02-4425.071-JCD June 11, 2007

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES T. SULLIVAN, not )

individually but as a Trustee of )

Plumbers’ Pension Fund, Local 130, )

U.A., et al., ) 

)

Plaintiffs, )

)

 v. ) No. 02 C 4425

)

JAMES DIFOGGIO d/b/a JAMES ) 

DIFOGGIO PLUMBING COMPANY, )

 ) 

Defendant. )

MEMORANDUM OPINION AND ORDER

Before the court is plaintiffs’ motion for entry of

supplemental judgment. This is an ERISA action for enforcement of

an arbitration decision and award that required James DiFoggio

Plumbing Company to make certain contributions to the plaintiffs’

funds. 

A short history of the case is in order. The original

arbitration award issued on February 15, 2002 and based on a

collective bargaining agreement required “James DiFoggio Plumbing

Company” to, among other things, report hours and pay contributions

for Michael DiFoggio (who ran the business at the time) for forty

hours each week beginning in March 2002. This case was filed in

June 2002, and plaintiffs later filed a motion for summary

judgment, which was granted. In December 2003, we entered judgment
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1

 Defendant did not file a response to this motion or appear on the

date when the motion was noticed and heard. 

in favor of plaintiffs and against defendant “James DiFoggio,

individually and d/b/a James DiFoggio Plumbing Company” in the

amount of $48,504.85. We further ordered defendant to timely

report a minimum of forty hours each week with respect to Michael

DiFoggio and pay to the funds contributions based on those hours at

the then-prevailing rates, including liquidated damages and any

interest that may be due. We retained jurisdiction to enforce the

judgment and defendant’s continuing obligations thereunder.

In September 2004, plaintiffs moved for entry of a

supplemental judgment order for the contributions that should have

been paid for Michael DiFoggio for the period of November 1, 2003

through May 31, 2004. The motion was granted, and judgment was

entered in favor of plaintiffs and against defendant in the amount

of $10,326.38.1

In late 2006, plaintiffs again moved for entry of a

supplemental judgment order. This time, plaintiffs seek

contributions (plus interest and liquidated damages) for Michael

DiFoggio for the period of June 1, 2004 through September 30, 2006

in the amount of $68,671.74, as well as attorney’s fees in the

amount of $15,154.19, for a total of $83,825.93. 

Defendant has two primary arguments in response to the motion.

The first is that the arbitration award does not bind him because
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it was entered against the corporation J. DiFoggio Plumbing

Company, Inc. and not James DiFoggio individually. This argument,

which defendant raises for the first time in the long history of

this proceeding, is rejected. The arbitration award was not

entered against “J. DiFoggio Plumbing Company, Inc.,” but against

“James DiFoggio Plumbing Company.” There is no indication in the

text of the award that the company is a corporation, and we know of

no presumption that the designation “company” implies corporate

status. Moreover, on June 10, 1993, James DiFoggio signed a

Memorandum Agreement with the plumbers’ union in which he agreed to

be bound by the collective bargaining agreement as president of

“James DiFoggio Plumbing Co.” That form agreement called for the

“Full Correct Name of Employer (Business).” (It also stated “Check

One: Sole Proprietorship___ Partnership___ Corporation ___”, but

this section was not completed.) (Complaint, Ex. A.) 

More importantly, even if the award could somehow be construed

as being entered against a corporation, it is clear that James

DiFoggio disregarded the corporate form through his admissions in

the instant case. In his answer to the complaint, defendant

referred to himself as “JAMES DIFOGGIO, d/b/a JAMES DIFOGGIO

PLUMBING COMPANY (hereinafter “DIFOGGIO”).” Defendant stated as

follows in pertinent part:

8. There was in effect on June 10, 1993, a written

Collective Bargaining Agreement between Union and

Defendant, which Agreement was subsequently extended from

time to time. True and correct copies of each Agreement
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between Union and Defendant are attached as Exhibit A.

ANSWER: DIFOGGIO admits the allegations contained in

paragraph 8 of the Complaint. 

 

9. Each Agreement requires Defendant to pay certain

contributions and deductions to Funds, Union, and

Plumbing Council based on the amount of work performed by

covered employees. 

ANSWER: DIFOGGIO admits the Collective Bargaining

Agreement (hereinafter referred to as the “CBA”) requires

payment of certain contributions from deductions but

denies that the CBA requires contributions and deductions

payable to the Plaintiffs for work performed by Mario

DiFoggio of which amount was included in the award of the

Joint Arbitration Board (JAB).

. . . 

13. The Decision and Award also required Defendant,

commencing with the month March, 2002, to report and

contribute 40 hours each week for Michael DiFoggio. 

ANSWER: DIFOGGIO admits the Decision and Award required

it to report and contribute 40 hours each week for

Michael DiFoggio but denies that the JAB has any

authority for such decisions based upon the CBA to

require DIFOGGIO to report and contribute 40 hours each

week from Michael DiFoggio unless Michael DiFoggio

actually works 40 hours each week.

14. The Decision and Award also required that, if

Defendant failed to pay the full amount of the Decision

and Award by March 15, 2002, Defendant must reimburse

Union and Funds for all attorneys’ fees and costs

incurred to enforce the Decision and Award.

ANSWER: DIFOGGIO admits the Decision and Award required

it to pay the full amount by March 15, 2002, but denies

that the Award was in fact correct in fact or in law and

therefore denies any responsibility for the payment of

the amount claimed or any attorney’s fees and costs which

may have been incurred by the Plaintiffs. 

(Answer, ¶¶ 8-9, 13-14 (emphasis added).) DiFoggio therefore

admitted that he, individually and doing business as James DiFoggio
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2

 In response to plaintiffs’ motion for summary judgment, defendant

contended that Michael DiFoggio was not a covered employee and that the

arbitration board thus lacked jurisdiction to require contributions for him. 

We rejected the argument because there was no dispute that defendant received

a copy of the award and failed to challenge the award within the ninety-day

limitations period prescribed by the Illinois Arbitration Act. The award had

become final after ninety days, and we held that plaintiffs were entitled to

enforce it in this court. 

Plumbing Company, entered into the collective bargaining agreement

and was bound by the arbitration award, which required him to

report forty hours per week for Michael DiFoggio and make

corresponding contributions.2 

In his surreply brief, defendant fails to address these

admissions that he, individually and doing business as the company,

was bound by the arbitration award, and for the most part abandons

his theory that only the corporation was bound. Instead, defendant

presses his second argument, which is that “James DiFoggio Plumbing

Company” no longer exists and that James DiFoggio no longer

operates a plumbing company, has no employees, and specifically

does not employ Michael DiFoggio. The precise issue, however, is

not whether Michael DiFoggio is currently employed by defendant,

but whether he was employed by defendant during the period of time

for which plaintiffs seek contributions--June 1, 2004 through

September 30, 2006. 

James DiFoggio and Michael DiFoggio have filed affidavits that

at least in part are relevant to this issue. Michael DiFoggio

states in his affidavit that “[a]t no time, during 2004 or 2005 was

I employed by J. DiFoggio Plumbing Company, Inc. or James DiFoggio
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in any manner whatsoever.” (Def.’s Resp., Ex. D, Aff. of Michael

DiFoggio, ¶ 1.) James DiFoggio states in his affidavit that “[a]t

no time during the years 2004 or 2005, did I individually, nor did

J. DiFoggio Plumbing Company, Inc., employ Michael DiFoggio in any

manner to perform plumbing services, or other services, on behalf

of J. DiFoggio Plumbing Company, Inc. or on my own behalf.”

(Def.’s Resp., Ex. E, Aff. of James DiFoggio, ¶ 4.) It is worth

noting that these statements do not address whether Michael

DiFoggio was employed by a successor entity operated by James

DiFoggio or whether Michael DiFoggio worked for James DiFoggio in

2006. 

Plaintiffs, on the other hand, have submitted monthly

contribution reports that the funds received from defendant for the

months of January, April, and May 2004 in which defendant himself

reported that Michael DiFoggio worked 140 hours for each of those

months. (Pls.’ Reply, Ex. 3.) Defendant does not address these

records in his surreply brief.

It appears, then, that an evidentiary hearing may be necessary

to resolve the issue of whether Michael DiFoggio was employed by

defendant from June 1, 2004 through September 30, 2006 or during

any portion of that time period. Accordingly, plaintiffs’ motion

for entry of supplemental judgment is entered and continued until

June 20, 2007 at 10:30 a.m., at which time a status hearing will be

held to discuss the need for an evidentiary hearing and possibly to
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schedule such a hearing. 

DATE: June 11, 2007

ENTER: ___________________________________________

John F. Grady, United States District Judge