Central States Se & Sw Areas Pension Fund et al v. J. R. Mazzola, Inc.

Filing 11

MOTION by Plaintiffs Central States, Southeast and Southwest Areas Pension Fund, Howard McDougall for judgment (Attachments: # 1 Exhibit A - Affidavit of Juan Beaton, # 2 Exhibit B - Return of Service, # 3 Exhibit C - July 14, 2010 Minute Order, # 4 Exhibit D - Affidavit of Cathy L. Rath)(Rath, Cathy)

Central States, Southeast and Southwest Areas Pension Fund et al v. J. R. Mazzola, Inc.

Doc. 11 Att. 1

EXHIBIT A

Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

) ) ) ) ) Plaintiffs, ) ) v. ) J. R. MAZZOLA, INC., a Michigan corporation, ) ) ) Defendant.

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND and HOWARD McDOUGALL, trustee,

Case No. 10 CV 2446 Judge George W. Lindberg

AFFIDAVIT OF JUAN J. BEATON

State of Illinois County of Cook

) ) SS )

I, Juan J. Beaton, having been duly sworn on oath, depose and state as follows: 1. I am the Division Manager of the Collections Division at the Central States,

Southeast and Southwest Areas Pension Fund (the "Pension Fund"). I have personal knowledge of the facts set forth below and would be competent to testify as to these facts if called as a witness in this matter. 2. I am responsible for managing the collection of past due employer

contributions owed to the Funds, including past due employer contributions owed by Defendant J. R. Mazzola, Inc. a Michigan corporation ("Mazzola"). 3. In the regular course of business, the Pension Fund keeps and maintain files

relating to the contributions owed by Mazzola to the Pension Fund. The files are under my dominion and control.

F:338984 I 10110012/7/21110

4.

On the date this action was filed and to the present date, Plaintiff Howard

McDougall was and is one of the trustees and a fiduciary of the Pension Fund. The Trustees are the plan sponsors of the Pension Fund within the meaning of Section 4001{a)(10) of ERISA, 29 U:S.C. § 1301{a){10). 5. The Pension Fund is a multiemployer plan which is administered at its

principal place of business at 9377 West Higgins Road, Rosemont, Cook County, Illinois. 6. The Pension Fund receives contributions from numerous employers pursuant

to collective bargaining agreements by and between employers and various local unions affiliated with the International Brotherhood of Teamsters ("IBT"). 7. The contributions received by the Pension Fund are used to provide pension

bene'fits to the Pension Fund's participants and beneficiaries.

I.

J.R. Mazzola, Inc.'s Obligation to Contribute
8. The Pension Fund's records indicate that Mazzola was bound by a collective

bargaining agreement entered into with Local Union No. 337 of the IBT ("Local 337") covering the period March 1,2007, through at least September 1,2011, pursuant to which Mazzola was required to pay monthly employer contributions to the Pension Fund on behalf of certain of its employees. 9. 10. Mazzola also agreed to be bound by the Pension Fund Trust Agreement. The Pension Fund relies upon employers, including Mazzola, to self-report

the work history of eligible employees. Under this self-reporting system, participating employers initially establish a base group of employees for whom contributions are due. Thereafter, the employer is required to notify the Pension Fund on a monthly basis of any changes in the employment status of individuals covered by the collective bargaining agreement (e.g., layoffs, new hires, terminations, etc.). The Pension Fund relies upon

F:338984 1 10110012/7121110

2

these reports submitted by employers to prepare a monthly contributions bill that is sent to the employers. Contributions for each calendar month are due 15 days after the end of the month. 11. During the period of October 2009 through February 201 0, Mazzola reported

the work history of its employees to the Pension Fund. 12. Mazzola failed to pay all of the contributions and interest revealed to be

owed based on the work history it reported to the Pension Fund for the month of October 2009, and the months of December 2009 through February 2010.

III.

C a l c u l a t i o n Of A m o u n t Owed By J. R. Mazzola, Inc.
13. The Pension Fund is entitled to the following relief when prevailing in an

action under Section 515 of ERISA, 29 U.S.C. § 1145: (i) (ii) (iii) the unpaid contributions; interest on the unpaid contributions; an amount equal to the greater of the interest or liquidated damages as provided under the Plan in an amount not in excess of twenty percent· (20%) of the unpaid contributions; and (iv) reasonable attorney's fees and costs.

An award of these amounts is mandatory. Cent. States, Se. & Sw. Areas Pension Fund v. Gerber Truek Serv., 870 F.2d 1148,1156 (7th Cir. 1989) (en bane). 14. Pursuant to 29 U.S.C. § 1132(g)(2), Mazzola owes the Pension Fund the

principal amount of $12,963.70 for delinquent contributions. 15. Pursuant to 29 U.S.C. § 1132(g)(2), interest is computed and charged at the

rate set by the plan. 16. U n d e r the Pension ~und's Trust Agreement as amended through December

F:338984 1 10110012/7/21110

3

28, 2008, interest prior to February 15, 2010, is computed and charged at an annualized interest rate equal to two percent (2%) plus the prime interest rate established by JPMorgan Chase Bank, N.A. for the fifteenth (15th) day of the month for which interest is charged. 17. Under the Pension Fund's Trust Agreement as amended through February

28,2010, interest after February 14, 2010, is computed and charged at the greater of (a) an annualized interest rate equal to two percent (2%) plus the prime interest rate established by JPMorgan Chase Bank, N.A. for the fifteenth (15th) day of the month for which interest is charged, or (b) an annualized interest rate equal to seven and one-half (7.5%) percent. 18. Through July 20, 2010, Mazzola owes the Pension Fund $463.83 in interest

on the unpaid contributions. A true and accurate Breakdown of Contributions Outstanding is attached hereto as Exhibit 1. 19. Under 29 U.S.C. § 1132(g)(2), the Pension Fund is entitled to the greater of

interest on the unpaid contributions or liquidated damages in the amount of twenty percent (20%) of unpaid employer contributions. The Pension Fund's Plan provide for liquidated damages in the amount of 20% of the unpaid contributions. 20. 21. Mazzola owes the Pension Fund $2,592.74 in liquidated damages. Under the Pension Fund's Trust Agreement, interest on a judgment entered

against an employer is computed and charged at an annualized interest rate equal to the greater of (a) two percent (2%) plus the prime interest rate established by JPMorgan Chase Bank, N.A. for the fifteenth day of the months for which the interest is charged, or (b) seven and one-half percent (7.5%), compounded annually.

F:338984 110110012 1 7/21/10

4

FURTHER AFFIANT SAYETH NOT.

Subscribed and sworn to before me, a Notary Public, this 21 st day of July, 2010. Notary Public

Official Seal Connie Boven
Notary Public State of Illinois
My Commission Expires 08/1012011

F:338984 1 10110012/7/21/10

5

EXHIBIT 1

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND BREAKDOWN OF CONTRIBUTIONS OUTSTANDING AS OF JULY 19,2010 JR MAZZOLA INC. ACCOUNT NO. 5117300-0107
TERMINAL.

NO

DESCRIPTION

AMOUNT

INT. THRU 07120/10*

PAYMENTS APPLIED

DATE POSTED 09116/2005 11/25/2005

BALANCE DUE

12371]6 Work history T. Mazzola

$316.50

$6.09

$316.50 6.02 4,182.50 4,182.00 0.00 0.00 0.00

$0.07 1.126.06 9.60 4,331.16 5,388.00 2,572.64

2041606 10/2009 Billing 2060643 11/2009 Billing

5,227.50 4,182.00 4,182.00 5,227.50 2,509.20

81.06 9.60 149.16 160.50 63.44

0111 9/201 0
01/06/2010

2082259 12/2009 Billing 2100545 0112010 Billing 2121218 02/20 I0 Billing

TOTALS

$21.644.70

$469.85

$8,687.02

$13.427.53

**

FOOTNOTES: *Interesl thru 07/20/10 computed on individual items from date due. ** A judgment entered against an employer shall include the total balance due as stated above plus an additional amount equal to the greater of:
(A) Doubling of interest

$463.83

(B) Liquidated damages, based on the unpaid contributions in the amount of 20%

$2,592.74