Opinion
No. 08 C 2983.
March 5, 2009
TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS, John J. Toomey, One of Its Attorneys, ARNOLD AND KADJAN, Chicago, Illinois.
MOTION FOR JUDGMENT IN SUM CERTAIN AND ORDER COMPELLING PRODUCTION OF RECORDS
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 June 9, 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 THIELE TRANSPORT, INC., an Illinois corporation on May 28, 2008 and a copy of the proof of service was filed with the court on June 4, 2008.
3. On January 13, 2009 an Amended Complaint was filed to add an additional Defendant, MEGAN K. THIELE, Individually.
4. Service was made upon MEGAN K. THIELE, Individually on February 5, 2009, and a copy of the proof of service was filed with the court on February 11, 2009.
5. On July 10, 2008, MEGAN K. THIELE, Individually and as President of Thiele Transport, Inc. entered into a Pension Fund installment note for $6,164.97 (Exhibit A). Two installment note payments have made through August 30, 2008. There remains a balance due the Pension Fund of $4,291.23 (Exhibit B).
7. Defendants are now in default as to the Complaint and as supported by the attached Affidavits the sums due are:$524.00
$4,291.23 Pension $925.00 Attorneys fees Court costs $5,740.23 WHEREFORE, Plaintiff prays for the entry of judgment against Defendants, THIELE TRANSPORT, INC., an Illinois corporation and MEGAN K. THIELE, Individually, jointly and severally, and in favor of Plaintiffs, TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS as follows:1. Entry of judgment against Defendant, BEST ENVIRONMENTAL, INC., an Illinois corporation, and in favor of Plaintiffs, TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS in the amount of $5,740.23.
2. Order Defendant to produce its books and records to Plaintiffs' accountant within 21 days, to perform an audit for the period April 1, 2008 through the present time.
3. Grant Plaintiffs any other relief deemed equitable and just under the circumstances.
EXHIBIT A
SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS FRINGE BENEFITS Thiele Transport, Inc.: Pension Fund
June 30, 2008
For value received, the undersigned promises to pay to the order of Suburban Teamsters of Northern Illinois Pension Fund the principal total of $6,164.97 ( Six Thousand One Hundred Sixty Four and 97/100 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 October, 2006 through March, 2008.
The Employer shall make a down payment of $1,541.24 on June 30, 2008, leaving a principal balance of $4,623.73. That balance is to be paid with 10% annual interest in 12 equal and consecutive monthly installments of $406.50 beginning on July 30, 2008. Payments should be sent to:
Suburban Teamsters of Northern Illinois 1171 Commerce Dr. Unit 1 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.7/10/08 7/10/08
By: ___________________________________ Date: Megan K. Thiele, President Thiele Transport, Inc. ___________________________________ Date: Megan K. Thiele, IndividuallyEXHIBIT B
Thiele Transport, Inc.Er # 4670 Pension Fund $ (6,164.97) $ (4,623.73) 12 $406.50 /month PAY THIS. . . . . .OR THIS AFTER REGULAR PAYMENT Payments Made
PRINCIPAL TOTAL: DOWN PYMT: $1,541.24 Date: June 30, 2008 Ck #: PRINC BALANCE: NMBR PYMNTS: MNTHLY PYMT: . . Date DUE BALANCE PEN PYMNT PRINC PD PRINC BAL Date Check # 1 07/30/08 4,662.26 406.50 367.97 4,255.76 1 7/30 2 08/30/08 4,291.23 406.50 371.04 3,884.73 2 8/30 3 09/30/08 3,917.10 406.50 374.13 3,510.60 3 4 10/30/08 3,539.85 406.50 377.24 3,133.35 4 5 11/30/08 3,159.47 406.50 380.39 2,752.97 5 6 12/30/08 2,775.91 406.50 383.56 2,369.41 6 7 01/30/09 2,389.15 406.50 386.75 1,982.65 7 8 02/28/09 1,999.18 406.50 389.98 1,592.68 8 9 03/30/09 1,605.95 406.50 393.23 1,199.45 9 10 04/30/09 1,209.45 406.50 396.50 802.95 10 11 05/30/09 809.64 406.50 399.81 403.14 11 12 06/30/09 406.50 406.50 403.14 (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 2983.
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:
June 9, 2008 Open file; draft complaint and summons and file with court 2 hours June 4, 2008 Return of service filed with the court .5 hours March 4, 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 $174.00 Total $524.00 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 $524.00 Total $1,449.00 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 Thiele Transport, Inc., an Illinois corporation 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 31, 2008 covering the period January, 2007 through March, 2008 and found to be owing:
Pension $6,118.43 3. That Employer was given a copy of the audit and given notice of findings.4. That the audit including liquidated damages and interest totals $6,118.43.
5. That Affiant suffers from no disability and can so testify and affirm such facts. FURTHER AFFIANT SAYETH NOT.
ORDER OF JUDGMENT
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, THIELE TRANSPORT, INC., an Illinois corporation and MEGAN K. THIELE, Individually, and jointly and severally, in the amount of $5,740.23.
ORDER OF DEFAULT AND PRODUCTION OF RECORDS
RONALD GUZMAN, District Judge
This cause coming on to be heard on Plaintiff's Motion for Entry of Order of Default and requiring production of records by THIELE TRANSPORT, INC., an Illinois corporation and MEGAN K. THIELE, Individually, all parties having been sent appropriate notice, and the Court being fully apprised in the matter,
IT IS HEREBY ORDERED:
1. Defendants are found to be in default for failing to have answered the Complaint.
2. Defendants, THIELE TRANSPORT, INC., an Illinois corporation and MEGAN K. THIELE, Individually are ordered to submit the following books and records to Plaintiffs for April 1, 2008 to the present within 21 days:
A. All cash disbursement journals;
B. All individual payroll records.
C. All time records which are the basis of the above-mentioned individual payroll records;
D. All state unemployment payroll tax returns;
E. All state and federal certified payroll forms;
F. All union pension and welfare fund records or other records showing fringe benefit contributions on behalf of any employees;
G. All other relevant records which would tend to show compliance with the terms of the Trusts;
H. All federal and state payroll income returns; including, but not limited to 1099, W-2 and/or UCC 3, 1120 and 1065 forms;
I. All documents which show or which tend to indicate ownership in any company, regardless of its status as a corporation or partnership, which performs, in whole or in part, work for which construction or general laborers would be employed;
J. The corporate books and records of any corporation owned by the Defendant.
K. The partnership books and records of any partnership owned by the Defendant.