Laborers' Pension Fund and Laborers' Welfare Fund Of The Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity et al v. Salute Concrete, Inc.

Filing 14

MOTION by Plaintiffs James S. Jorgensen, Laborers' Pension Fund and Laborers' Welfare Fund Of The Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity for judgment for damages (Attachments: # 1 Affidavit Exh.A Fosco Affidavit, # 2 Exhibit Exh.B Audit Report, # 3 Exhibit Exh.C Summary Report and Ledger, # 4 Affidavit Exh.D Schumann Affidavit; Exh.D1 Fee Report)(Schumann, Sara)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LABORERS’ PENSION FUND and
LABORERS’ WELFARE FUND OF THE
HEALTH AND WELFARE DEPARTMENT
OF THE CONSTRUCTION AND GENERAL
LABORERS’ DISTRICT COUNCIL OF
CHICAGO AND VICINITY, and JAMES S.
JORGENSEN, Administrator of the Funds
Plaintiffs,
v.
SALUTE CONCRETE, INC.,
Defendant.

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Case No. 13 C 0386
Judge Milton I. Shadur

PLAINTIFFS’ MOTION FOR PROVE-UP OF DAMAGES
Plaintiffs, the Laborers’ Pension Fund and Laborers’ Welfare Fund of the Health and Welfare
Fund of the Health and Welfare Department of Construction and General Laborers’ District Council
of Chicago and Vicinity, and James S. Jorgensen, Administrator of the Funds (the “Funds”), by their
attorneys, hereby move for judgment of damages in sum certain against defendant, Salute Concrete,
Inc., (the “Company”), pursuant to Rule 55 of the Federal Rules of Civil Procedure. In support of
this Motion, plaintiffs by and through their attorneys state:
1.

On January 17, 2013, plaintiffs filed a complaint under Sections 502(e)(1) and (2) of

the Employee Retirement Income Security Act, as amended, 29 U.S.C. §1132(e)(1) and (2); Section
301(a) of the Labor Management Relations Act, as amended, 29 U.S.C. §185(a); and 28 U.S.C.
§1331 alleging that at all material times defendant, Salute Concrete, Inc. (the “Company”), has an
obligation, arising from a collective bargaining agreement to make contributions to plaintiffs’ Funds,
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to submit to an audit upon demand and to obtain and maintain a surety bond. In this Complaint,
plaintiffs specifically alleged that defendant failed to report and pay contributions from October 1,
2012 to the present. Plaintiffs requested relief included producing books and records for an audit
upon plaintiffs’ request.
2.

On February 28, 2013, the Court granted plaintiffs’ motion for default.

3. The Company’s president, Thomas Saviano, agreed to comply with the Funds’ selected
auditors from the Firm of Richard J. Wolf and Company, Inc., that performed a payroll audit as
required by the Collective Bargaining Agreement, which was attached to the Complaint (See, Dk#1).
4. As established by the Funds’ Field Department Representative, James Fosco, the Funds’
auditors reviewed the defendant’s records that reflected contributions due to the Funds for the period
covering June 6, 2012 through February 28, 2013. A letter and a copy of the auditors’ report was
sent to the Company with a deadline for presenting any objections to the audit report. The Company
did present objections as well as further documentation, and, after due consideration, the Funds
agreed to accept some of the Company’s challenges. The audit was revised to reflect these
adjustments. Thus, the auditors’ revised report of August 20, 2013, reflects principal contributions
owed to the Welfare, Pension, Training, LMCC, CCA, and LECET funds, and for Union dues in the
total amount of $14,369.95, as well as accumulated late penalties in the amount of $2,692.30. (See,
James Fosco Affidavit, Exhibit A, ¶2-3; the Audit Report, Exhibit B).
5.

According to the Collective Bargaining Agreement and the respective Trust

Agreements to which the defendant is bound, payment is also owed for liquidated damages in the
amount of 20% (twenty percent) of the unpaid or late contributions to the Welfare, Pension, and
Training funds, and 10% (ten percent) of the principal amount of delinquent contributions to the
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LMCC, CCA and LECET funds, and for Union dues. Additionally, interest is calculated at twelve
percent and is owed for all delinquencies. As established by the affidavit of Mr. Fosco the liquidated
damages owed to the Welfare, Pension and Training funds amount to $2,727.29, and the liquidated
damages to the LMCC, CCA and LECET funds, and for Union dues, amount to $73.35. Interest is
due in the amount of $1,563.00 (See, Fosco Affidavit, Exh. A, ¶4-5). These amounts are further
detailed in the summary reports prepared by Mr. Fosco in this matter that are attached as Exhibit C.
6.

The cost of the audit billed to the Funds was $600.00, which the defendant is also

obligated to pay, based on the respective Trust Agreements to which they are bound. (Fosco
Affidavit, Exh. A, ¶7; Audit Report, Exh. B).
7.

Plaintiffs are entitled to attorneys’ fees and costs under ERISA, 29

U.S.C.§1132(g)(2)(B). The attached affidavit of Sara Stewart Schumann establishes the amount of
attorneys’ fees incurred in this matter are $4,480.00 and $420.00 in costs, consisting of service of
process and filing fees (See, Sara Stewart Schumann Affidavit, Exhibit D; Fee Report, Exhibit D1).
WHEREFORE, plaintiffs request entry of judgment against the defendant, Salute Concrete,
Inc., requesting that the Court order judgment in a total amount of $26,925.89 to be entered.
Further, plaintiffs request the Court’s order specify that, should the defendant resume operations,
the Company must report hours of covered employees on a monthly basis and pay current
contributions as they become due as required under the collective bargaining agreement, and the
Company must provide written proof that it has obtained a surety bond to plaintiffs’ counsel, Sara
S. Schumann, Esq., Allison, Slutsky & Kennedy, P.C., 230 W. Monroe Street, Suite 2600, Chicago,
IL 60606.

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Respectfully submitted,

/s/ Sara S. Schumann
One of plaintiffs’ attorneys
Karen I. Engelhardt
Jason A. McGaughy
Sara S. Schumann
ALLISON, SLUTSKY & KENNEDY, P.C.,
230 W. Monroe Street Suite 2600
Chicago, IL 60606
[phone]
August 30, 2013

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