Sullivan et al v. Thomas H. Litvin, Co.

Filing 26

MOTION by Plaintiffs James T. Sullivan, Plumbers' Pension Fund, Local 130, U.A., Plumbers' Welfare Fund, Local 130, U.A., Trust Fund for Apprentice and Journeymen Education and Training, Local 130, U.A.,The, Chicago Journeymen Plumbers' ; Local Union 130, U.A.., Group Legal Services Plan Fund, Plumbing Council of Chicagoland, The for judgment (conditional) against Third Party Citation Respondent, Bovis Lend Lease, Inc. (Attachments: # 1 Exhibit A through C)(Bedinghaus, Brian)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JAMES T. SULLIVAN, etc., et al., Plaintiffs/Judgment Creditors, v. THOMAS H. LITVIN CO., Defendant/Judgment Debtor, and BOVIS LEND LEASE, INC., Citation Respondent. ) ) ) ) ) ) ) ) ) ) ) )

No. 08 C 2904 Judge Virginia Kendall Magistrate Judge Nolan

JUDGMENT CREDITORS' MOTION FOR CONDITIONAL JUDGMENT AGAINST BOVIS LEND LEASE, INC. Plaintiffs/Judgment Creditors, James T. Sullivan, etc., et al. (collectively, "Funds"), by their attorneys, Douglas A. Lindsay, John W. Loseman, and Brian T. Bedinghaus, with LEWIS, OV ERBECK & FURMAN, LLP, of counsel, move the Court, pursuant to Fed. R. Civ. P. 69(a)(1), 735 ILCS 5/2-1402(c)(4), and 735 ILCS 5/12-706(a), to enter a conditional judgment against Citation Respondent, BOVIS LEND LEASE, INC. ("Bovis"), in the amount of $1,052,498.73. In support hereof, Funds state: 1. On July 15, 2008, Funds obtained a judgment against Defendant, THOMAS H. LITVIN CO., in the amount of $1,036,149.90. 2. On September 11, 2008, Funds served a Citation to Discover Assets (Third Party) ("Third Party Citation") upon Bovis. A true and correct copy of the Third Party Citation and Affidavit of Service of Citation to Discover Assets (Third Party) are attached hereto as Exhibit A. 1

3. The Third Party Citation was directed to the attention of Bovis Senior Vice President, John C. Morley. Third Party Citation, p. 1, Exhibit A. 4. The Third Party Citation requested that Bovis produce documents to Funds' attorneys concerning assets, property, income and indebtedness owed to the Judgment Debtor, by October 14, 2008. Third Party Citation, p. 2, Exhibit A. 5. The Third Party Citation further required Bovis to appear for examination on October 21, 2008, at 1:30 P.M. Third Party Citation, p. 1, Exhibit A. 6. Bovis failed to produce the requested documents and failed to appear for the examination. 7. On October 27, 2008, counsel for Funds sent a letter to John C. Morley at Bovis requesting compliance with the Third Party Citation. A true and correct copy of the letter to Morley is attached hereto as Exhibit B. 8. On November 18, 2008, Funds' attorney, Brian T. Bedinghaus, telephoned Morley and spoke to Morley's secretary, Sheila Hatten. Hatten stated that Morley was not in the office, and she requested that copies of the Citation documents be emailed to her. Bedinghaus emailed the documents to Hatten that same afternoon, and a true and correct copy of the email is attached hereto as Exhibit C. 9. As of the date of filing this motion, Funds have not received a response to the Third Party Citation issued to Bovis (Exhibit A), the October 27, 2008 letter to Morley (Exhibit B), or the November 18, 2008 email to Hatten (Exhibit C). 10. 735 ILCS 5/2-1402(c)(4), made applicable by Fed. R. Civ. P. 69(a), permits the Court hearing a citation to enter any order that could be entered in a garnishment proceeding. 2

11. 735 ILCS 5/12-706(a) provides that "[w]hen any person summoned as garnishee fails to appear and answer as required . . . the court may enter a conditional judgment against the garnishee for the amount due upon the judgment against the judgment debtor." 12. The entire judgment plus post-judgment interest at the rate of 2.25% remains unsatisfied. As of February 9, 2009, the balance due on the judgment against THOMAS H. LITVIN CO. is $1,052,498.73, consisting of (1) principal of $1,039,149.90 and (2) interest of $13,348.83. Interest continues to accrue at a rate of $63.87 per day while the judgment remains unsatisfied. 13. Funds request that a conditional judgment be entered against Bovis in the amount of $1,052,498.73 with a summons to issue to confirm said conditional judgment. WHEREFORE, Plaintiffs/Judgment Creditors, James T. Sullivan, etc., et al., request the Court to: (1) enter a conditional judgment in favor of Plaintiffs/Judgment Creditors and against Citation Respondent, BOVIS LEND LEASE, INC., in the amount of $1,052,498.73; (2) issue a Summons to confirm the conditional judgment; and (3) order additional relief as the Court deems necessary and appropriate. James T. Sullivan, etc., et al., by their attorneys, Douglas A. Lindsay, John W. Loseman, and Brian T. Bedinghaus By: s/ Brian T. Bedinghaus Brian T. Bedinghaus 20 N. Clark Street, Suite 3200 Chicago, IL 60602-5093 312.580.1269 Of Counsel: LE W IS, OVERBECK & FURMAN, LLP 20 N. Clark Street, Suite 3200 Chicago, IL 60602-5093 312.580.1200

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CERTIFICATE OF SERVICE I served a copy of the foregoing JUDGMENT CREDITORS' MOTION FOR CONDITIONAL JUDGMENT AGAINST BOVIS LEND LEASE, INC. upon: David J. Schwab Ralph, Schwab & Schiever, Chtd. 175 E. Hawthorn Parkway, Suite 345 Vernon Hills, IL 60061 [e-mail] via the electronic filing (ECF) system of the United States District Court for the Northern District of Illinois as a result of electronic filing made this 9th day of February, 2009. In accordance with 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true and correct.

Executed on February 9, 2009 s/ Brian T. Bedinghaus Brian T. Bedinghaus

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