Sheet Metal Workers Local 265 Welfare Fund et al v. M & J's Cooling, Inc.

Filing 17

MOTION by Plaintiffs Kevin J. Schell, Sheet Metal Workers Local 265 Educational Fund, Sheet Metal Workers Local 265 Industry Fund, Sheet Metal Workers Local 265 Pension Fund, Sheet Metal Workers Local 265 Savings Fund, Sheet Metal Workers Local 265 Supplemental Retirement Plan, Sheet Metal Workers Local 265 Welfare Fund, Sheet Metal Workers' International Association, Local Union No. 265 to reopen case for the Lmited Purpose of Enforcing the Terms of the Settlement Agreement, MOTION by Plaintiffs Kevin J. Schell, Sheet Metal Workers Local 265 Educational Fund, Sheet Metal Workers Local 265 Industry Fund, Sheet Metal Workers Local 265 Pension Fund, Sheet Metal Workers Local 265 Savings Fund, Sheet Metal Workers Local 265 Supple mental Retirement Plan, Sheet Metal Workers Local 265 Welfare Fund, Sheet Metal Workers' International Association, Local Union No. 265 for judgment Against Defendant and John Kapidis, Individually (Attachments: # 1 Exhibit)(Scanlon, Cecilia)

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

SHEET METAL WORKERS LOCAL 265
WELFARE FUND, et al.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
M & J’S COOLING, INC., an Illinois corporation, )
)
Defendant.
)

CIVIL ACTION
NO. 16 C 9825
JUDGE ELAINE E. BUCKLO

PLAINTIFFS' MOTION TO REOPEN CASE FOR THE LIMITED
PURPOSE OF ENFORCING THE TERMS OF THE SETTLEMENT
AGREEMENT AND ENTERING JUDGMENT AGAINST DEFENDANT
AND JOHN KAPIDIS, INDIVIDUALLY
NOW COME Plaintiffs, SHEET METAL WORKERS LOCAL 265 WELFARE 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 (entered into between the parties
on April 7, 2017) and entering judgment against Defendant, M & J’s Cooling, Inc., an Illinois
corporation, and John Kapidis, individually. 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 collectively known as the Sheet Metal
Workers Local 265 Fringe Benefit Funds, alleging, inter alia, that Defendant breached its obligations
under the terms of the collective bargaining agreements entered into with the Sheet Metal Workers
International Association, Local 265 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 5, 2017, an Agreed Order of Dismissal incorporating the terms for settlement

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

The Defendant and John Kapidis acknowledged and agreed that they owed the total

amount of $37,129.11 for contributions and liquidated damages for the time period February 2016
through September 2016, and audit contributions and liquidated damages for the time period April
1, 2013 through June 30, 2016, as well as attorneys’ fees from July 2016 to January 31, 2017, as
described in Paragraph 6 of the Settlement Agreement.
4.

The parties agreed that Defendant and John Kapidis would submit the amount set

forth in Paragraph 3 above by way of the payment of 26 monthly installments of $1,500.00 each,
with the 26th (final) installment of $239.34. The parties agreed to the following payment schedule:
Payment Number
1

Date
4/20/2017

Amount Due

Regular Report and Contribution

$1,500.00

March 2017

2

5/20/2017

$1,500.00

April 2017

3

6/20/2017

$1,500.00

May 2017

4

7/20/2017

$1,500.00

June 2017

5

8/20/2017

$1,500.00

July 2017

6

9/20/2017

$1,500.00

August 2017

7

10/20/2017

$1,500.00

September 2017

8

11/20/2017

9

12/20/2017

$1,500.00
1,500.00

October 2017
November 2017

2

Payment Number

Date

Amount Due
$1,500.00

Regular Report and Contribution
December 2017

10
11

1/20/2018
2/20/2018

$1,500.00

January 2018

12

3/20/2018

$1,500.00

February 2018

13

4/20/2018

$1,500.00

March 2018

14

5/20/2018

$1,500.00

April 2018

15

6/20/2018

$1,500.00

May 2018

16

7/20/2018

$1,500.00

June 2018

17

8/20/2018

$1,500.00

July 2018

18

9/20/2018

$1,500.00

August 2018

19

10/20/2018

$1,500.00

September 2018

20

11/20/2018

$1,500.00

October 2018

21

12/20/2018

$1,500.00

November 2018

22

1/20/2019

$1,500.00

December 2018

23

2/20/2019

$1,500.00

January 2019

24

3/20/2019

$1,500.00

February 2019

25

4/20/2019

$1,500.00

March 2019

26

5/20/2019

$239.34

April 2019

5.

Defendant agreed to remain current with respect to the submission of monthly

contribution reports and fringe benefit contributions that became due throughout the period of the
payment schedule.
6.

In the event Defendant failed to submit the payments as agreed in Paragraph 6 and

Exhibit A to the Promissory Note, or failed to timely submit current reports and contributions
due, the Defendant would be considered in default of the Settlement Agreement. Thereafter, the
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Plaintiff Funds would be entitled to file a motion in this Court to reinstate the case for the limited
purpose of entering judgment against Defendant and John Kapidis for all unpaid installments and
contributions and liquidated damages due under the Settlement Agreement and Promissory Note,
plus the Plaintiff Funds’ attorneys’ fees and costs incurred as a result of Defendant and John
Kapidis’s default and for enforcement of the Settlement Agreement.
7.

Defendant and John Kapidis failed to submit the first installment payment of

$1,500.00 due by April 20, 2017 and failed to submit Defendant’s monthly fringe benefit
contribution report and the contributions due thereon for March 2017. Although under no
obligation to do so, on May 15, 2017, Plaintiffs’ counsel sent an e-mail to John Kapidis
regarding the failure of the Defendant and John Kapidis to abide by the terms of the Settlement
Agreement. Plaintiffs’ counsel advised Mr. Kapidis that the installments due on April 20, 2017
and May 20, 2017 and the Defendant’s March 2017 report and contributions must be submitted
by May 20, 2017.
8.

On May 15, 2017, Mr. Kapidis responded to Plaintiffs’ counsel’s e-mail advising

that the Defendant’s reports and contributions for March and April 2017 were filed on-line. Mr.
Kapidis also advised that he thought the first installment of $1,500.00 was due by May 20, 2017.
9.

On May 19, 2017, Mr. Kapidis submitted only the first installment payment of

$1,500.00 by check no. 1213 drawn on the account of Aire Serv of Kankakee. The Plaintiff
Funds could not accept this check because Aire Serv of Kankakee is a company that is not
signatory to a collective bargaining agreement with the Sheet Metal Workers International
Association, Local 265.

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10.

As of the date of filing the instant Motion, Defendant and/or John Kapidis has not

paid the first and second installment of $1,500.00 due under the Promissory Note and Settlement
Agreement.
11.

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 entering judgment against the Defendant and John Kapidis, individually.
Specifically, Plaintiffs request:
A.

That judgment be entered in favor of Plaintiffs and against Defendant, M & J’s
Cooling, Inc., and John Kapidis, individually, to include the amount of $37,129.11, being the total amount remaining due for contributions, liquidated damages and
attorneys’ fees as set forth in the Promissory Note attached to the Settlement
Agreement.

B.

That judgment be entered in favor of Plaintiffs and against Defendant, M & J’s
Cooling, Inc., and John Kapidis, individually, to include an additional $3,043.50
in attorneys' fees incurred by the Plaintiffs in this matter since January 31, 2017,
which includes one (1) 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.

C.

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

/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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CERTIFICATE OF SERVICE
The undersigned, an attorney of record, hereby certifies that she electronically filed the
foregoing document (Motion to Reopen) with the Clerk of Court using the CM/ECF system, and
further certifies that I have mailed the above-referenced document by United States Mail to the
following non-CM/ECF participant on or before the hour of 5:00 p.m. this 31st day of May 2017:
Ms. Melissa Kapidis
Mr. John Kapidis
341 Kathy Drive
Bourbonnais, IL 60914

/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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