Hancock et al v. Riteway-Huggins Construction Services, Inc.

Filing 47

MOTION by Plaintiffs Joseph Benson, Dale Bolt, William H. Collins, Terrence J. Hancock, John J. Lisner, David M. Snelten to reopen case for the Limited Purpose of Enforcing the Terms of the Consent Decree, MOTION by Plaintiffs Joseph Benson, Dale Bolt, William H. Collins, Terrence J. Hancock, John J. Lisner, David M. Snelten for judgment Against Defendant (Attachments: # 1 Exhibit)(Finnegan, Laura)

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

TERRENCE J. HANCOCK, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
RITEWAY-HUGGINS CONSTRUCTION )
SERVICES, INC., an Illinois corporation, )
)
Defendant.
)

CIVIL ACTION
NO. 13 C 4045
JUDGE JOAN B. GOTTSCHALL

PLAINTIFFS' MOTION TO REOPEN CASE FOR
THE LIMITED PURPOSE OF ENFORCING THE
TERMS OF THE CONSENT DECREE
AND ENTERING JUDGMENT AGAINST DEFENDANT
Plaintiffs, TERRENCE J. HANCOCK, et al., by their attorneys, request the entry of an order
reopening this action for the limited purpose of enforcing the terms of the Consent Decree entered
by this Court on May 23, 2015. In support of this Motion, Plaintiffs state as follows:
1.

This action was originally brought by the Plaintiffs, the Trustees of the jointly-

administered, labor-management employee benefit plans, Health and Welfare Fund of the
Excavating, Grading and Asphalt Craft Local No. 731 and Local 731, I.B. of T., Excavators and
Pavers Pension Trust Fund, alleging, inter alia, that Defendant breached its obligations under the
terms of the collective bargaining agreement entered into with the I.B. of T. Local 731, and the
Agreements and Declarations of Trust under which the Plaintiff Funds are maintained. Specifically,
Plaintiffs allege that Defendant failed to remit payment of contributions for work performed on its
behalf by beneficiaries of the Plaintiff Funds. The Complaint was brought pursuant to the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§1132, 1145.

2.

On May 22, 2015, this Court dismissed this cause of action pursuant to the parties’

settlement.
3.

On May 23, 2015, a Consent Decree incorporating the terms for settlement agreed

to by the parties was entered by this Court (a copy of the Consent Decree is attached as Exhibit 1).
4.

Defendant agreed that it owed the total amount of $112,776.36 for contributions,

liquidated damages, interest and attorneys’ fees for the time periods January 1, 2012 through June
30, 2014 (audited period) and July 1, 2014 through November 30, 2014 (unaudited period) as
described in Paragraph 3 of the Consent Decree.
5.

Defendant also agreed that it was obligated to submit its monthly contribution reports

and fringe benefit contributions due during the term of the payment plan.
6.

Defendant agreed to make payment to Plaintiffs of the amount specified in Paragraph

3, being $112,776.36, by way of equal monthly payments over 24 months or a monthly payment of
$4,699.02.
7.

The Consent Decree provides that in the event Defendant fails to make any payments

described in the Consent Decree, including the obligation to remain current in its reporting
obligations during the duration of the Consent Decree, the Defendant will be considered in violation
of the Consent Decree. In such an event, the Defendant consents to the entry of judgment against
it and in favor of the Plaintiff Funds for all amounts unpaid under Paragraph 3, an additional 10%
liquidated damages that were waived, all contributions interest, and liquidated damages that may
become due during the time frame of the payment schedule above, and any and all attorneys’ fees
and costs incurred to date, including costs and fees incurred in bringing a motion to enforce the
Consent Decree.
2

8.

On July 14, 2016, Plaintiffs’ counsel sent an e-mail to Defendant’s counsel regarding

the failure of the Defendant to abide by the terms of the Consent Decree. Specifically, Defendant
did not submit any monthly installments since December 2015. Plaintiffs’ counsel further advised
that as of July 15, 2016, Defendant owed eight (8) installments of $4,699.02 each, for a total of
$37,592.16. Finally, Plaintiffs’s counsel advised Defendant’s counsel that Defendant had 10 days
to cure its breach of the terms of the Consent Decree.
9.

Because Defendant did not cure its breach of the terms of the Consent Decree, on

August 10, 2016, Plaintiffs’ counsel filed Plaintiffs’ Motion to Reopen Case for the Limited Purpose
of Enforcing the Terms of the Consent Decree and Entering Judgment Against Defendant.
10.

On October 21, 2016, after three continuances, Plaintiffs’ motion was heard by this

Court. Pursuant to representations made in open Court by the Defendant, Plaintiffs’ motion was
extended and continued for eight (8) months (until June 2017). This Court ordered the Defendant
to make two (2) monthly installment payments of $4,699.02 each for eight (8) months. The failure
of the Defendant to make the required payments would result in the entry of judgment. The court
also set a status hearing for June 16, 2017 (a copy of the Court’s Notification of Docket Entry
entered on October 21, 2016 is attached as Exhibit 2).
11.

On November 17, 2016, an Order was entered requiring the Defendant to submit two

(2) monthly payments of $4,699.02 each for the time period November 15, 2016 through June 15,
2017. On July 15, 2017, the Defendant would resume submitting one (1) installment payment of
$4,699.02 per month pursuant to the terms of the Consent Decree (a copy of the Order entered on
November 17, 2016 is attached as Exhibit 3).

3

12.

During the time period October 15, 2016 through January 15, 2017, Defendant

submitted two (2) installment payments of $4,699.02 each on October 17, 2016, November 21, 2016,
December 19, 2016 and January 23, 2017. On February 27, 2017, the Defendant submitted only one
(1) payment of $4,699.02, which was due on February 15, 2017.
13.

On February 28, 2017, Plaintiffs’ counsel’s paralegal sent Defendant’s counsel an

email communication advising him that the Defendant only submitted one (1) installment for the
payment due on February 15, 2017, requesting that the second installment be immediately submitted
and that if the payment was not received, that Plaintiffs’ counsel would move to enforce the Court’s
Order.
14.

As of the date of filing the instant motion, Defendant has not cured its breach as it has

not submitted the second installment payment due on February 15, 2017 pursuant to the terms of the
Consent Decree. In addition, Defendant has not submitted the two (2) installment payments of
$4,699.02 each due on March 15, 2017.
15.

For all the reasons stated, the Plaintiffs hereby move the Court for the entry of an

Order reopening this action for the limited purpose of enforcing the terms of the Consent Decree and
entering judgment against the Defendant. Specifically, Plaintiffs request:
A.

That judgment be entered in favor of Plaintiffs and against Defendant to include the
amount of $37,592.04, being the total amount remaining due for contributions,
liquidated damages, interest and attorneys’ fees for the time periods January 1, 2012
through June 30, 2014 and July 1, 2014 through November 30, 2014.

B.

That judgment be entered in favor of Plaintiffs and against Defendant to include the
amount of $6,215.21, being the additional 10% liquidated damages there were
previously waived.

C.

That judgment be entered in favor of Plaintiffs and against Defendant to include the
amount of $5,097.50 in attorneys' fees incurred by the Plaintiffs in all efforts to
4

enforce the Consent Decree, including the preparation and presentment of the instant
Motion to Reopen.
D.

That Plaintiffs have such further relief as may be deemed just and equitable by the
Court.

/s/ Laura M. Finnegan

Laura M. Finnegan
Attorney for Plaintiffs
BAUM SIGMAN AUERBACH & NEUMAN, LTD.
200 West Adams Street, Suite 2200
Chicago, IL 60606-5231
Bar No.: 6204026
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
I:\731exc\Rite-Way\#24498\motion-reopen (2).lmf.df.wpd

5

CERTIFICATE OF SERVICE
The undersigned, an attorney of record, hereby certifies that on or before the hour of 5:00
p.m., this 17th day of March 2017, she electronically filed the foregoing document (Plaintiffs’
Motion to Reopen Case) with the Clerk of Court using the CM/ECF system, which will send
notification of such filing to the following:
Mr. James X. Bormes
Ms. Catherine P Sons
Law Office of James X. Bormes, P.C.
8 S. Michigan, Suite 2600
Chicago, IL 60603
[e-mail]
[e-mail]

/s/ Laura M. Finnegan

Laura M. Finnegan
Attorney for Plaintiffs
BAUM SIGMAN AUERBACH & NEUMAN, LTD.
200 West Adams Street, Suite 2200
Chicago, IL 60606-5231
Bar No.: 6204026
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
I:\731exc\Rite-Way\#24498\motion-reopen (2).lmf.df.wpd