made payable to the Plumbers' Local 130 Payment Plan Account and mailed to directly to the Plumbers' Local 130 Payment Plan Account, PO Box 94486, Chicago, IL, 60690.

3. Release. In consideration for the above payments, the Trust Funds, for themselves, their trustees, participants, beneficiaries, agents, assigns, representatives, attorneys and employees, release and forever & scheme John Diffogio and US Plumbing and its owners, officers, directors, shareholders, successes, assigns, agents, representatives, attorneys, affiliates and employees from any and all claims related to the specific findings contained in the audit, audit number P130-1116-5524, for the time period of October 1, 2013 through March 31, 2018 for specific audit findings related to Richard Martin, Frank Clements, Jeffrey Lennon, David Whiteside, Jeffrey Hack. Michael Goddard, Mark Siggeman, Michael Dunkovich, Michael Leuzzi, Richard Rerych, John Difoggio, Curt Del Boccio, Daniel Tiberi, Kevin Walsh, Jay Rodak, Thomas Zboncak, and Reuben Gonzalez only.

4. Trust Funds Right to Pursue other findings in the Audit. Nothing in this agreement or release shall stop or preclude the Trust Funds from pursuing its claims raised in the lawsuit and current litigation for audit findings related to Joseph Turner or David Cozzi. This agreement does not release any claims or potential claims the Trust Funds have against US Plumbing related to fringe benefit contributions and ancillary damages related to the employment of Joseph Turner or David Cozzi. This agreement does not preclude US Plumbing from raising any defense it has or will have related to the audit and findings for Joseph Turner or David Cozzi.

5. Default. If US Plumbing misses or is late on a payment referenced in Paragraph 2 the Trust Funds will give written notice of the delinquency to US Plumbing with an opportunity to cure the delinquency. US Plumbing will have seven days (7) days to cure the delinquency after written notice. In the event US Plumbing fails to cure the delinquency within the cure period or if US Plumbing is subject to any bankruptcy or insolvency proceedings; or dissolves or is in default of a payment or any installment hereof (the occurrence of any of the foregoing events hereinafter to be called an "event of default"), then the Trust Funds, without notice to the undersigned, or to any of them may declare the entire balance due, and pursue any of its legal rights and remedies both in law and equity. In the event of default, interest shall accrue on the unpaid balance at the rate of 7.5% per annum compounded monthly as set forth in the Trust Agreements, and US Plumbing shall also be liable for the Trust Fund's attorneys' fees and costs associated with enforcing this agreement.

6. Current Reports. US Plumbing agrees to stay current on its tinge benefit reporting obligations the terms of this Agreement. In the event that US Plumbing is not current on its fringe benefit reporting obligations the Trust Funds may declare US Plumbing in default of this agreement pursuant to Paragraph 4.

7. Early Payment. There shall be no penalty assessed against US Plumbing for early payment of the total amount due. US Plumbing may at its discretion pay the current balance of this Agreement shown to be due without incurring unearned interest on the total amount due.

8. Personal Liability. The undersigned individual, John Difoggio, for US Plumbing, shall be personally liable, individually and/or jointly, for all amounts owed in the event that US Plumbing is in default. John Difoggio hereby agrees and authorizes any attorney for the Trust Funds to appear for the Trust Funds at any time after default in the payment of any installment of the principal hereof; and confess judgment without process in favor of the Trust Funds for any amount that remains unpaid under this Agreement along with reasonable costs of collection including reasonable attorney's fees, and to consent to immediate execution of judgment

9. Entire Agreement. This Settlement Agreement constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous agreements, if any, between the parties relating to the subject matter hereof. In the event that any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall not be affected.

10. Execution of the Document. Each of the undersigned has read this Settlement Agreement understands its contents, and is authorized to sign on behalf of the entities listed below. This document may be signed in separate counterparts which will have the same effect as if signed on one document. Photocopied or facsimile copied signatures shall have the same effect as the original signatures.

IN WITNESS WHEREOF, the parties have caused this instrument to be properly executed as of the date first written above.

EXHIBIT E

DECLARATION PURSUANT TO 28 U.S.C. § 1746

I, Michael J. McGuire, in support of the Motion for Judgment in a Sum Certain states as follows:

1. I am an attorney who was retained by the Plaintiffs and its associated fringe benefit funds. I am licensed to practice law in the State of Illinois and in the Northern District of Illinois.

2. I have personal knowledge of the facts stated herein and if called to testify in this matter, I can competently testify to such facts from my own such knowledge.

3. I have in excess of 12 years' experience representing trust funds in Federal Court litigation to collect delinquent contributions pursuant to ERISA.

4. I have devoted eighteen and three fourths (18.75) hours in connection with the Motion for Judgment on the Pleadings, related hearings, and the Motion for Judgment in Sum Certain at the rate of $260.00 per hour totaling $4,875.00.

5. I certify that the foregoing attorney's fees totaling $4,875.00 were necessary and reasonable.

I declare under penalty of perjury that the foregoing is true and correct.