Central Laborers' Pension Fund et al v. Bosly Construction, LLC

Filing 30

MOTION by Plaintiffs Central Laborers' Pension Fund, Central Laborers' Pension Supplemental Fund, Illinois Laborers' and Contractors Joint Apprenticeship & Training Trust Fund, Industry Advancement Fund, Laborers' Local Union No. 32, Market Promotion Fund, North Central Illinois Laborers' Health & Welfare Fund, North Central Illinois Laborers' Work Dues Fund, North Central Illinois Laborers-Employers Cooperation and Education Trust, North Central Illinois Midwest R egion Foundation for Fair Contracting, North Central Illinois Vacation Fund, North Central Midwest Region Organizing Committee, Northern Illinois Annuity Fund, Northern Illinois Laborers' Welfare Fund to reopen case , MOTION by Plaintiff s Central Laborers' Pension Fund, Central Laborers' Pension Supplemental Fund, Illinois Laborers' and Contractors Joint Apprenticeship & Training Trust Fund, Industry Advancement Fund, Laborers' Local Union No. 32, Market Promotio n Fund, North Central Illinois Laborers' Health & Welfare Fund, North Central Illinois Laborers' Work Dues Fund, North Central Illinois Laborers-Employers Cooperation and Education Trust, North Central Illinois Midwest Region Foundation for Fair Contracting, North Central Illinois Vacation Fund, North Central Midwest Region Organizing Committee, Northern Illinois Annuity Fund, Northern Illinois Laborers' Welfare Fund to enforce the terms of the Settlement Agreement and Release< /i>, MOTION by Plaintiffs Central Laborers' Pension Fund, Central Laborers' Pension Supplemental Fund, Illinois Laborers' and Contractors Joint Apprenticeship & Training Trust Fund, Industry Advancement Fund, Laborers' Local Unio n No. 32, Market Promotion Fund, North Central Illinois Laborers' Health & Welfare Fund, North Central Illinois Laborers' Work Dues Fund, North Central Illinois Laborers-Employers Cooperation and Education Trust, North Central Illinois Midw est Region Foundation for Fair Contracting, North Central Illinois Vacation Fund, North Central Midwest Region Organizing Committee, Northern Illinois Annuity Fund, Northern Illinois Laborers' Welfare Fund for judgment against Defendant Bosly Construction, LLC and Jasmin Bilich, Individually (Attachments: # 1 Exhibit Exhibits 1 - 2)(Scanlon, Cecilia)

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

CENTRAL LABORERS’ PENSION
FUND, et al.,
Plaintiffs,
vs.
BOSLY CONSTRUCTION, LLC,
an Illinois limited liability company,
Defendant.

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CIVIL ACTION
NO. 16 C 4455
JUDGE ROBERT M. DOW, JR.

PLAINTIFFS' MOTION TO REOPEN CASE FOR THE LIMITED
PURPOSE OF ENFORCING THE TERMS OF THE SETTLEMENT
AGREEMENT AND RELEASE AND ENTERING JUDGMENT AGAINST
DEFENDANT AND JASMIN BILICH, INDIVIDUALLY
NOW COME Plaintiffs, CENTRAL LABORERS’ PENSION FUND, et al., by their
attorneys, and move the Court for the entry of an order reopening this action for the limited purpose
of enforcing the terms of the Settlement Agreement and Release (entered into between the parties
on or about May 1, 2017) and entering judgment against Defendant, Bosly Construction, LLC, an
Illinois limited liability company (“Defendant” or “Bosly”), and Jasmin Bilich, individually
(“Bilich”). In support of the 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 known as the Central Laborers’ Pension,
Annuity and Welfare Funds, alleging, inter alia, that Defendant breached its obligations under the
terms of the collective bargaining agreements entered into with Laborers’ Local Union No. 32 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 16, 2017, an Agreed Order of Dismissal incorporating the terms for

settlement agreed to by the parties as set forth in the Settlement Agreement and Release was entered
by this Court (a copy of the Agreed Order of Dismissal is attached hereto as Exhibit 1).
3.

Defendant and Bilich agreed that they owed the total amount of $168,207.80 in

contributions and $13,768.63 in liquidated damages for September 2015 through December 2016.
After application of payments totaling $67,037.35, Defendant and Bilich continued to owe
$114,939.08, plus a shortage of $649.80 for August 2016, as described in Paragraph 2 of the
Settlement Agreement (a copy of the Settlement Agreement and Release is attached hereto as Exhibit
2).
4.

Defendant and Bilich agreed they owed $2,078.48 in contributions, $207.85 in

liquidated damages and $1,811.20 in audit fees for the audit period June 1, 2014 through September
30, 2016, as described in Paragraph 4 of the Settlement Agreement.
5.

Defendant and Bilich agreed they owed $4,771.00 incurred by the Plaintiff Funds in

attorneys’ fees through February 28, 2017, as described in Paragraph 5 of the Settlement Agreement.
6.

Defendant and Bilich offered, and the Plaintiff Funds agreed to accept, the total

amount of $109,424.98, plus 9.5% interest, over a period of ten months in settlement of this matter
(as set forth in Exhibit A of the Judgment Note attached to the Settlement Agreement and Release).
Upon final payment of this settlement amount, the Plaintiff Funds agreed to waive the liquidated
damages of $13,768.63 due for September 2015 through December 2016.
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7.

Defendant agreed to remain current with respect to its submission of monthly reports

and fringe benefit contributions that may become due throughout the period of the payment schedule.
8.

In the event Defendant and Bilich failed to submit the payments as agreed in

Paragraph 6 and set forth in Exhibit A to the Judgment Note, or failed to timely submit current
reports and contributions as they become due during the payment schedule, Defendant shall be
considered in default of the Settlement Agreement. Defendant shall have a period of 30 days from
the date of said default to cure its default. As a courtesy, Plaintiff Funds and/or their attorney would
notify Defendant and its attorneys that the Plaintiff Funds are aware of said default and may take
action to enforce the Settlement Agreement. If Defendant has not cured its default within the agreed
time period, the Funds shall be entitled to file a motion in this federal court to reopen the case for
the limited purpose of entering judgment against Defendant and Bilich for all unpaid installments
due under the Judgment Note, the waived liquidated damages in the amount of $13,768.63 and the
Funds’ reasonable attorneys’ fees and costs incurred as a result of enforcing the Settlement
Agreement. The parties further agreed that the Plaintiff Funds may request that judgment be entered
against Defendant only for the additional contributions and liquidated damages that may be owed
during the course of the Settlement Agreement and Judgment Note and Bilich’s liability shall not
extend to any additional contributions and liquidated damages that may become due.
9.

On or about March 29, 2017, Defendant and Bilich submitted the down payment of

$20,000.00 and on or about April 26, 2017 submitted the first installment payment of $11,474.05
due by May 1, 2017. As of June 6, 2017, Defendant and Bilich have failed to submit the second
installment payment of $10,577.46, which was due by June 1, 2017.

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10.

On or about May 16, 2017, Plaintiffs’ counsel was notified by Plaintiff Funds that the

$20,000.00 down payment and first installment of $11,474.05 were returned by its bank for nonsufficient funds. Plaintiffs’ counsel sent an e-mail to Defendant and Bilich’s attorney regarding the
returned checks and requesting a replacement in the form of a certified check, otherwise she would
have to return to court to enforce the terms of the Settlement Agreement.
11.

As of the date of filing the instant Motion, Defendant and/or Bilich have not

submitted a replacement check for the down payment of $20,000.00 and first installment of
$11,474.05, which were returned NSF, and has failed to submit the second installment of
$10,577.46, which was due by June 1, 2017 under the Judgment Note and Settlement Agreement.
12.

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 Settlement
Agreement and Release and entering judgment against the Defendant and Bilich, individually.
Specifically, Plaintiffs request:
A.

That judgment be entered in favor of Plaintiffs and against Defendant, Bosly
Construction, LLC and Jasmin Bilich, individually, to include the amount of
$91,551.81, being the total amount remaining due for contributions, liquidated
damages and attorneys’ fees as set forth in the Judgment Note attached to the
Settlement Agreement and Release.

B.

That judgment be entered in favor of Plaintiffs and against Defendant, Bosly
Construction, LLC and Jasmin Bilich, individually, to include an additional
$2,767.50 in attorneys' fees incurred by the Plaintiffs in this matter since February 28,
2017, which includes one and one-quarter (1.25) additional hours for the preparation
of the instant motion and one (1) additional hour of attorneys’ fees to appear for the
hearing on the instant motion.

C.

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

/s/ Cecilia M. Scanlon
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Cecilia M. Scanlon
Attorney for Plaintiffs
BAUM SIGMAN AUERBACH & NEUMAN, LTD.
200 West Adams Street, Suite 2200
Chicago, IL 60606-5231
Bar No.: 6288574
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]

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CERTIFICATE OF SERVICE
The undersigned, an attorney of record, hereby certifies that on or before the hour of 5:00
p.m., this 6th day of June 2017, she electronically filed the foregoing document (Motion to Reopen)
with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the
following:
Ms. Kathleen M. Cahill
Allocco Miller & Cahill, P.C.
20 N. Wacker Drive, Suite 3517
Chicago, IL 60606-2806
[e-mail]

/s/ Cecilia M. Scanlon

Cecilia M. Scanlon
Attorney for Plaintiffs
BAUM SIGMAN AUERBACH & NEUMAN, LTD.
200 West Adams Street, Suite 2200
Chicago, IL 60606-5231
Bar No.: 6288574
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
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