Fox Valley Laborers' Health and Welfare Fund et al v. Hugh Henry Construction Inc. et al

Filing 16

MOTION by Plaintiffs Fox Valley Laborers' Health and Welfare Fund, Pat Shales, The Fox Valley Laborers' Pension Fund for judgment Plaintiffs' Motion For A Final Judgment On Count IV Of The Complaint Pursuant To Federal Rules Of Civil Procedure 54(b) And 56 (Rowe, Elizabeth)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FOX VALLEY LABORERS’ HEALTH AND
WELFARE FUND, THE FOX VALLEY
LABORERS’ PENSION FUND, and PAT
SHALES, Administrator of the Funds,
Plaintiffs,
v.
HUGH HENRY CONSTRUCTION INC.,
an Illinois corporation, and TRACEY
BIESTERFELDT, individually,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:16-cv-07203

Judge Shah

PLAINTIFFS’ MOTION FOR A FINAL JUDGMENT
ON COUNT IV OF THE COMPLAINT
PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 54(b) AND 56
Plaintiffs FOX VALLEY LABORERS’ HEALTH AND WELFARE FUND (“Welfare
Fund”), THE FOX VALLEY LABORERS’ PENSION FUND (“Pension Fund”) (collectively,
“the Funds”), and PAT SHALES, administrator of the Funds, through their attorneys, Dowd,
Bloch, Bennett, Cervone, Auerbach & Yokich, hereby respectfully move the Court for entry of
partial summary judgment against Defendant Hugh Henry Construction Inc. (“Defendant
Company”) on Count IV of the Complaint, and for a finding that the judgment is a final
judgment under Federal Rule of Civil Procedure 54(b). In support of this motion, the Plaintiffs
state:
1.

Plaintiffs filed their complaint on July 13, 2016. Complaint [Doc. No. 1]. The

Complaint contained the following ten counts (of which Count IV is at issue in this motion):
(a)

Count I seeks payment of delinquencies from Defendant Company as found in an
audit for the period of November 1, 2013 through October 31, 2015, for a total
principal amount of $130,576.33. Count I is brought under the Employee

Retirement Income Security Act of 1974, as amended (“ERISA”) Section 515, 29
U.S.C. § 1145, and the Labor Management Relations Act (“LMRA”) Section 301,
29 U.S.C. § 185, giving this Court jurisdiction over the case and making venue
proper pursuant to ERISA Sections 502(e)(1) and (2), and 29 U.S.C. § 1132(e)(1)
and (2), 29 U.S.C. § 1002(5), and Section 101 of the LMRA, 29 U.S.C. § 152(2).
(b)

Count II seeks a finding that Defendant Company and Defendant Tracey
Biesterfeldt (“Biesterfeldt”) violated the Illinois Wage Payment and Collection
Act by making payroll deductions from employees’ wages for union dues and/or
other union fee obligations for the period of November 1, 2013 through October
31, 2015, and failing to remit those amounts to the Construction and General
Laborers’ District Council of Chicago and Vicinity (“District Council”). The
District Council has authorized the Funds to serve as collection agents on its
behalf for purposes of collecting amounts due to it under the Funds’ Complaint.
This Court has supplemental jurisdiction over Count II, which alleges a state law
claim, pursuant to 28 U.S.C. § 1367, and venue is properly vested in this Court
pursuant to 28 U.S.C. § 1391(b).

(c)

Count III seeks a finding of conversion against Defendant Company and
Biesterfeldt for making payroll deductions from employees’ wages for union dues
and/or other union fee obligations for the period of November 1, 2013 through
October 31, 2015, and failing to remit those amounts to the District Council,
thereby appropriating that money for their own use and benefit. Jurisdiction over
Count III is based on 28 I.S.C. § 1367 and venue is proper pursuant to 28 U.S.C. §
1391(b).

(d)

Count IV seeks payment of delinquencies from Defendant Company for unpaid
contributions owed to the Funds for the month of March 2016, and is brought
pursuant to identical provisions of the LMRA and ERISA as alleged in Count I.

(e)

Count V is identical to Count II but concerns wage deductions made in March
2016.

(f)

Count VI is identical to Count III but concerns wage deductions made in March
2016.

(g)

Count VII is identical to Count IV but concerns unpaid contributions owed for the
months of May 2016 to the present.

(h)

Count VIII is identical to Count V but concerns wage deductions made from May
2016 to the present.

(i)

Count IX is identical to Count VI but concerns wage deductions made from May
2016 to the present.

2

(j)

Count X seeks to pierce Defendant Company’s corporate veil and enforce
Defendant Company’s liability against Biesterfeldt as Defendant Company’s sole
and/or majority shareholder. Jurisdiction over Count X is based on 28 I.S.C. §
1367 and venue is proper pursuant to 28 U.S.C. § 1391(b).

2.

Defendants appeared on August 17, 2016 (Appearances [Doc. Nos. 12 and 13])

and filed a motion for an extension of time until September 1, 2016 to answer (Motion for
Extension [Doc. No. 14]).
3.

Since the Funds believe that the material facts underlying Count IV of the

Complaint are undisputed, and since there is no just reason for a delay in resolving the claim
brought under Count IV, the Funds bring this motion for summary judgment on Count IV of the
Complaint and request that the Court enter a final judgment on that count pursuant to Federal
Rule of Civil Procedure 54(b), which permits the Court to enter final judgment on less than all of
the claims where “there is no just reason for delay.”
4.

For the reasons described in the attached Memorandum of Law, the Court should

grant the Funds’ motion and enter a final judgment against Defendant Company on Count IV of
the Complaint in the amount of $81,536.52, plus attorneys’ fees and costs.
WHEREFORE, Plaintiffs FOX VALLEY LABORERS’ HEALTH AND WELFARE
FUND, THE FOX VALLEY LABORERS’ PENSION FUND (collectively, “the Funds”), and
PAT SHALES, Administrator of the Funds, request entry of a final judgment against Defendant
HUGH HENRY CONSTRUCTION INC. on Count IV of the Complaint, in the amount of
$81,536.52, and award the Funds their attorneys’ fees and costs.
Respectfully submitted,
/s/ Elizabeth L. Rowe
Elizabeth L. Rowe
One of Plaintiffs= Attorneys

3

J. Peter Dowd (#0667552)
Josiah A. Groff (#6289628)
Elizabeth L. Rowe (#6316967)
DOWD, BLOCH, BENNETT, CERVONE,
AUERBACH & YOKICH
8 South Michigan Avenue, 19th Floor
Chicago, Illinois 60603
[phone]
August 22, 2016

4