Opinion
Civil Action 23 C 5836
06-21-2024
SMART LOCAL 265 WELFARE FUND, et al., Plaintiffs, v. ANY TIME HEATING & AIR CONDITIONING, INC., an Illinois corporation, Defendant.
Destiny A. Collins Attorney for the Plaintiffs BAUM SIGMAN AUERBACH & NEUMAN, LTD.
Destiny A. Collins Attorney for the Plaintiffs BAUM SIGMAN AUERBACH & NEUMAN, LTD.
PLAINTIFFS' AMENDED MOTION FOR ENTRY OF A FINAL JUDGMENT ORDER AGAINST DEFENDANT
STEVEN C. SEEGER JUDGE
NOW COME Plaintiffs, SMART LOCAL 265 WELFARE FUND, et al., by their attorneys, and move the Court for the entry of a final judgment order against Defendant, Any Time Heating & Air Conditioning, Inc., an Illinois corporation, for the balance due under a Promissory Note entered into between the parties in March 2024, plus additional amounts incurred by Defendant as a result of Defendant's failure to abide by the terms of the Promissory Note, the collective bargaining agreement between the Defendant and SMART Local 265 and the Trust Agreements governing the Funds. In support of the Amended 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 SMART Local 265 Fringe Benefit Funds, alleging, inter alia, that Defendant breached its obligations under the terms of the collective bargaining agreement entered into with SMART 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 October 6, 2023, this Court entered default against Defendant pursuant to FRCP 55(a). On October 16, 2023, this Court entered an order directing Defendant to turn over its monthly fringe benefit contribution reports for the time period August 2023 forward. The Court also entered an order that judgment would be entered after Plaintiffs' received the required contribution reports and determined the amounts due and owing from Defendant.
3. Since the entry of the Court's order on October 16, 2023, up to and including the present date, Plaintiffs' counsel has been working with Defendant to obtain all delinquent fringe benefit contribution reports and obtain payment of all fringe benefit contributions due thereon.
4. On March 22, 2024, Gary Murphy (“Murphy”), in his capacity as an officer of Defendant, Any Time Heating & Air Conditioning, Inc., executed a Promissory Note. (See Affidavit of Katie Eby). Defendant agreed that it owed the total amount of $36,385.08, which represents liquidated damages due for the late payment of fringe benefit contributions for April 2023 through February 2024 plus 20% interest to be paid in six (6) monthly installments of $6,100.00 each (with the last installment being in the amount of $5,885.08) from April 20, 2024 through September 20, 2024 (See Exhibit 2 at p. 2).
5. Plaintiffs agreed that this Promissory Note would become effective on the condition that by April 5, 2024, Defendant and Murphy paid the fringe benefit contributions due for the month of December 2023 which totals $17,330.51, January 2024 which totals $7,256.81, and February 2024 which totals $9,178.26, for a grand total of $33,756.58.
6. On March 1, 2024, Defendant paid the fringe benefit contributions due for the month of December 2023; on May 15, 2024, Defendant paid the fringe benefit contributions due for the months of January and February 2024; on April 19, 2024, Defendant paid the first installment of $6,100; and on May 20, 2024, Defendant paid the second installment of $6,100. Accordingly, there remains $24,185.08 due and owing under the Promissory Note.
7. According to the Promissory Note, in the event of default in the payment of fringe benefit contributions for December 2023 through February 2024, the balance remaining unpaid under the Promissory Note shall become immediately due and payable, without demand or notice. Further, in the event of a default, Defendant and Murphy promised to pay all costs of collection and reasonable attorneys' fees incurred by the Plaintiffs as a result of said default.
8. As of this date, Defendant submitted its May 2024 fringe benefit contribution report but has not remitted payment of the $17,330.51 due and owing (Eby Aff. Para. 4(b)).
9. Defendant and Murphy submitted two (2) installments of $6,100.00 each, leaving a balance due and owing on the Promissory Note of $24,185.08 (Eby Aff. Para. 4(c)).
10. Additionally, due to the late payment of fringe benefit contributions due for March 2024 through April 2024, Defendant has incurred $8,416.55 in liquidated damages (Eby Aff. Para. 5).
11. Plaintiffs' counsel has expended 702.00 in costs and $4,482.50 in attorneys' fees in this litigation. (See Affidavit of Catherine M. Chapman).
12. Based on the documents attached hereto, Plaintiffs request entry of judgment in the total amount of $55,638.98.
WHEREFORE, Plaintiffs respectfully request this Court to enter judgment against Defendant, Any Time Heating & Air Conditioning, Inc., in the amount of $55,638.98.