Opinion
No. 08 C 1015.
March 10, 2009
TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS, s/John J. Toomey, ARNOLD AND KADJAN, Chicago, IL.
MOTION FOR JUDGMENT IN SUM CERTAIN
NOW COMES the Plaintiff, TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUND, by and through its attorney, JOHN J. TOOMEY, ARNOLD AND KADJAN, and pursuant to FRCP 55 move for entry of a default judgment in sum certain as stated in this Complaint and the supporting Affidavits attached hereto. In support of its Motion, Plaintiffs state as follows:
1. Suit was filed on February 19, 2008 for collection of delinquent contributions, attorneys' fees, costs and interest under 29 U.S.C. 1132(g)(2).
2. Corporate service was made upon FLEET LINE TRUCKING, INCORPORATED, an Illinois corporation on February 26, 2008 and a copy of the proof of service was filed with the court on March 24, 2008.
3. Service was made upon DONNELL LANGSTON, Individually on February 26, 2008 and a copy of the proof of service was filed with the court on March 24, 2008.
4. On April 14, 2008, DONNELL LANGSTON, Individually and as President of Fleet Line Trucking, Inc. entered into a Pension Fund installment note for $6,164.76 (Exhibit A). Six installment note payments have made through November 15, 2008. There remains a balance due the Pension Fund of $2,540.58 (Exhibit B).
5. On April 14, 2008, DONNELL LANGSTON, Individually and as President of Fleet Line Trucking, Inc. entered into a Welfare Fund installment note for $11,350.36 (Exhibit C). Six installment note payments have been made through November 15, 2008. There remains a balance due the Welfare Fund of $4,683.80 (Exhibit D).
6. The Defendants are now in default as to the Complaint and as supported by the attached Affidavits the sums due are:416.00
$2,540.58 Pension installment note $4,683.80 Welfare installment note $925.00 Attorneys fees $ Court costs $8,565.38 WHEREFORE, Plaintiffs pray for the entry of judgment against Defendants, FLEET LINE TRUCKING, INC., an Illinois corporation and DONNELL LANGSTON, Individually, jointly and severally and in favor of Plaintiffs, TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS in the amount of $8,565.38.EXHIBIT A
SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS FRINGE BENEFITS Fleet Line Trucking, Inc.: Pension Fund
April 15, 2008
For value received, the undersigned promises to pay to the order of Suburban Teamsters of Northern Illinois Pension Fund the principal total of $6,141.76 (Six Thousand One Hundred Forty One and 76/100 dollars.)
The maker of this Note acknowledges that the above indebtedness represents fringe benefit contributions and other costs and charges due and owing pursuant to applicable provisions of the Employee Retirement Income and Security Act 29 U.S.C. 1145. For contributions due for the period February, 2007 through September, 2007.
The Employer shall make a down payment of $1,224.98 on April 15, 2008, leaving a principal balance of $4,916.78. That balance is to be paid with 10% annual interest in 12 equal and consecutive monthly installment of $432.26 begining on May 15, 2008. Payments should be sent to:
Suburban Teamsters of Northern Illinois
1275 W. Roosevelt Rd. Unit 121
West Chicago, IL 60185
Or such other place as may be directed by the legal holder of this Note.
The Employer is to remain current in regular monthly contributions. Failure to do so will be considered a default, causing the remaining unpaid Note balance to become immediately due and payable.
The undersigned hereby irrevocably authorizes any attorney of any court of record to appear for the undersigned in such court, in term time or vacation, at any time after default in the payment of any installment of the principal hereof, and confess judgment without process in favor of the payee or holder of this Note for the unpaid amount, together with costs of collection including reasonable attorney's fees, and to waive and release all errors which may intervene in such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof.
All parties hereto severally waive presentment for payment, notice of dishonor and protest.April 14, 2008 April 14, 2008
By: ____________________________ Date: Donnell Langston, President Fleet Line Trucking, Inc. ______________________________ Date: Donnell Langston, IndividuallyEXHIBIT B
Fleet Line Trucking, Inc. 4592 Pension Fund $(6,141.76) April 15, 2008 0841 ($4,916.78) 12 $432.26 /month PAY THIS. . . . . .OR THIS AFTER REGULAR PAYMENT Payments Made Er # PRINCIPAL TOTAL: DOWN PYMT: $1,224.98 Date: Ck #: PRINC BALANCE: NMBR PYMNTS: MNTHLY PYMT: . . NOTE CURRENT Date DUE BALANCE PEN PYMNT PRINC PD PRINC BAL Date Check # 1 05/15/08 4,957.75 432.26 391.29 4,525.49 1 5/15/08 0954 2 06/15/08 4,563.20 432.26 394.55 4,130.94 2 7/15/08 0962 3 07/15/08 4,165.36 432.26 397.84 3,733.10 3 4 08/15/08 3,764.21 432.26 401.15 3,331.94 4 9/26/08 0967 5 09/15/08 3,359.71 432.26 404.50 2,927.45 5 6 10/15/08 2,951.84 432.26 407.87 2,519.58 6 11/15/08 0964 7 11/15/08 2,540.58 432.26 411.27 2,108.31 7 8 12/15/08 2,125.88 432.26 414.69 1,693.62 8 9 01/15/09 1,707.73 432.26 418.15 1,275.47 9 10 02/15/09 1,286.10 432.26 421.63 853.84 10 11 03/15/09 860.95 432.26 425.15 428.69 11 12 04/15/09 432.26 432.26 428.69 0.00 12EXHIBIT C
SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS FRINGE BENEFITS Fleet Line Trucking, Inc.: Welfare FundApril 15, 2008
For value received, the undersigned promises to pay to the order of Suburban Teamsters of Northern Illinois Welfare Fund the principal total of $11,350.36 ( Eleven Thousand Three Hundred Fifty and 36/100 dollars.)
The maker of this Note acknowledges that the above indebtedness represents fringe benefit contributions and other costs and charges due and owing pursuant to applicable provisions of the Employce Retirement Income and Security Act 29 U.S.C. 1145. For contributions due for the period February, 2007 through September, 2007.
The Employer shall make a down payment of $2,285.79 on April 15, 2008, leaving a principal balance of $9,064.57. That balance is to be paid with 10% annual interestin 12 equal and consecutive monthly installments of $796.92 beginning on May 15, 2008 Payments should be sent to:
Suburban Teamsters of Northern Illinois
1275 W. Roosevelt Rd. Unit 121
West Chicago, IL 60185
Or such other place as may be directed by the legal holder of this Note.
The Employer is to remain current in regular monthly contributions. Failure to do so will be considered a default, causing the remaining unpaid Note balance to become immediately due and payable.
The undersigned hereby irrevocably authorizes any attorney of any court of record to appear for the undersigned in such court, in term time or vacation, at any time after default in the payment of any installment of the principal hereof, and confess judgment without process in favor of the payee or holder of this Note for the unpaid amount, together with costs of collection including reasonable attorney's fees, and to waive and release all errors which may intervene in such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof.
All parties hereto severally waive presentment for payment, notice of dishonor and protest.April 14, 2008 April 14, 2008
By: ____________________________ Date: Donnell Langston, President Fleet Line Trucking, Inc. ___________________________ Date: Donnell Langston, IndividuallyEXHIBIT D
Fleet Line Trucking, Inc. 4592 Welfare Fund $(11,350.36) April 15, 2008 0842 ($9,064.57) 12 $796.92 /month PAY THIS . . . . . .OR THIS AFTER REGULAR PAYMENT Payments Made Er # PRINCIPAL TOTAL: DOWN PYMT: $2,285.79 Date: Ck #: PRINC BALANCE: NMBR PYMNTS: MNTHLY PYMT: . . NOTE CURRENT Date DUE BALANCE WEL PYMNT PRINC PD PRINC BAL Date Check # 1 05/15/08 9,140.11 796.92 721.38 8,343.19 1 5/15/08 0953 2 06/15/08 8,412.71 796.92 727.39 7,615.79 2 7/15/08 0961 3 07/15/08 7,679.26 796.92 733.46 6,882.34 3 4 08/15/08 6,939.69 796.92 739.57 6,142.77 4 9/26/08 0913 5 09/15/08 6,193.96 796.92 745.73 5,397.04 5 6 10/15/08 5,442.01 796.92 751.94 4,645.09 6 11/15/08 0969 7 11/15/08 4,683.80 796.92 758.21 3,886.88 7 8 12/15/08 3,919.27 796.92 764.53 3,122.36 8 9 01/15/09 3,148.37 796.92 770.90 2,351.46 9 10 02/15/09 2,371.05 796.92 777.32 1,574.13 10 11 03/15/09 1,587.25 796.92 783.80 790.33 11 12 04/15/09 796.92 796.92 790.33 0.00 12AFFIDAVIT IN SUPPORT OF ATTORNEYS' FEES
NOW COMES the undersigned, JOHN J. TOOMEY, upon being first duly sworn, deposes and states as follows:1. The undersigned is counsel of record in Case No. 08 C 1015.
2. Affiant is an attorney licensed to practice law in the State of Illinois since 1978. Affiant is admitted to the trial Bar of the Northern District of Illinois, the Central District of Illinois and the Seventh, Eighth, Second, Eleventh Circuit Courts of Appeal, U. S. Tax Court and the United States Supreme Court.
3. The time spent in the case are as follows, were reasonably necessary in the prosecution of the case, and no paralegals were used:
February 19, 2008 Open file; draft complaint and summons and file with court 2 hours March 24, 2008 Return of service filed with the court .5 hours March 9, 2009 Draft Motion for Judgment in Sum Certain 1.5 hour Court appearance on Motion for Judgment in Sum Certain 1.0 hour 4. The costs expended in prosecuting the case are: Filing fee $350.00 Service of process Argus Agency $66.00 Total $416.00 5. Reasonable value of such services is One Hundred Eighty Five Dollars per hour: $185.00 × 5 hours $925.00 6. The total in fees and costs expended are: Attorneys' fees $925.00 Costs $416.00 Total $1,341.00 FURTHER AFFIANT SAYETH NOT.AFFIDAVIT
RICHARD SIEBERT, upon being first duly sworn deposes and states as follows:
1. Affiant is employed by the Suburban Teamsters Welfare and Pension Fund ("Funds") as an auditor, is familiar with the Fleet Line Trucking Incorporated audit ("Employer"), having examined its books and records to determine what amounts if any were due and owing the Funds, and is also familiar with the parties' agreement concerning contributions, liquidated damages and interest owed.
2. That an audit of Employer's books and records was performed on march 18, 2008 covering the period April, 2007 through February, 2008 and found to be owing:
Pension $6,141.76 Welfare $11,350.36 3. That Employer was given a copy of the audit and given notice of findings and has not made all the installment note payments.4. That the audit including liquidated damages and interest totals $17,492.12.
5. That Affiant suffers from no disability and can so testify and affirm such facts.
FURTHER AFFIANT SAYETH NOT.
ORDER OF JUDGMENT
SAMUEL DER-YEGHIAYAN, District Judge
This matter coming to be heard upon Plaintiff's Motion for Judgment in a sum certain and the court being fully advised in the premises,
IT IS HEREBY ORDERED AS FOLLOWS:
That judgment is entered in favor of the Plaintiff TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS and against the Defendants, FLEET LINE TRUCKING INCORPORATED, an Illinois corporation and DONNELL LANGSTON, Individually, jointly and severally in the amount of $8,565.38.