Opinion
10 CV 06909
09-29-2011
CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND et al., Plaintiffs, v. BRETT P. SEIBERT d/b/a Seibert Construction Company, Defendant.
By: Kevin P. McJessy One of their attorneys
Judge Shadur
PLAINTIFFS' MOTION FOR FINAL JUDGMENT
Plaintiffs, the CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND, ET AL. (collectively "Trust Funds"), by their attorney Kevin P. McJessy, hereby move this Court pursuant to Federal Rules of Civil Procedure 54, 55 and 58 to enter a final judgment against BRETT P. SEIBERT d/b/a Seibert Construction Company ("Defendant"). In support of their motion, Plaintiffs state as follows:
Complaint
1. The Trust Funds filed a complaint against the Defendant under ERISA to compel an audit of Defendant's books and records, for collection of unpaid contributions, interest and liquidated damages, for attorneys' fees and auditors' fees pursuant to the collective bargaining agreements and the trust agreements to which Defendant is signatory.
Default Judgment
2. Defendant was served with a copy of the summons and complaint. Defendant has failed to answer or appear.
3. On March 4, 2011, this Court entered a default judgment against Defendant which provided, in part, that:
Pursuant to Federal Rule of Civil Procedure 55, a default order is hereby entered in favor of the Chicago Regional Council of Carpenters Pension Fund et al. ("Trust Funds") and against defendant, BRETT P. SEIBERT, d/b/a Seibert Construction Co., ("Defendant"). Defendant is hereby ordered:A copy of the default judgment is attached hereto as Exhibit A.
A. to provide the Trust Funds or their designated auditors, Legacy Professionals LLC complete access to Defendant's books records within twenty-one (21) days so that the Trust Funds may conduct an audit of Defendant's fringe benefit contributions;
B. to pay any and all amounts the Trust Funds may discover to be due pursuant to the audit;
C. to pay auditor's fees incurred by the Trust Funds to complete the audit of Defendant's books and records;
D. to pay interest on the amount that is due pursuant to 29 U.S.C. § 1132(g)(2)(B);
E. to pay interest or liquidated damages on the amount that is due pursuant to 29 U.S.C. § 1132(g)(2)(C), whichever is greater;
F. to pay reasonable attorneys' fees and costs the Trust Funds incurred in this action pursuant to 29 U.S.C. § 1132(g)(1) and/or § 1132(g)(2)(D) and incurred by the Trust Funds to obtain full compliance with this Order and to collect any amounts owed to the Trust Funds; and
G. to award the Trust Funds such other and further relief as the Court deems just and equitable.
Completion of Audit
4. Defendant was subsequently served with a copy of the order but failed to submit to an audit.
5. Subsequently, a partial production of Defendant's records of account were provided to Legacy Professionals, LLC ("Legacy"), some of which were produced by Defendant and some of which were produced pursuant to subpoena issued by the Trust Funds.
6. Legacy completed an audit of Defendant's books and records based on the information provided to them.
Final Judgment
7. The Trust Funds now move this Court to enter a final judgment. The amount owed by Defendants is $146,057.37, which is comprised of the following:
A. $108,365.60 in unpaid contributions pursuant to the audit; see Decl. of J. Libby, ¶6, Exhibit C; Decl. of M. Ragona, ¶3, Exhibit B;
B. $3,042.00 for auditor's fees incurred by the Trust Funds to complete the audit of Defendants' books and records; see Decl. of J. Libby, ¶6, Exhibit C; Decl. of M. Ragona, ¶2, Exhibit B;
C. $8,460.18 in interest under ERISA on the amount that is due; see 29 U.S.C. § 1132(g)(2)(B); 29 U.S.C. § 1132(g)(2)(C); Decl. of J. Libby, ¶7, Exhibit C;
D. $21,673.12 in liquidated damages; see Decl. of J. Libby, ¶7, Exhibit C; and
E. $4,516.47 in reasonable attorneys' fees and costs the Trust Funds incurred in this action pursuant to 29 U.S.C. § 1132(g)(1) and/or § 1132(g)(2)(D); see McJessy Decl, ¶4, Exhibit D).
8. A proposed draft order is attached as Exhibit E.
WHEREFORE, Plaintiffs the Chicago Regional Council of Carpenters' Fund et al. hereby move this Court to enter judgment in their favor and against Defendant Brett P. Seibert d/b/a Seibert Construction Company in the amount of $146,057.37 as follows:
A. $108,365.60 in unpaid contributions pursuant to the audit;
B. $3,042.00 for auditor's fees of incurred by the Trust Funds to complete the audit of Defendants' books and records;
C. $8,460.18 in interest under ERISA on the amount that is due;
D. $21,673.12 in liquidated damages;
E. $4,516.47 in reasonable attorneys' fees and costs the Trust Funds incurred in this action pursuant to 29 U.S.C. § 1132(g)(1) and/or § 1132(g)(2)(D);
F. reasonable attorney' fees and costs incurred by the Trust Funds in enforcing this order; and
G. such other relief as this Court deems appropriate.
By: Kevin P. McJessy
One of their attorneys
Kevin P. McJessy
MCJESSY, CHING & THOMPSON, LLC
3759 North Ravenswood, Suite 231
Chicago, Illinois 60613
(773) 880-1260
(773) 880-1265 (facsimile)
CERTIFICATE OF SERVICE
I, Kevin P. McJessy, an attorney, certify that I caused the foregoing Plaintiffs' Motion for Final Judgment to be served upon
Brett P. Seibertvia U.S. Mail deposited in the United States Mail Depository at 3759 N. Ravenswood, Chicago, Illinois, postage prepaid, this 29th day of September 2011.
d/b/a Seibert Construction Co.
441 Saunders Rd.
Lake Forest, IL 60045
Kevin P. McJessy