Opinion
Case No. 07 C 4464.
February 27, 2009
Wesley G. Kennedy, Karen I. Engelhardt, Angie Cowan, Josiah Groff, Allison, Slutsky Kennedy, P.C., Chicago, IL.
Exhibit 1 ORDER TO DISMISSMILTON SHADUR, Senior District Judge
This cause to be heard on the parties' agreed motion for dismissal pursuant to the signing of a Settlement Agreement and Release. The parties shall comply with the terms of the Settlement Agreement and Release dated December 19, 2007 and request that the Court retain jurisdiction to enforce the terms of their Settlement Agreement and Release.
By consent of the parties, the Court shall retain jurisdiction for the purposes of enforcing the Settlement Agreement and Release, which includes retaining jurisdiction for either party to extend time, or for plaintiffs to enter of judgment as described by the Settlement Agreement. Unless otherwise changed, this matter should be dismissed with prejudice on January 31, 2010.
Exhibit 2 SETTLEMENT AGREEMENT AND RELEASEThis Settlement Agreement and Release ("Agreement") is entered into by and between the Laborers' Pension Fund and the Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity, and James S. Jorgensen, Administrator of the Funds (the "Funds"), defendant Alpine Asphalt Paving, Inc., "Alpine Asphalt." The Funds and Alpine Asphalt will be collectively referred to as the "Parties."
Whereas, the Parties agree to fully and finally settle and resolve any and all issues raised in the lawsuit filed before the United States District Court for the Northern District of Illinois, Eastern Division entitled Laborers' Pension Fund et al., v. Alpine Asphalt Paving, Inc., No. 07C-4464 (N.D. Ill) (the "lawsuit").
In consideration of the promises and releases and for good and valuable consideration the parties agree to the following:
1. Alpine Asphalt is responsible for payment of a total amount of $39,049.77, which consists of unpaid contributions owed to the Funds covering an audit report for the period from April 1, 2004 through September 30, 2006, remittance reports for the months of July through October 2007, plus dues owed to the Union, liquidated damage penalties, interest, attorneys' fees and costs, and audit fees.
2. The Funds agree to accept monthly payments for a period of twenty-four months as shown in the attached Installment Note. Alpine Asphalt agrees to pay the first Installment Note payment on January 1, 2008. Installment note payments will be hereinafter referred to as Settlement Payments, and must be remitted each month through December 1, 2009, to the Funds' Administrative Offices at 11465 Cermak Road, Westchester, IL 60154, on the first day of each month.
3. In addition to the Settlement Payments described above and Settlement Payments related to an action entitled Laborers' Pension Fund et al., v. Alpine Asphalt Paving, Inc., 07C 4464 (N.D. Ill.). Alpine Asphalt agrees to report and pay all on going monthly contributions to the Funds as obligated under the terms of the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust. This settlement is conditioned on Alpine Asphalt paying all current contributions to the Funds under the terms of the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust.
4. In the event that the Company fails to maintain its obligations under this Agreement, the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust, including but not limited to its obligations to submit timely contributions reports and to make timely current contribution payments by the tenth day following the month in which laborers' work was performed, Alpine Asphalt shall be deemed in default and the Funds shall have the right to reinstate this action. Upon default, the Funds may declare the entire unpaid amounts, together with interest, immediately due and accelerate collection of the total balance owed (current contribution payments and the unpaid balance on the note). The Funds, on motion in accordance with the Rules of this Court and by Notice of Motion to the Company's attorney, Todd Miller, Allocco Miller, 3409 N. Paulina, Chicago, IL 60657, shall be entitled to entry of judgment by the Court against Alpine Asphalt and against Roger Groanson, in his individual capacity. Judgment will be entered for all unpaid amounts due plus reasonable attorneys' fees incurred by the Funds in their efforts to obtain compliance with this Settlement Agreement.
5. The parties agree that for the purpose of enforcing the Installment Note and Guaranty, upon motion by Funds' counsel, Roger Groanson shall be named as a defendant waiving the filing of an Amended Complaint and service of Summons. Neither Alpine Asphalt nor Roger Groanson will be permitted to raise defenses to bar judgment of the unpaid balance plus reasonable attorneys' fees and costs for time expended to collect settlement payments. Alpine Asphalt and Roger Groanson agree, in the event of a default, to confess entry of judgment.
6. In consideration of the receipt of all payments and promises made by the Parties herein, and after receipt of all amounts in the Settlement Agreement and Release, plus interest, the Funds hereby release and discharge Alpine Asphalt and Roger Groanson and each of their affiliates, parents, subsidiaries, divisions, partners, owners, stockholders, directors, officers, employees, agents, representatives, and their predecessors, successors, heirs, executors, administrators and assigns, all past, present and future owners, members, agents, attorneys, representatives, trustees, administrators, fiduciaries, and insurers, and all persons acting by, through or under any of them jointly and severally, in their individual, fiduciary and corporate capacities, or any of them, of and from any and all actions, causes of action, grievances, suits, complaints or claims, liquidated or unliquidated, absolute or contingent, in law or in equity, arising out of, or in any way related to the amounts owed as described in paragraph 1, above.
7. This Agreement is entered into solely for the purpose of settling disputed claims and shall not be construed as an admission by the Defendant of any (a) liability or wrongdoing; (b) violation of any statute, law regulation, collective bargaining agreement or declaration of trust; or (c) waiver of defenses as to those matters within the scope of this Agreement. It is understood that Defendant denies engaging in unlawful conduct, and this Agreement does not constitute an admission by Defendant of any violation of any law, regulation, collective bargaining agreement or declaration of trust.
8. This Agreement, the Installment Note and Guaranty constitute the entire Agreement between the Parties concerning the subject matter hereof and supersede all prior and contemporaneous oral and written agreements, if any, between the Parties relating to the subject matter hereof. This Agreement may be amended only by a written document signed by the authorized Parties.
9. Each of the undersigned has read this Settlement Agreement and Release, understands its contents, has had the opportunity to and did negotiate over the terms of this Agreement, and is authorized to sign same on behalf of the entity indicated below. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. This Agreement shall be governed and construed in accordance with the laws of the State of Illinois.
10. This document may be signed in separate counterparts which will have the same effect as if signed on one document. In the event that any of the provisions of this Agreement are found by a judicial or other tribunal to be unenforceable, the remaining provisions of this Agreement will remain enforceable.
11. The Parties agres that this Settlement Agreement and Release represents a resolution of the Lawsuit allowing the Court to keep jurisdiction through the entire term of the payment plan. The Parties agree that the United States District Court for the Northern District of Illinois, Eastern Division in case No. 07 C 4464, has jurisdiction to enforce this settlement agreement. The parties further agree that this cause is dismissed, without prejudice, permitting the parties' leave to reinstate to extend time or to seek entry of judgment. Unless otherwise ordered or agreed, on January 30, 2010, this cause shall be dismissed, with prejudice.
LABORERS' PENSION FUND and, LABORERS' WELFARE TRUST FUND, OF THE HEALTH AND WELFARE, DEPARTMENT OF THE CONSTRUCTION, AND GENERAL LABORERS' DISTRICT, COUNCIL OF CHICAGO AND VICINITY, and, JAMES S. JORGENSEN, Administrator of the, Funds, ALPINE ASPHALT PAVING, INC.
PLAINTIFFS' SECOND MOTION TO REINSTATE AND FOR DAMAGES CONSISTENT WITH THE PARTIES' SETTLEMENT AGREEMENT
Plaintiffs, the Laborers Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Laborers' Funds"), request that this Court reinstate this cause, add Roger Groanson as a defendant, and enter judgment in a sum certain against defendants Alpine Asphalt Paving, Inc. ("Alpine") and Groanson in the total amount of $18,632.90. In support of this motion, plaintiffs state as follows:
1. On August 8, 2007, this cause of action was filed under the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. §§ 1143 and 1132(g)(2) and under the Labor management Relations Act ("LMRA"), as amended, 29 U.S.C. § 185(a) seeking unpaid contributions owed to the Laborers' Funds. On December 19, 2007, this Court dismissed this cause retaining jurisdiction to enter judgment under the Settlement Agreement. A copy of the Order to Dismiss is attached as Exhibit 1.
2. On December 18, 2007, Alpine, by its President Roger Groanson, signed a Settlement Agreement and Release permitting the plaintiffs to reinstate this cause if necessary in the event of default. The Settlement Agreement and Release, attached here to as Exhibit 2, provides that upon default, the Funds may "declare the entire unpaid amounts due and accelerate collection of the total balance owed" (Exhibit 2 ¶ 4). It further provides that on motion and notice of motion to the Company's attorney, Todd Miller, the plaintiffs shall be entitled to entry of judgment (Exhibit 2 ¶ 4). Notice of plaintiffs' motion has been served to defendant's counsel, Todd Miller.
3. The parties also agreed that, upon default, Roger Groanson shall be named as a defendant in the lawsuit, agreeing to waive filing of an amended complaint and service of summons. In addition, neither Alpine nor Roger Groanson are permitted to raise defenses in opposition to plaintiffs' motion (Exhibit 1, ¶¶ 4, 5).
4. There is no question that Alpine Asphalt is in default on the note. the Installment Note in paragraph 10 states:
On August 20, 2008, plaintiffs filed a substantially similar motion to this motion [Docket No. 22], which is the basis for designating this motion as plaintiffs' Second Motion to Reinstate and for Damages Consistent with the Parties' Settlement Agreement. The motion filed August 20, 2008 was withdrawn on August 22 on plaintiffs' oral motion [Docket No. 24].
In the event that the Company fails to maintain its obligations under the terms of the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust, including, but not limited to, its obligations to submit timely contribution reports and to make timely contribution payments by the tenth day following the month in which laborers' work was performed, then the Funds shall have the right to accelerate and collect all amounts due under this Installment Note, plus payment of attorneys' fees and costs incurred by the Funds in any action to accelerate this Installment Note.
(Installment Note, Exhibit 2 ¶ 10). Rocco Marcello, the Funds' Field Representative assigned to collect contributions owed by Alpine, establishes that Alpine Asphalt has not paid contributions for ongoing work since October 2007 (Marcello Affidavit, Exhibit 3, ¶ 4). Mr. Marcello's affidavit further establishes that the current balance owed under the Installment Note is $14,305.20 (Marcello Affidavit, Exhibit 3, ¶ 5).
5. In addition, because of the delinquent note payments, liquidated damages and interest are due as shown by Mr. Marcello's affidavit, and as established by the Installment Note (Exhibit 2, ¶ 9). The amount of $2,002.70 is due in penalties for the failure to submit timely note payments (Exhibit 3, ¶ 6).
6. The Settlement Agreement in paragraph 5 provides that attorneys' fees will be included in a judgment for the Funds' efforts to obtain compliance with this Settlement Agreement. Reasonable attorneys' fees are established by an affidavit of Wesley Kennedy, plaintiffs' counsel, in the total amount of $2,325.00 (Affidavit of Wesley Kennedy, attached hereto as Exhibit 4).
Wherefore, plaintiffs request the entry of a judgment order for a total judgment against Alpine Asphalt Paving, Inc. and Roger Groanson in the amount of $18,632.90, and ordering Alpine Asphalt Paving, Inc. to pay current contributions and obtain and maintain a surety bond.
This installment Note ("Note") is made between the Laborers' Pension Fund ("Pension Fund") and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity ("Health and Welfare Fund" or collectively the "Funds"), the parties of the first part, and Alpine Asphalt Paving, Inc. (the "Company"), the party of the second part.
WHEREAS, the Company has at all relevant times been party to a collective bargaining agreement ("CBA") with Local 5 the Construction and General Laborers' District Council of Chicago and Vicinity, whereunder it is obligated to make certain contributions to the above-named Funds, as well as to the Training Fund, on behalf of its covered employees, and to submit payment of all employee union dues:
WHEREAS, the Company has failed to timely pay certain contributions owed to the Funds for the audit period of April 1. 2004 thru September 30, 2006 plus June 2007 thru October 2007 remittance reports.
WHEREAS, the Company has failed to remit all employee union dues to the Funds, as the designated collection agent for the Construction and General Laborers' District Council of Chicago and Vicinity, for the audit period of April 1, 2004 thru September 30, 2006 plus June 2007 thru October 2007 remittance reports.
WHEREAS, the Company desires to pay all delinquencies owed to the Funds, to pay all union dues owed to the Construction and General Laborers' District Council of Chicago and Vicinity, together with liquidated damages, and interest, as set forth below and further desires to remain current in its obligation to pay contributions to the Funds.
THE PARTIES HEREBY AGREE as follows:
1. The Company will pay $21,502.03 to the Health and Welfare Fund (comprised of $13,371.64 in delinquent contributions, $5,369.44 in liquidated damages, $505,00 in attorneys fees and costs, $340.00 in audit costs and $1,915.95 in interest) (based on an interest rate of 9.5%). The Company will also pay $15,237.07 to the Pension Fund (comprised of $9,502.36 in delinquent contributions, $3,586.17 in liquidated damages, $505.00 in attorneys fees and costs, $340.00 in audit costs and $1,303.54 in interest). All of these amounts shall be paid according to the schedule described below in paragraphs 5 and 6.
2. The Company will also pay $447,24 to the Training Fund (comprised of $367.65 in delinquent contributions, $72.74 in liquidated damages and $6.85 in interest), $150.59 to the ISPA Fund (comprised of $134.53 in delinquent contributions, $13.45 in liquidated damages and $2.61 in interest), $94.13 to the LECET Fund (comprised of $84.11 in delinquent contributions, $8.41 in liquidated damages and $1.61 in interest), $225.90 to the LDCMC Fund (comprised of $201.78 in delinquent contributions, $20.18 in liquidated damages and $3.94 in interest) and $1,392.81 in union dues (comprised of $1,126.59 in delinquent contributions and $266,22 in liquidated damages). These delinquent amounts shall be paid in their entirety at the time payment under this Note commences, in accordance with the schedule described in paragraph 6.
3. The Company will also pay the Funds or the sum of $1,010.00 representing attorney fees and costs incurred by the Funds in Case No. 07 C 4464. This amount is split equally between Welfare and Pension as described in paragraph 1 above.
4. The company will also pay the Funds the sum of $680.00 in audit costs. This amount split equally between Welfare and Pension as described in paragraph 1 above.
5. Simultaneously with the execution of this Note, the Company will pay $2,406.62 of the total outstanding indebtedness, excluding note interest and the delinquent amounts described above in paragraph 2, or $1,203.31 to the Health and Welfare Fund and $1,203.31 to the Pension Fund.
6. For twenty-four (24) consecutive months commencing on January 1, 2008 and ending on December 1, 2009, the Company will pay $845.78 per month to the Health and Welfare Fund and $584.74 per month to the Pension Fund.
7. The Company will remit all payments to the Funds' Administrative Offices, which are located at 11465 Cermak Road, Westchester, Illinois 60154.
8. The Company understands and agrees that this Installment Note is based on reports submitted by the Company to the Funds and that the Funds reserve the right to conduct an audit, in accordance with the terms of the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust, to determine benefit contribution compliance for the time period covered herein and further reserve the right to collect any unpaid contributions, union dues, interest, liquidated damages, and audit costs as shown on said audit.
9. Payments made pursuant to this Installment Note shall be considered "contributions" as defined under the terms of the CBA and the Fund's respective Agreements and Declarations of Trust. If the contributions are not paid by the 10th day following the date on which payment should have been received, the contribution shall be considered delinquent and all charges which apply to the late payment of contributions under the terms of the CBA and the Fund's respective agreements and Declarations of Trust shall apply, including, but not limited to, the assessment of interest and liquidated damages. Further, in the event the Company fails to timely make any payments described in this Note. All amounts described in paragraph 1 herein shall immediately become due on the 10th day following the date on which payment should have been received by the Fund's under the terms of this Note. In such event the Company further agrees to pay all attorney fees and costs incurred by the Funds in any action to enforce any part or all of this note.
10. This Installment Note is conditioned on the Company's staying current on its obligations to the Funds under the terms of the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust. In the event that the Company fails to maintain its obligations under the terms of the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust, including, but no limited to, its obligations to submit timely contribution reports and to make timely contribution payments by the tenth day following the month in which laborers' work was performed, then the Funds shall have the right to accelerate and collect all amounts due under this Installment Note, plus payment of all attorneys' fees and costs incurred by the Funds in any action to accelerate this Installment Note.
11. The Company further agrees to obtain and maintain a surety bond to insure the payment of wages and benefit contributions as required under the terms of the CBA.
12. The Company shall have the right to prepay the entire amount due under the Note prior to the date upon which payment is due without penalty and without payment of any precalculated Note interest that has not accrued as of the date full payment has been made.
The Parties hereby agree to these terms by their execution hereof on the ______ day of the ________, 2007.
Alpine Asphalt Paving, Inc. ________________________________________
By: ____________________________________
Title: ___________________________________
Laborers' Pension Fund
By: ____________________________________
Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity.
By: ____________________________________
Exhibit
Exhibit 3 AFFIDAVIT OF ROCCO MARCELLO
MILTON SHADUR, Senior District Judge
Rocco Marcello, being first duly sworn on oath, deposes and states as follows:
1. I am a Field Representative employed by the Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Laborers' Funds"), the plaintiffs in the above referenced action. My responsibilities include oversight of the collection of amounts owed by Alpine Asphalt Paving, Inc., ("Alpine Asphalt"). This affidavit is submitted in support of the Laborers' Funds' motion for reinstatement based on Alpine Asphalt's default in payment obligations under an Installment Note.
2. Alpine Asphalt has been a signatory employer since September 2, 2003, as reflected by the Funds' records and is shown by the date on the signed collective bargaining agreement which is attached to the Complaint as Exhibit A.
3. Since January 2008, Alpine Asphalt was obligated under the Settlement Agreement and Release and the Installment Note to submit note payments to the Funds each month.
4. Since October 2007, the Laborers' Funds have not received payment for ongoing contributions.
5. The Installment Note attached to the Settlement Agreement provides for a payment plan covering delinquent contributions for audit period from April 1, 2004 through September 30, 2006 and for the period from June 2007 through October 2007. The total amount owed under the Installment Note was $39,049.77. To date, the Funds have received the amount of $24,744.57, so a balance of $14,305.20 remains owed to the Funds.
6. In addition, penalties are owed in the amount of $2,002.70, for the failure to make timely note payments for the months of January, March, April, May, June, August and October 2008.
7. The Funds do not waive their right to conduct an audit for time periods which are discussed above and such audit will be sought in accordance with the Funds' regular audit schedule.
FURTHER AFFIANT SAYETH NOT.
Exhibit 4 AFFIDAVIT OF WESLEY KENNEDY
MILTON SHADUR, Senior District Judge
Wesley Kennedy, being first duly sworn on oath, deposes and states as follows:
1. I am an attorney and a shareholder at the law firm of Allison, Slutsky Kennedy, P.C., counsel for plaintiffs Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Laborers' Funds") in the action against Alpine Asphalt Paving, Inc. This affidavit is submitted to document attorneys' fees and costs incurred by the Laborers' Funds for work performed in connection with obtaining contributions owed for the period from May 27, 2008 through August 18, 2008.
2. This firm bills the Laborers' Funds on an hourly basis for ERISA collections legal services rendered to the Funds, at a rate of $175.00 per hour for shareholders, $150.00 per hour for associates, and $75.00 per hour for clerks/paralegals. In this cause, records for legal work on this matter were kept contemporaneously and are attached hereto as Exhibit A.
3. Exhibit A hereto sets forth the time expended by the firm's attorneys and paralegals in their attempt to collect amounts owed as established by the Settlement Agreement in this matter. As set forth in that Exhibit, the Laborers' Funds have incurred legal fees to my firm in this matter in the amount of $2,325.00 for the period of May 27 through February 25, 2009.
FURTHER AFFIANT SAYETH NOT.