Chicago Regional Council of Carpenters Pension Fund et al v. Bryn Mawr Flooring, Inc.

Filing 9

MOTION by Plaintiffs Chicago Regional Council of Carpenters Pension Fund, Chicago Regional Council of Carpenters Welfare Fund, Chicago and Northeast Illinois Regional Council of Carpenters Apprentice and Trainee Program, Labor/Management Union Carpentry Cooperation Promotion Fund for judgment Plaintiffs' Petition To Prove Up Damages And For Entry Of Final Judgment (McJessy, Kevin)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHICAGO REGIONAL COUNCIL OF
CARPENTERS PENSION FUND, et al.,
Case No. 15 CV 09386
Plaintiffs,
Judge Der-Yeghiayan

v.
BRYN MAWR FLOORING, INC., a
Pennsylvania corporation,

Magistrate Judge Valdez

Defendant.
PLAINTIFFS’ PETITION TO PROVE UP
DAMAGES AND FOR ENTRY OF FINAL JUDGMENT
This Court granted the plaintiffs Chicago Regional Council of Carpenters Pension Fund
et al.’s (“Trust Funds”) motion for a default order against defendant BRYN MAWR
FLOORING, INC. (“Bryn Mawr”) on December 16, 2015. See Docket Entry, Dec. 16, 2015,
Docket No. 8. In order to obtain a final judgment, the Trust Funds hereby submit this Plaintiffs’
Petition to Prove Up Damages and for Entry of Final Judgment (“Petition”). In support of their
Petition, Trust Funds state as follows:
I.

SUMMARY OF DAMAGES.
For the reasons explained more fully below, this Court should award the Trust Funds

$8,465.61 in damages, which includes (A) unpaid fringe benefit contributions in the amount of
$3,665.60, (B) interest in the amount of $116.99, (C) double liquidated damages in the amount of
$727.18, (D) auditors’ fees in the amount of $1,122.50, and (E) attorneys’ fees and costs of
$2,833.34.

II.

ARGUMENT.
A. Damages for Non-Union Subcontracting Liability.
Bryn Mawr is signatory to the Chicago Regional Council of Carpenters (“Union”). See

Declaration of J. Libby ¶3, Exhibit A. The Trust Funds conducted an audit of Bryn Mawr’s
books and records which revealed unpaid fringe benefit contributions in the amount of
$3,665.60. See Declaration of J. Libby ¶¶4-8, Exhibit A.
Under ERISA, Bryn Mawr is liable to the Trust Funds for any unpaid fringe benefit
contributions. ERISA states as follows:
In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce
section 1145 of this title in which a judgment in favor of the plan is awarded, the court
shall award the plan— (A) the unpaid contributions . . . .
See 29 U.S.C. §1132(g)(2)(A).
The audit report reveals that Bryn Mawr owes $3,665.60 in unpaid contributions for
failing to accurately report contribution hours for two employees. See Declaration of J. Libby
¶8, Exhibit A. A detailed breakdown of the unpaid fringe benefit contributions is attached as
Exhibit 1 to the declaration of J. Libby. Therefore, the amount due for unpaid fringe benefit
contributions is $3,665.60.
B. Interest.
Under ERISA, 29 U.S.C. §1132, Trust Funds are entitled to collect interest on the unpaid
contributions. Section 1132(g)(2)(B) provides as follows:
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce
section 1145 of this title in which a judgment in favor of the plan is awarded, the
court shall award the plan—
...
(B) interest on the unpaid contributions,
...
For purposes of this paragraph, interest on unpaid contributions shall be determined by
using the rate provided under the plan, or, if none, the rate prescribed under section 6621
of title 26.

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See 29 U.S.C. §1132(g)(2). And, section 6621 of title 26 provides as follows:
(2) Underpayment rate. The underpayment rate established under this section shall be
the sum of—
(A) the Federal short-term rate determined under subsection (b), plus
(B) 3 percentage points.
This is consistent with the trust agreements which also allow the Trust Funds to collect
interest on the amount due. See Decl. of J. Libby ¶9, Exhibit A.
Therefore, the Trust Funds are entitled to recover interest based on the statute. The
amount due as interest on the fringe benefit contributions is $116.99. See Declaration of J. Libby
¶11, Exhibit A. Accordingly, this Court should award the Trust Funds interest in the amount of
$116.99 pursuant to 29 U.S.C. §1132(g)(2).
C.

Liquidated Damages.

Under ERISA, 29 U.S.C. §1132, the Trust Funds are entitled to collect liquidated
damages on the unpaid contributions. Section 1132(g)(2)(C)(ii) provides as follows:
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to
enforce section 1145 of this title in which a judgment in favor of the plan is awarded,
the court shall award the plan—
...
(C) an amount equal to the greater of—
...
(ii) liquidated damages provided for under the plan in an amount not in excess of
20 percent (or such higher percentage as may be permitted under Federal or State
law) of the amount determined by the court under subparagraph (A),
This is consistent with the trust agreements which also allow the Trust Funds to collect
liquidated damages of 1.5% monthly on the amount due. See Decl. of J. Libby ¶9, Exhibit A.
The total liquidated damages calculated at 1.5% per month compounded and capped at
20% equal $727.18. See Decl. of J. Libby ¶11, Exhibit A.

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D.

Auditor’s Fees.

Under the terms of the Trust Agreements and the Area Agreement, a signatory employer is
liable for reasonable fees of auditors retained by the Trust Funds used to establish the amount of

delinquent contributions to the Trust Funds. See Declaration of J. Libby ¶12, Exhibit A.
Moreover, ERISA, 29 U.S.C. §1132, likewise provides that the Trust Funds are entitled
to recover auditors’ fees incurred to prove the amount of contributions owed:
ERISA itself grants the district court authority to award the plaintiffs their
reasonable attorney's fees and costs in successful actions to collect unpaid fringe
benefit contributions owed to multi-employer plans, 29 U.S.C. § 1132(g)(2)(D),
along with ‘such other legal or equitable relief as the court deems appropriate,’ id.
§ 1132(g)(2)(E). This court, among others, has construed the latter provision to
include an award of audit costs. Moriarty ex rel. Local Union No. 727, I.B.T.
Pension Trust v. Svec, 429 F.3d 710, 721 (7th Cir. 2005) (citing Operating Eng'rs
Pension Trust v. A-C Co., 859 F.2d 1336, 1343 (9th Cir. 1988)).
See Trustees of the Chicago Plastering Institute Pension Trust v. Cork Plastering Co., 570 F.3d
890, 902 (7th Cir. 2009).
The Trust Funds incurred $1,122.50 in auditors' fees for the audit of Bryn Mawr’s fringe
benefit contributions to the Trust Funds during the Audit Period. See Declaration of J. Libby
¶12, Exhibit A.
Accordingly, this Court should award the Trust Funds $1,122.50 in reasonable auditors’
fees for the audit of Bryn Mawr’s books and records to determine that Bryn Mawr owed unpaid
fringe benefit contributions.
E.

Attorneys’ Fees and Costs.

Under the terms of the Trust Agreements and the Area Agreement, Bryn Mawr is liable
for reasonable attorney fees incurred in collecting the delinquent contributions. See Declaration
of J. Libby ¶10, Exhibit A.

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In addition to Bryn Mawr’s contractual obligation to pay legal fees, Bryn Mawr has a
statutory obligation to pay attorneys’ fees and costs. Under ERISA 29 U.S.C. §1132, Trust
Funds are entitled to recover attorneys’ fees and costs incurred to collect the unpaid
contributions. Section 1132(g) provides as follows:
(g) Attorney’s fees and costs; awards in actions involving delinquent
contributions … (2) In any action under this subchapter by a fiduciary for or
on behalf of a plan to enforce section 1145 of this title in which a judgment in
favor of the plan is awarded, the court shall award the plan—.… (D)
reasonable attorney’s fees and costs of the action, to be paid by the
defendant …
See 29 U.S.C. §1132(g)(2) (emphasis added). Bryn Mawr is also liable for attorneys’ fees and
costs incurred by the Trust Funds to enforce any judgment entered in this matter. See Free v.
Briody, 793 F.2d 807, 808-09 (7th Cir. 1986).
Here the Trust Funds incurred $2,833.34 in attorneys’ fees and costs. As stated in the
affidavit and detailed billing statements accompanying this petition, the total fees and costs are
comprised of $2,040.00 for attorney time, $174.00 in paralegal time and $619.34 in costs. See
Declaration of K. McJessy ¶¶2,4, Exhibit B.
Billing statements are admissible to show the reasonableness of attorneys’ fees and costs
in ERISA cases. See Trustees of the Chicago Plastering Inst. Pension Trust, 570 F.3d at 903
(relying on attorneys “time records”); Chicago Regional Council of Carpenters Pension Fund v.
RCI Enterprises, Inc., 2011 U.S. Dist LEXIS *6-7 (N.D. Ill., July 20, 2011) (Feinerman, J.)
(relying on billing time records for award of attorneys’ fees).
Moreover, the fees charged here of $160/hour and $220/hour for attorney time are not
only incredibly reasonable but a great bargain and a below market rate compared to the rates
charged by other attorneys handling similar ERISA matters in the Northern District of Illinois.
As a matter of law, the Northern District of Illinois has recognized that hourly rates of $175 per

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hour to $250 per hour are reasonable rates for attorney time for ERISA litigation. See Trustees
of the Chicago Regional Council of Carpenters Pension Fund v. RCI Enterprises, Inc., 2011 U.S.
Dist. LEXIS *6 (N.D. Ill.) (holding that attorney rates of $180/hr for a junior attorney to $250/hr
for a partner are reasonable hourly rates for ERISA lawsuit by the Chicago Regional Council of
Carpenters); Board of Trustees of the Rockford Pipe Trades Indus. Pension Fund v. Fiorenza
Enters., 2011 U.S. Dist. LEXIS 28209, 21-22 (N.D. Ill. Mar. 18, 2011) (“the court finds that the
hourly rates [of $195, $210 and $235 per hour] . . . are reasonable” for fringe benefit trust funds
lawsuit against employer to collect unpaid contributions); Trustees of the Teamsters Union Local
No. 142 Pension Trust Fund v. Actin, Inc., 2010 U.S. Dist. LEXIS 103434, 20-21 (N.D. Ind.
Sept. 28, 2010) (awarding attorneys fees based on an hourly rate of $175.00 to $200.00 per hour
for attorneys’ time and $90 per hour for paralegal time); Divane v. Mitchell Sec. Sys., 2008 U.S.
Dist. LEXIS 27825 (N.D. Ill. Apr. 7, 2008) (“The court finds that the billing rates [of $220.00 to
240.00 for attorneys] are reasonable.”).
III.

CONCLUSION.
For the forgoing reasons, the Trust Funds respectfully request that this Court enter final

judgment for the Trust Funds in the amount of $8,465.61 as follows:
A.

$3,665.60 in unpaid contributions pursuant to the audit;

B.

$1,122.50 for auditor’s fees incurred by the Trust Funds to complete the audit of
Defendant’s books and records;

C.

$116.99 in interest pursuant to 29 U.S.C. § 1132(g)(2)(B);

D.

$727.18 in liquidated damages pursuant to 29 U.S.C. § 1132(g)(2)(C); and

E.

$2,833.34 in reasonable attorneys’ fees and costs the Trust Funds incurred in this
action pursuant to 29 U.S.C. § 1132(g)(1) and/or § 1132(g)(2)(D).

The Trust Funds shall also recover reasonable attorney’ fees and costs incurred by the Trust
Funds in enforcing this order and any such further relief as this Court deems appropriate. See

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Free v. Briody, 793 F.2d 807, 808-09 (7th Cir. 1986). A proposed order is attached hereto as
Exhibit C.

CHICAGO REGIONAL COUNCIL OF
CARPENTERS PENSION FUND et al.
By:
Kevin P. McJessy
MCJESSY, CHING & THOMPSON, LLC
3759 North Ravenswood, Suite 231
Chicago, Illinois 60613
[phone]
[phone] (facsimile)
[e-mail]

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s/ Kevin P. McJessy
One of Their Attorneys

CERTIFICATE OF SERVICE
I, Kevin P. McJessy, an attorney, certify that I caused the foregoing Plaintiffs’ Petition
to Prove Up Damages and for Entry of Final Judgment to be served upon
John Delia, President
Bryn Mawr Flooring, Inc.
113 W. Ridge Pike
Conshohocken, PA 19428
via U.S. Mail by depositing the same in the U.S. Mail depository located at 3759 N. Ravenswood
with postage prepaid on this 11th day of January 2016.

s/ Kevin P. McJessy
Kevin P. McJessy

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