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

Filing 56

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 Amended Settlement Agreement and Release, 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' Lo cal 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 Illin ois 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 for judgment against Defendant Bosly Construction and Jasmin Bilich, individually (Attachments: # 1 Exhibit Amended Settlement Agreement and Release and Amended Judgment Note)(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' AMENDED MOTION TO REOPEN CASE FOR THE LIMITED
PURPOSE OF ENFORCING THE TERMS OF THE AMENDED 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 Amended Settlement Agreement and Release entered into between the
parties in August 2017, which incorporates the Amended Judgment Note, 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 (hereafter referred to as the “First Settlement Agreement and Release”).
3.

Pursuant to the First Settlement Agreement and Release, 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 2016.1
4.

In August 2017, Defendant and Bilich offered, and the Plaintiff Funds agreed to

accept, the total amount of $87,147.37, plus 9.5% interest, over the course of 12 months in
settlement of this matter (as set forth in Exhibit A of the Amended Judgment Note attached to the
Amended Settlement Agreement and Release (copy attached). Despite Bosly’s default under the first
Settlement Agreement and Release, the Plaintiff Funds agreed to waive the liquidated damages of

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Defendant and Bilich defaulted under the First Settlement Agreement and Release and the
Plaintiff Funds filed a motion to reopen this matter and enforce the First Settlement Agreement and
Release. Although under no obligation to do so, Plaintiff Funds agreed to amend the parties’ original
Settlement Agreement.
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$13,768.63 due for September 2015 through December 2016 upon satisfactory compliance with the
terms of the Amended Settlement Agreement and Release and the Amended Judgment Note.
5.

On March 2, 2018, an Amended Agreed Order of Dismissal was entered by this

6.

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

Court.

and fringe benefit contributions that may become due throughout the period of the payment schedule
set forth in Exhibit A of the Amended Judgment Note.
7.

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

Amended Settlement Agreement and Release and Exhibit A to the Amended Judgment Note attached
thereto, 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 Amended Settlement Agreement
and Release. Defendant shall have a period of 14 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 Amended
Settlement Agreement and Release. If Defendant has not cured its default within the agreed time
period, the Funds are 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
Amended 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 and Amended 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 Amended Settlement Agreement and
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Amended Judgment Note and Bilich’s liability shall not extend to any additional contributions and
liquidated damages that may become due.
8.

On February 10, 2018, Defendant and Bilich submitted the seventh installment

payment of $7,613.85 which was due by February 1, 2018. On or about March 15, 2018, the
Plaintiff Funds notified that Defendant’s seventh installment payment of $7,613.85 was returned by
its bank indicating “non sufficient funds.”
9.

Further, Defendant and Bilich have failed to submit the eighth installment of

$7,526.91, due by March 1, 2018, and the ninth installment of $7,496.66, due by April 1, 2018.
10.

Pursuant to Paragraph 10 of the Amended Settlement Agreement and Release, on

March 16, 2018, Plaintiffs’ counsel notified Defendant and Bilich’s counsel that the seventh
installment was returned NSF and that the Funds did not receive the eighth installment.
11.

On April 24, 2018, Plaintiffs filed their motion to reopen case for the limited purpose

of enforcing the Amended Settlement Agreement and Release and entering judgment against
Defendant and Jasmin Bilich, individually.
12.

On May 3, 2018, the parties advised the Court that additional time would be provided

to Defendant to cure its default.
13.

On May 23, 2018, Plaintiffs received a total of $22,637.42 representing the 7th, 8th

and 9th installments due February 1, 2018, March 1, 2018 and April 1, 2018. The parties agreed to
allow Defendant until June 15, 2018 to submit the 10th and 11th installments due May 1, 2018 and
June 1, 2018.

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14.

On June 15, 2018, Plaintiffs received a total of $14,811.87 representing the 10th and

11th installments. On July 9, 2018, Plaintiffs’ counsel was informed that this check was returned
by its bank indicating “non-sufficient funds.”
15.

As of July 26, 2018, Defendant’s 10th, 11th and 12th installments have not been

received and there remains a total of $21,786.24 due and owing under the Judgment Note Schedule.
16.

Plaintiffs have incurred additional reasonable attorneys’ fees totaling $6,585.00 since

February 28, 2017.
17.

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 Amended
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
$21,786.84, being the balance remaining due for contributions, liquidated damages
and attorneys’ fees as set forth in the Amended Judgment Note attached to the
Amended 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 $13,768.63 in
previously-waived liquidated damages.

C.

That judgment be entered in favor of Plaintiffs and against Defendant, Bosly
Construction, LLC and Jasmin Bilich, individually, to include an additional
$6,585.00 in attorneys' fees incurred by the Plaintiffs in this matter since February 28,
2017, which includes one (1.00) additional hour for the preparation of the instant
motion and one (1) additional hour of attorneys’ fees to appear for the hearing on the
instant motion.

D.

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]
I:\CLJ\Bosly Construction\amended motion to reopen case and enter judgment (3).cms.df.wpd

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CERTIFICATE OF SERVICE
The undersigned, an attorney of record, hereby certifies that on or before the hour of 4:00
p.m., this 31st day of July 2018, she electronically filed the foregoing document (Amended 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]
I:\CLJ\Bosly Construction\amended motion to reopen case and enter judgment (3).cms.df.wpd