Opinion
2022 C 2234
07-15-2022
TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS, Plaintiffs, v. FRANCO ENTERPRISES, INC., an Illinois corporation Defendant.
John J. Tharp, Jr. Judge
MOTION FOR ORDER OF DEFAULT AND JUDGMENT IN SUM CERTAIN
Cole Magistrate Judge
NOW COME the Plaintiffs, TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUND, by and through its attorney, JOHN J. TOOMEY, ARNOLD AND KADJAN, LLP and move for default, pursuant to FRCP 55(a) and judgment in sum certain under FRCP 54(c) as stated in this Motion and the supporting Affidavits attached hereto as Exhibits 1 and 2. In support of its Motion, Plaintiffs state as follows:
1. Suit was filed on April 29,2022 for collection of delinquent contributions plus attorneys' fees, costs and interest under 29 U.S.C. 1132(g)(2).
2. An audit of Employer's books and records was performed on September
24, 2021 for the period June 1, 2017 through June 30, 2020, and found to be owing by the Employer:
| Pension | $86,682.00 |
| Welfare | $102,688.65 |
| Total | $189,370.65 |
3. Service was made upon FRANCO ENTERPRISES, INC., an Illinois corporation on May 8, 2022.
4. On May 23, 2022 Employer made challenges to the audit and a revised audit was sent to the Employer as follows:
| Pension | $53,222.10 |
| Welfare | $62,376.01 |
| Total | $115,898.11 |
5. Defendant is now in default under FRCP 55(a) on the ERISA Complaint and attorneys' fees and costs are awarded under 29 U.S.C. 1132(g)(2) and as supported by the attached Affidavits (Exhibits 1 and 2) judgment, pursuant to FRCP 54(c), is sought in the following amounts:
| $62,376.01 | Welfare |
| $53,222.10 | Pension |
| $1,250.00 | Attorneys fees |
| $474.00 | Court costs |
| $117,322.11 |
WHEREFORE, Plaintiffs pray for:
1. Entry of default and judgment in a sum certain against Defendant, FRANCO ENTERPRISES, INC., an Illinois corporation, and in favor of Plaintiffs, TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS PENSION AND WELFARE FUNDS in the amount of $117.322.11 with no just reason for delay in enforcement under FRCP 54(b).
TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS PENSION AND WELFARE FUNDS
EXHIBIT 1
AFFIDAVIT 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. 2022 C 2234.
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 and Eleventh Federal Circuit Courts of Appeal. U.S. Tax Court and the United States Supreme Court since January 11, 1982.
3. The time spent in the case is as follows, was reasonably necessary in the prosecution of the case, no paralegals were used:
| April 29, 2022 | Open file; draft complaint and summons and file with court | 2 hours |
| May 8, 2022 | Return of service filed with the court | 5 hours |
| July 7, 2022 | Draft Motion for Judgment in Sum Certain | 1.5 hours |
| Court appearance on Motion for Judgment in Sum Certain | 1.0 hours |
4. The costs expended in prosecuting the case are:
| Filing fee | $400.00 |
| Reliant Agency Service of Complaint | $74.00 |
| Total Costs | $474.00 |
5. Reasonable value of such services is Two Hundred Fifty Dollars per hour:
| $250.00 x 5 hours | $1,250.00 |
6. The total in fees and costs expended are:
| Attorneys' fees | $1,250.00 |
| Costs | $474.00 |
| Total | $1,724.00 |
EXHIBIT 2
AFFIDAVIT
JOSE M. COLIN, upon being first duly sworn deposes and states as follows:
1. Affiant is employed by the Suburban Teamsters Welfare and Pension Funds (“Fund”) as the Fund Manager and is familiar with the FRANCO ENTERPRISES, INC., an Illinois corporation, audited 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. An audit of Employer's books and records was performed on September 24, 2021 for the period June 1, 2017 through June 30, 2020, and found to be owing by the Employer:
| Pension | $86,682.00 |
| Welfare | $102,688.65 |
| Total | $189,370.65 |
| Pension | $53,222.10 |
| Welfare | $62,376.01 |
| Total | $115,898 11 |
.4. Affiant is above the age of 21, suffers from no disability and has actual knowledge of the above and could so testify.