Midwest Operating Engineers Pension Trust Fund et al v. Cutting Edge Excavation, Inc.

Filing 16

MOTION by Plaintiffs Steven M Cisco, Angelo A DiPaolo, Marshall Douglas, David Fagan, John E Kenny, Jr., Mike Larson, Local 150, I.U.O.E. Vacation Savings Plan, James McNally, Midwest Operating Engineers Pension Trust Fund, Midwest Operating Engineers Welfare Fund, Operating Engineers Local 150 Apprenticeship Fund, Mike Piraino, Daniel R Plote, David Rock, David Snelten, James M Sweeney, Martin Turek, Glen Weeks for judgment entry (Alfon, Beverly)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JAMES M. SWEENEY, et al., Plaintiffs, vs. CUTTING EDGE EXCAVATION, INC., an Indiana corporation, a/k/a CUTTING EDGE EXCAVATION, Defendant. ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 09 C 5940 JUDGE ROBERT M. DOW, JR.

MOTION FOR ENTRY OF JUDGMENT Plaintiffs, by and through their attorneys, default having been entered against the Defendant on December 3, 2009, request this Court enter judgment against Defendant, CUTTING EDGE EXCAVATION, INC., an Indiana corporation, a/k/a CUTTING EDGE EXCAVATION. In support of that Motion, Plaintiffs state: 1. On December 3, 2009, this Court entered default against Defendant and granted

Plaintiffs' request for an order directing Defendant to turn over its monthly fringe benefit contribution reports for July 2009 through the present date. The Court also entered an order that judgment would be entered after Defendant submitted the required reports and Plaintiffs' determined the amounts due and owing. 2. After a careful review of the Defendant's account, Plaintiff Funds have determined

that they do not require Defendant to submit additional fringe benefit contribution reports for July 2009 through the present date.

3.

Based on contribution reports submitted by Defendant for December 2008 through

July 2009, Plaintiffs have determined that the following contributions are due: Welfare Fund Pension Fund Apprenticeship Fund Vacation Fund (See Affidavit of David S. Bodley). 4. Defendant submitted the fringe benefit contributions due for June 2008 through Contributions $30,119.22 $21,581.79 $ 1,544.09 $ 4,242.40

November 2008 at incorrect contribution rates and accordingly owes the following contributions: Welfare Fund Pension Fund (Bodley Aff. ¶4(d)). 5. Defendant had employees covered by the collective bargaining agreements during Contributions $604.80 $151.20

the months of December 2007 and January 2008, and that these employees have submitted check stubs showing the number of hours worked by them for the Defendant. Defendant subsequently paid the contributions due for the stated time period, but said contributions were untimely submitted and accordingly Plaintiffs have assessed a liquidated damages surcharge against the Defendant in the amount of ten (10%) percent of all contributions due which were paid late, for the aforesaid months, in amounts set forth below: Liquidated Damages $118.07 $ 95.69 $ 6.17 $ 33.95

Welfare Fund Pension Fund Apprenticeship Fund Vacation Fund (Bodley Aff. ¶4(e)). 2

6.

Pursuant to the Trust Agreements, a liquidated damages surcharge has been assessed

against the Defendant in the amount of ten (10%) percent of all contributions due and unpaid and all contributions which were paid late, for the months of January 2008 and September 2008 through July 2009, in amounts set forth below: Liquidated Damages $6,746.19 $5,010.07 $ 329.45 $1,352.59

Welfare Fund Pension Fund Apprenticeship Fund Vacation Fund (Bodley Aff. ¶5). 7.

In addition, Plaintiffs' firm has expended $470.00 for costs and the total amount of

$1,707.50 in attorneys' fees in this matter. (See Affidavit of Catherine M. Chapman). 8. Based upon the documents attached hereto, Plaintiffs request entry of judgment in

the total amount of $74,113.18. WHEREFORE, Plaintiffs respectfully request this Court to enter judgment in the amount of $74,113.18. /s/ Beverly P. Alfon Beverly P. Alfon Attorney for Plaintiffs BAUM SIGMAN AUERBACH & NEUMAN, LTD. 200 West Adams Street, Suite 2200 Chicago, IL 60606-5231 Bar No.: 6274459 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail]
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3

CERTIFICATE OF SERVICE The undersigned, an attorney of record, hereby certifies that she electronically filed the foregoing document (Motion for Entry of Judgment) with the Clerk of Court using the CM/ECF system, and further certifies that I have mailed the above-referenced document by United States Mail to the following non-CM/ECF participant on or before the hour of 5:00 p.m. this 15th day of December 2009: Mr. Joshua L. Walk Cutting Edge Excavation, Inc. 21825 CR 38 Goshen, IN 46526 Mr. Joshua L. Walk Cutting Edge Excavation, Inc. PO Box 2384 Elkhart, IN 46515 Mr. Bodie J. Stegelmann Yoder, Ainlay, Ulmer & Buckingham, LLP 130 N. Main Street PO Box 575 Goshen, IN 46527-0575

/s/ Beverly P. Alfon

Beverly P. Alfon Attorney for Plaintiffs BAUM SIGMAN AUERBACH & NEUMAN, LTD. 200 West Adams Street, Suite 2200 Chicago, IL 60606-5231 Bar No.: 6274459 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail]
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