Opinion
21-cv-201
03-03-2022
TRUSTEES of the CHICAGO REGIONAL COUNCIL of CARPENTERS PENSION FUND et al., Plaintiffs, v. GALLAGHER CONCRETE INC. a/k/a HUGH HENRY CONSTRUCTION INC. a/k/a HH CONCRETE INC. and MICHAEL GALLAGHER, an individual, Defendants.
Daniel P. McAnally Attorney for Plaintiffs
Daniel P. McAnally Attorney for Plaintiffs
MOTION TO REINSTATE AND FOR JUDGMENT
Plaintiffs, by its attorney, Daniel P. McAnally, move this Honorable Court to reinstate this case and enter judgment and in support state:
1. This is an ERISA trust fund case for delinquent contributions.
2. On October 18, 2021 this case was dismissed with leave to reinstate pursuant to the settlement of the parties. (Exhibit A, Agreed Order of Dismissal)
3. The Plaintiffs and Defendant entered into a settlement agreement, whereby the Defendant agreed to pay $128, 669.73 in partial payments. (Exhibit A, paragraph one, Exhibit B) If the Defendant defaulted on the payments, the Plaintiffs retained the right to reinstate this case and enter judgment for the balance owed on the payment arrangement. (Exhibit A, paragraph four)
4. Additionally, in the event of a default, the owner, Michael Gallagher, agreed to be personally liable for the dues deducted from the employees' paychecks in the amount of $6, 130.56. (Exhibit A, paragraph 5, Exhibit B, paragraph 5)1
5. The Defendant defaulted on the Agreement by both failing to make the required payments on the agreed amount and remaining current on its monthly reporting and payment obligations to the Trust Funds. A payment of $3, 995.10 was received and applied to the payment plan. As a result of the default the Defendant now owes the Plaintiff the balance on the payment plan of $124, 674.63 . (Exhibits B, paragraph 4)
WHEREFORE, Plaintiffs pray that this case be reinstated and that judgment be entered against Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc. in the amount of $124, 674.63 and also against Michael Gallagher, individually in the amount of $6, 130.56. 2
EXHIBIT LIST
EXHIBIT A
Agreed Order of Dismissal
EXHIBIT B
Sworn Declaration Pursuant to 28 U.S.C.A. § 1746 John Conklin, Manager, Audits & Collections, Chicago Regional Council of Carpenters Benefit Funds 1
Exhibit A 2
AGREED ORDER OF DISMISSAL
The parties hereby agree that this case has been settled and that all issues and controversies have been resolved to their mutual satisfaction.
IT IS HEREBY ORDERED THAT:
1. Defendant, Gallagher Concrete Inc. a/k/a Hugh Henry
Construction Inc. a/k/a HH Concrete Inc., shall pay to the Plaintiffs $128, 669.73 as follows.
| 9/30/2021 | $3, 000.00 |
| 10/31/2021 | $3, 000.00 |
| 11/30/2021 | $4, 000.00 |
| 12/31/2021 | $4, 000.00 |
| 1/31/2022 | $4, 500.00 |
| 2/28/2022 | $4, 500.00 |
| 3/31/2022 | $5, 000.00 |
| 4/30/2022 | $5, 000.00 |
| 5/31/2022 | $5, 000.00 |
| 6/30/2022 | $5, 000.00 |
| 7/31/2022 | $6, 000.00 |
| 8/31/2022 | $6, 000.00 |
| 9/30/2022 | $7, 000.00 |
| 10/31/2022 | $7, 000.00 |
| 11/30/2022 | $7, 000.00 |
| 12/31/2022 | $7, 000.00 |
| 1/31/2023 | $8, 000.00 |
| 2/28/2023 | $8, 000.00 |
| 3/31/2023 | $9, 000.00 |
| 4/30/2023 | $9, 000.00 |
| 5/31/2023 | $11, 669.73 |
2. Defendant, Michael Gallagher, shall be personally liable for the dues deductions in the amount of $6, 130.56.
3. Defendant, Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc., shall remain current in its monthly reporting and contemporaneous payment obligations to the Plaintiffs beginning with the August 2021 contribution report.
4. If Defendant, Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc., defaults on either paragraphs 1 or 3, the Plaintiffs shall have the right to reinstate this case for the purpose of entering judgment for the balance owed pursuant to this Order, plus any additional unpaid ERISA contributions incurred, dues deductions, accrued interest, accrued liquidated damages and the Plaintiffs' attorney fees expended in the drafting and enforcing of this Order.
5. If the Defendant, Gallagher Concrete Inc. a/k/a Hugh Henry Construction Inc. a/k/a HH Concrete Inc., defaults on either paragraphs 1 or 3, the Plaintiffs shall also have the right to reinstate this case for the purpose of entering judgment against, Michael Gallagher, individually, for the balance owed on the dues deductions, plus any additional unpaid dues deductions.
6. This case is dismissed without prejudice with leave to reinstate on or before September 1, 2023. 4
7. In the event a motion to reinstate is not filed on or before September 1, 2023, the case shall be deemed dismissed with prejudice without further order of the court.
MARTHA M. PACOLD UNITED STATES DISTRICT JUDGE
Agreed: For Plaintiffs, John Conklin Audit & Collecfaons Manager
Agreed: For Defendant, Michael Gallagher President and Owner 5
Exhibit B 6
SWORN DECLARATION PURSUANT TO 28 U.S.C.A. § 1746
John Conklin declares as follows:
1. I am the Manager, Audits & Collections for the Plaintiffs and in such capacity I am authorized to make this Declaration on behalf of the Trust Funds.
2. The Defendants entered into a Settlement Agreement in the form of an "Agreed Order of Dismissal" ("Agreement") with the Trust Funds that required partial payments to the Trust Funds to satisfy the agreed upon settlement amount of $128, 669.73. A copy of the Agreement is attached to this motion as Exhibit A.
3. Attached hereto and incorporated herein is a schedule of the breakdown of the amounts due that formed the basis for the agreed amount of $128, 669.73 in the Agreement.
4. The Defendant did not make timely payments as required by the Agreement. As a result, the Defendant is in default. A payment of $3, 995.10 was received and applied to the payment plan leaving a balance due of $124, 674.63. 7
5. The amount of dues as reflected on the schedule totaling $6, 130.56 remains due and owing from Michael Gallagher individually pursuant to paragraph 5 of the Agreement.
6. Despite my numerous communications to the Defendants requesting that they cure the breach of the agreement, Defendants have failed to do so.
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in this Declaration is true and correct.
John Conklin Manager, Audits & Collections 8
| Hugh Henry / | Gallagher Concrete |
| Contributions | $ 96, 294.36 |
| Liquidated Damages | $ 25, 709.13 |
| Dues | $ 6, 130.56 |
| Interest | $ 935.68 |
| Attorney Fees | $ 8, 100.00 |
| Total Owed | $ 137, 169.73 |
| Date | Amount |
| 8/31/2021 | $ 8, 500.00 Klein Payment |
| 9/30/2021 | $ 3, 000.00 |
| 10/31/2021 | $ 3, 000.00 |
| 11/30/2021 | $ 4, 000.00 |
| 12/31/2021 | $ 4, 000.00 |
| 1/31/2022 | $ 4, 500.00 |
| 2/28/2022 | $ 4, 500.00 |
| 3/31/2022 | $ 5, 000.00 |
| 4/30/2022 | $ 5, 000.00 |
| 5/31/2022 | $ 5, 000.00 |
| 6/30/2022 | $ 5, 000.00 |
| 7/31/2022 | $ 6, 000.00 |
| 8/31/2022 | $ 6, 000.00 |
| 9/30/2022 | $ 7, 000.00 |
| 10/31/2022 | $ 7, 000.00 |
| 11/30/2022 | $ 7, 000.00 |
| 12/31/2022 | $ 7, 000.00 |
| 1/31/2023 | $ 8, 000.00 |
| 2/28/2023 | $ 8, 000.00 |
| 3/31/2023 | $ 9, 000.00 |
| 4/30/2023 | $ 9, 000.00 |
| 5/31/2023 | $ 11, 669.73 |
| Total | $ 128, 669.73 |