Opinion
23 C 4963
11-14-2024
CHICAGO & VICINITY LABORERS' DISTRICT COUNCIL PENSION FUND, CHICAGO & VICINITY LABORERS' DISTRICT COUNCIL WELFARE FUND, CHICAGO & VICINITY LABORERS' DISTRICT COUNCIL RETIREE HEALTH AND WELFARE FUND, and CATHERINE WENSKUS, not individually but as Administrator of the Funds, Plaintiffs, v. AVERY & PRYOR CONSTRUCTION LLC, Defendant.
MOTION FOR ENTRY OF JUDGMENT IN SUM CERTAIN
KOCORAS JUDGE
Now come Plaintiffs Chicago & Vicinity Laborers' District Council Pension Fund, Chicago & Vicinity Laborers' District Council Welfare Fund, Chicago & Vicinity Laborers; District Council Retiree Health and Welfare Fund, and Catherine Wenskus (collectively referred to hereinafter as the “Funds”), by and through their attorney, Amy Carollo, and hereby move this Court for the entry of judgment in sum certain against Defendant Avery & Pryor Construction LLC (hereinafter “Avery & Pryor” or the “Company”). In support of this Motion, Plaintiffs state as follows:
1. The Funds filed their Complaint on July 28, 2023, seeking to compel the Company to submit its books and records to an audit for the period of December 1, 2020 through May 30, 2021 and to collect all amounts found due and owing pursuant to that audit.
2. The Court entered an order of default against the Company on November 7, 2023.
3. The audit was completed. Based on challenges and a signed Affidavit and Agreement of Indemnification, the audit was revised to reflect that no benefit contributions or dues were owed. However, since the Funds filed the lawsuit, the Company is liable for the Audit costs. See Declaration of Rocco Marcello ¶¶ 5 and 8, attached as Exhibit A.
4. Pursuant to Section 502(g)(2) of the Employees Retirement Income Security Act (“ERISA”), as amended, 29 U.S.C. § 1132(g)(2), Section 301 of the Labor Management Relations Act (“LMRA”), as amended, 29 U.S.C. § 185, Plaintiffs are entitled to judgment in their favor and against Avery & Pryor Construction LLC in the amount of $8,777.50 as follows:
(a) $1,746.00 in audit costs on the audit for the period of December 1, 2020 through May 31, 2021. See Exhibit A, ¶ 8.
(b) $7,031.50 in attorney's fees and costs expended to date in this matter. See Declaration of Amy Carollo, attached hereto as Exhibit B.
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and against Defendant Avery & Pryor Construction LLC in the amount of $8,777.50 representing $1,746.00 in audit costs due on the audit of the Company's books and records for the period of December 1, 2020 to May 31, 2021 and $7,031.50 in attorney's fees and costs expended to date in this matter. Plaintiffs further respectfully request that this Court order the Defendant pay all post-judgment interest on the judgment amount from the date of judgment until judgment is paid in full.
CERTIFICATE OF SERVICE
The undersigned attorney of record certifies that she caused a copy of the foregoing Plaintiffs' Motion for Entry of Judgment in Sum Certain to be served upon the following person via U.S. First Class Mail, postage prepaid, and email on this 14th day of November 2024.
John N. Bielski II
Bielski Chapman Dr.
123 N. Wacker Drive, Suite 2300
Chicago, IL 60606
bielski@bc-lawyers.com
DECLARATION OF ROCCO MARCELLO
I, ROCCO MARCELLO, declare under the penalty of perjury that the foregoing is true and accurate:
1. I am a Field Representative employed by the Chicago & Vicinity Laborers' District Council Pension Fund, the Chicago & Vicinity Laborers' District Council Welfare Fund, and the Chicago & Vicinity Laborers' District Council Retiree Health and Welfare Fund (collectively referred to as the “Funds”). My responsibilities include oversight of the collection of amounts owed by Avery & Pryor Construction LLC (“Avery & Pryor” or the “Company”), who was signatory to a collective bargaining agreement with the Construction and General Laborers' District Council of Chicago and Vicinity (“Union”) through and including May 30, 2021. This Declaration is submitted in support of the Funds' Motion for Entry of Judgment in Sum Certain. I have personal knowledge regarding the statements contained herein and am competent to testify to the matters stated.
2. The Company and the Union have been parties to a series of collective bargaining agreements, the most recent of which became effective on June 1, 2017. See Exhibit A-l. Pursuant to the terms of the Agreement, the Company is bound to the terms of the relevant collective bargaining agreement incorporated by reference in the Agreement and the Funds' respective Agreements and Declarations of Trust for the audit period of December 1, 2020 through May 30, 2021.
3. I am familiar with the collective bargaining agreements effective during the period December 1, 2020 through May 30, 2021. I am familiar with the terms of these collective bargaining agreements as they relate to the submission of Fringe Benefit Reports and payment of the applicable contributions to the Pension, Welfare, Retiree Health and Welfare and Training Funds. I am familiar with the Funds' Auditing Policies as they relate to the submission of a company's books and records and payment of the amounts found due and owing. Finally, I am also familiar with the terms of Funds' Collection Policy as it relates to collection of past due fringe benefit and union dues contributions and referral of matters to legal counsel for collection of delinquent benefits/dues or to compel an audit.
4. My collection duties with respect to the Company include monitoring and collecting the Company's submission and payment of monthly fringe benefit reports, tracking the accumulated liquidated damages assessed against late paid fringe benefit reports, preparation of interest calculations on late paid fringe benefit reports, preparation of summary reports of amounts due from the contributing employers, supervision of the Company's audits and collection of any amounts found due and owing on those audits, and referral of matters to the Funds' attorneys for collection of contributions/dues owed or to compel an audit. These tasks are performed by me and my associates through the use of the Funds' V3 computer accounting program.
5. The Agreement and the Funds' respective Agreements and Declarations of Trust to which the Company is bound require that the Company submit its books and records to an audit. If the Company fails to submit its books and records to an audit and the matter is referred to legal counsel to compel that audit, the Company is liable for any amounts owed on the audit, plus the audit costs and the Funds' attorneys' fees and costs. A copy of the Agreement is attached as Exhibit A-2; a copy of the Amended Agreement and Declaration of Trust creating the Laborers' Pension Fund is attached as Exhibit A-3; a copy of the Amended Health and Welfare Department of the Construction and General Laborers' District Council is attached as Exhibit A-4, a copy of the Agreement and Declaration of Trust Establishing the Chicago Laborers' District Council Retiree Health and Welfare Fund is attached as Exhibit B-5 and a copy of the Agreement and Declaration of Trust Establishing the Construction and General Laborers' District Council of Chicago and Vicinity Training Trust Fund is attached as Exhibit A-6.
6. The Agreement and the Funds' respective Agreements and Declarations of Trust to which the Company is bound require that the Company submit benefit reports and contribution payments by the tenth day of the following month. Payments which are not received within thirty days of this date are assessed liquidated damages in the amount of up to 20 percent of the principal amount of delinquent contributions. See Exhibits A-2 through A-6.
7. The Company failed to submit its books and records to an audit as required by the Funds. This matter was referred to legal counsel to file a lawsuit to compel the Company to submit its books and records for that audit.
8. After the lawsuit was filed, the Company submitted its books and records for an audit for the period of December 1, 2020 through May 30, 2021. The audit was later revised pursuant to Company provided challenges and a signed Affidavit and Agreement of Indemnification; the revised audit reflected that no contributions and dues were owed. The Company owes $1,746.00 in audit costs. A copy of the audit is attached as Exhibit A-7. My spreadsheet detailing the amounts owed on the audit is attached as Exhibit A-8.
(Image Omitted)