IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LABORERS’ PENSION FUND and )

LABORERS’ WELFARE FUND OF THE )

HEALTH AND WELFARE DEPARTMENT )

OF THE CONSTRUCTION AND GENERAL )

LABORERS’ DISTRICT COUNCIL OF )

CHICAGO AND VICINITY, and JAMES S. )

JORGENSEN, Administrator of the Funds, )

)

Plaintiffs, )

) Case No. 11 C 7951

 v. )

) Judge John Z. Lee

CHICAGO ASPHALT PATCHING, INC., )

) Magistrate Judge Finnegan

Defendant. )

)

PLAINTIFFS’ MOTION FOR PROVE UP OF DAMAGES

Plaintiffs, Laborers’ Pension Fund and Laborers’ Welfare Fund of the Health and Welfare

Department of the Construction and General Laborers’ District Council of Chicago and Vicinity and

James S. Jorgensen (collectively the “Funds”), pursuant to Rule 55 of the Federal Rules of Civil

Procedure, by their attorneys, move for Judgment of Damages in Sum Certain against defendants

Chicago Asphalt Patching, Inc. (hereinafter the “Company”). In support of this Motion, plaintiffs,

by their attorneys state: 

 1. On November 8, 2011, plaintiffs filed a complaint under Sections 502(e)(1) and (2)

of the Employee Retirement Income Security Act, as amended, 29 U.S.C. §1132(e)(1) and (2);

Section 301(a) of the Labor Management Relations Act, as amended, 29 U.S.C. §185(a); and 28

U.S.C. §1331 alleging that at all material times the defendant has an obligation, arising from a

collective bargaining agreement to make contributions to plaintiffs’ Funds, to submit to an audit
upon demand and to obtain and maintain a surety bond. In this Complaint, plaintiffs specifically

alleged that defendant failed to report and pay contributions from June 16, 2011 to the present. 

Plaintiffs requested reliefincluded producing books and records for an audit upon plaintiffs’ request. 

2. The Company’s Registered Agent and President, Mark Hoffman, was personally served

with the summons and complaint on November 29, 2011, and the Company failed to answer. 

Plaintiffs attached proof of service to the plaintiffs’ Motion For Default And To Compel An Audit.

(Dk. #12). 

3. On March 23, 2012, the Court granted plaintiffs’ Motion for Default and to Compel an

Audit, and ordered defendant to submit to an audit as required by the Collective Bargaining

Agreement that Company president, Mark Hoffman, signed on June 16, 2011, and which was

attached to the Complaint. (Dk. #1)

4. On April 4, 2012, a copy of the Court’s order was personally served upon Mr. Hoffman,

at his residence at 1888 N. Trevino Trail, Vernon Hills, Illinois by special process server. Mr.

Hoffman failed to comply with the Court’s order to submit to an audit and to contact plaintiffs’

counsel, Sara S. Schumann. The proof of service was filed with plaintiffs’ Motion for a Rule to

Show Cause. (Dk. #16)

5. On May 3, 2012, the Court ordered Mr. Hoffman to appear on May 24, 2012 to show

cause why he should not be held in contempt of court. The Court’s order to appear was personally

served on Mr. Hoffman who did appear before the Court as ordered, on May 24, 2012, at which time

he agreed to comply with the Court’s previous orderto compel an audit of his Company’s books and

records. (Dk. #20)

6. As established by the Laborers’ Field Representative, John Bronson, the Company of

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Richard J. Wolf And Company, Inc. (“Wolf”), was selected to perform a review of the Company’s

books and records for the period between June 16, 2011 through March 31, 2012 for the Funds. (See

attached, Exhibit C, Bronson Affidavit at ¶4). Wolf’s audit report, dated July 27, 2012, shows that

the Company owes $53,426.77 in contributions, which includes $2,976.04 in unpaid union dues. 

(See Exhibit A, Audit Report).

5. According to the Collective Bargaining Agreement and the Trust Agreements to

which the defendant is bound, payment is also owed for liquidated damages in the amount of twenty

(20) percent of the unpaid or late contributions to the Welfare, Pension, and Training funds, and ten

(10) percent of the principal amount of delinquent contributions to the LDCLMCC, ISPA and

LECET funds, and for Union dues. As such, liquidated damages are owed in the amount of

$9,927.07 to the Welfare, Pension and Training funds, liquidated damages are owed in the amount

of $379.14 to LDCLMCC, ISPA and LECET funds and Union Dues Fund. Additionally, interest

is calculated at twelve (12) percent and is owed for all delinquencies excluding union dues. To date, 

$4,340.50 is owed in accumulated interest to date. (See Exhibit B, The Funds’ Audit Summary

Spreadsheet Report; Exhibit C, Bronson Affidavit at ¶5). 

6. The defendant is also obligated to pay $600.00 for the cost of the audit based on the

respective Trust Agreements to which it is bound. (See Exhibit A, Audit Report; Exhibit B, The

Funds’ Audit Summary Spreadsheet Report; Exhibit C, Bronson Affidavit at ¶4).

7. Additionally, plaintiffs are entitled to attorneys’ fees and costs under ERISA, 29

U.S.C.§1132(g)(2)(B). The attached affidavit of Sara Stewart Schumann establishes the amount of

attorneys’ fees incurred in this matter are $7,190.00 and $610.00 in costs, which consists of service

of process and filing fees. (See Exhibit D, Schumann Affidavit, and Exhibit 1, Attorney fee report).

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8. On July 30, 2012, plaintiffs’ counsel sent the auditor’s report to the Company with

a demand letter for the amounts due per the audit. This letter requested that the Company contact

plaintiffs’ counsel by August 10, 2012 with any objections (if any) to the audit report, so that the

Funds could give any objections due consideration. The Company failed to respond to this letter.

However, plaintiffs’ counsel contacted the Company’s president, Mark Hoffman, by telephone on

August 9 and 10 to discuss the audit findings, and again, by telephone on August 20 and 27 to th th th th

discuss possible payment options. To date, the Company has failed to submit its monthly reports

and payments as required by the Collective BargainingAgreement, and it has failed to remit payment

to the Funds per the audit findings. 

WHEREFORE, plaintiffs request that the Court enter a judgment order for damages in a

total amount of $76,473.48 to be entered against the defendant, Chicago Asphalt Patching, Inc., and

in favor of the Funds. Further, plaintiffs request that this Court order defendant to comply with its

obligation to report hours of covered employees on a monthly basis and pay current contributions

as they become due as required under the collective bargaining agreements and that, within 90 days

of the date of the order, provide written proof that it has obtained a surety bond to plaintiffs’ counsel,

Sara S. Schumann, Esq., Allison, Slutsky & Kennedy, P.C., 230 W. Monroe Street, Suite 2600,

Chicago, IL 60606.

Respectfully submitted,

 /s/ Sara S. Schumann 

One of plaintiffs’ attorneys

Karen I. Engelhardt

Sara S. Schumann

ALLISON, SLUTSKY & KENNEDY, P.C.,

230 W. Monroe Street, Suite 2600

Chicago, IL 60606

(312) 364-9400

August 29, 2012

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