IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

Midwest Operating Engineers Welfare )

Fund, et al., )

) Case No. 20-cv-00435

Plaintiffs, )

) Judge: Gary Feinerman

vs. )

) Magistrate Judge: Gabriel A. Fuentes

Brandon Excavating Inc. an Indiana 

corporation; and Michael Szarmach, an 

Individual;

) 

) 

)

)

Defendants. )

PLAINTIFFS’ EMERGENCY MOTION FOR PRE-JUDGMENT ATTACHMENT 

 Plaintiffs Midwest Operating Engineers Welfare Fund; Midwest Operating Engineers 

Pension Trust Fund; Midwest Operating Engineers Retirement Enhancement Fund; Operating 

Engineers Local 150 Apprenticeship Fund; Local 150 IUOE Vacation Savings Plan (collectively 

“the Funds”); Construction Industry Research and Service Trust Fund (“CRF”); and International 

Union of Operating Engineers, Local 150, AFL-CIO (hereafter, “Local 150” or “the Union”), 

move pursuant to Fed. R. Civ. P. 64 and 735 ILCS 5/4–101(1) to issue a pre-judgment attachment 

to the property of Defendants Brandon Excavating, Inc., an Indiana corporation (“Brandon”), and 

Michael Szarmach, an Individual (“Szarmach”), in the above-captioned matter. In support of their 

motion, Plaintiffs state as follows: 

1. On January 20, 2020, Plaintiffs filed their Complaint against Defendants Brandon 

Excavating Inc., an Indiana corporation (“Brandon”), and Michael Szarmach, an Individual 

(“Szarmach”) (Doc. #1). Plaintiffs alleged that Brandon breached its contractual obligations when 

it failed to submit to Plaintiffs certain contribution and dues remittance reports, fringe benefit 

contributions, and union dues (Complaint ¶ 9, Doc. #1 at PageID #3). 

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2. In their Answer to Plaintiffs’ Complaint filed February 24, 2020, Defendants 

admitted to all the allegations establishing a violation of their contribution obligation to the Funds 

(Defendants’ Answer to Plaintiffs’ Complaint, Count I, “Suit for Delinquent Contributions,” ¶¶ 1-

14, Doc. #16 at PageID #144-148), except for the dollar amount claimed (id. ¶ 15, Doc. #16 at 

PageID #148). Defendants likewise admitted to liability in Plaintiffs’ claims for “Breach of 

Payment Plan” (id., Count II, ¶¶ 1-13, Doc. #16 at PageID #148-149), as well as the “Suit to 

Enforce Personal Guarantee” (id., Count III, ¶¶ 1-14, Doc. #16 at PageID #149-150), and the “Suit 

to Collect CRF Contributions” (id., Count IV, ¶¶ 1-12, Doc. #16 at PageID #151). Defendants 

denied only the alleged calculation of the dollar amount owed (id., Count II, ¶ 14; Count III, ¶ 15; 

and Count IV, ¶ 13, Doc. #16 at PageID #148, 149, 150-151). 

3. On March 1, 2021, Plaintiffs filed their Motion for Summary Judgment and 

corresponding 56.1 Statement of Material Facts and brief (Doc. #46-48). On March 2, 2021, this 

Court ordered that Defendants shall respond to Plaintiffs’ Motion for Summary Judgment and 56.1 

Statement of Material Facts by April 1, 2021 (Doc. #49). Defendants have not yet filed their 

response as of the date of this Motion. 

4. Federal law permits pre-judgment attachment “in the manner provided by the law 

of the state in which the district court is held.” Fed. R. Civ. P. 64. Under Illinois law, a creditor 

with a claim exceeding $20.00 may attach property of the debtor where the debtor is not a resident 

of Illinois. 735 ILCS 5/4–101(1); see also M.S. Distrib. Co. v. Web Recs., Inc., 2003 WL 

21267094, at *1 (N.D. Ill. May 30, 2003). “[R]elief can be afforded to [Plaintiffs] under the Illinois 

attachment statute even though the property in issue is located outside of Illinois.” Id. at *2. “[T]he 

purpose of the prejudgment attachment rules is to bring assets within the control of the Court 

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before there is the opportunity for them to be dissipated or otherwise rendered unavailable to 

satisfy a judgment.” Id. at *4. 

5. On information and belief, Defendants Brandon and Szarmach have contracted 

with Don Smock Auction Company, Inc. (Commercial Real Estate – Crown Point, IN, Don Smock 

Auction Company, Inc., https://dsaauctions.hibid.com/catalog/265098/commercial-real-estate---

crown-point--in/ [last visited Mar. 31, 2021]) on April 8, 2021, at 12:00 p.m. Central Standard 

Time, to sell at auction three (3) parcels of land. 

6. Upon information and belief, two of the parcels of land are owned personally by 

Defendant Szarmach (Exhibit A) and the remaining parcel is owned by Big Iron Holdings, LLC 

(Exhibit B), a property holding corporation owned by Szarmach (Exhibit C). All three parcels of 

land are advertised on a brochure found on Don Smock Auction Company, Inc.’s website 

simultaneously with various pieces of construction equipment, equipment attachments, vehicles, 

and accessories (Exhibit D). 

7. Pursuant to 735 ILCS 5/4–101(1), Plaintiffs seek to attach the real property: (1) 

1200 Prairie Court, Crown Point, Indiana; and (2) 995 Hub Court, Crown Point, Indiana; and 

earnings of Defendants Brandon, Szarmach, including all proceeds from the sale thereof, which 

are currently in possession of Defendants and/or Don Smock Auction Company, Inc. or at the 

auction site. 

8. Real property transaction records show that Defendant Szarmach paid $19,500.00 

on November 10, 2016 for the 995 Hub Court, Crown Point, Indiana parcel of land (Exhibit E). 

The size of this undeveloped parcel of land is 2.42 acres and the assessed valuation as recent as 

2019 was $8,400.00 (Exhibit A at 1), in other words approximately 43.1 percent of the purchase 

price. 

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9. The Funds have been unable to identify a recent purchase price for parcel located 

at 1200 Prairie Court, Crown Point, Indiana. However, the 2019 assessed valuation of the parcel, 

which sits adjacent to the 995 Hub Court, Crown Point, Indiana parcel and is likewise undeveloped 

was assessed for $11,400.00 (Exhibit A at 6). The Funds believe it is reasonable to assume that if 

the 2019 valuation price of the 995 Hub Court parcel was approximately 43.1 percent of the 

purchase price, then the estimated purchase price for the 1200 Prairie Court parcel is approximately 

$26,450.00 ($11,400 assessed valuation is approximately 43.1 percent of $26,450). For both 

parcels, Plaintiffs estimate the property value to be no less than $45,950.00 ($19,500.00 + 

$26,450.00 = $45,950.00). 

10. In support of its Motion, Plaintiffs submit the affidavit of Thomas M. Bernstein 

(attached hereto as Exhibit F). 

11. Plaintiffs are required to submit a bond in the amount of twice of the amount 

attached (i.e. $45,950.00 x 2 = $91,900.00) (attached hereto as Exhibit G). 

12. An emergency exists due to the circumstances set forth in Paragraphs 1 through 11 

above. 

13. Good cause exists for the immediate issuance of this Court’s Order of Pre-Judgment 

Attachment. 

 WHEREFORE, Plaintiffs respectfully request that, after review of this Motion and after 

conducting a hearing on this matter, this Court issue its Order of Pre-Judgment Attachment, 

approving the written undertakings submitted herewith by Plaintiffs, and for all other just and 

proper relief in the premises. 

Dated: April 5, 2021 Respectfully submitted, 

 By: /s/ James Connolly, Jr. 

 One of the Attorneys for Plaintiffs 

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Attorneys for the Funds and CRF: Attorneys for Local 150:

Dale D. Pierson (dpierson@local150.org)

Elizabeth A. LaRose (elarose@local150.org)

James Connolly, Jr. (jconnolly@local150.org)

Institute for Worker Welfare, P.C. 

6140 Joliet Road 

Countryside, IL 60525 

Ph: (708) 579-6663 

Fax: (708) 588-1647

Dale D. Pierson (dpierson@local150.org)

Elizabeth A. LaRose (elarose@local150.org)

James Connolly, Jr. (jconnolly@local150.org) 

Local 150 Legal Dept. 

6140 Joliet Road 

Countryside, IL 60525 

Ph: (708) 579-6663 

Fax: (708) 588-1647

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CERTIFICATE OF SERVICE 

 The undersigned, an attorney of record, hereby certifies that on April 5, 2021, he 

electronically filed the foregoing with the Clerk of Court using the CM/CM/ECF system which 

sent notification to the following: 

Megan M. Moore (mmm@alloccomiller.com)

Kathleen Marie Cahill (kmc@alloccomiller.com)

Todd Abraham Miller (tam@alloccomiller.com)

Allocco, Miller & Cahill, P.C. 

20 N. Wacker Drive, Suite 3517 

Chicago, Illinois 60606 

 By: /s/ James Connolly, Jr. 

 One of the Attorneys for Plaintiffs 

Attorneys for the Funds and CRF: Attorneys for Local 150:

Dale D. Pierson (dpierson@local150.org)

Elizabeth A. LaRose (elarose@local150.org)

James Connolly, Jr. (jconnolly@local150.org)

Institute for Worker Welfare, P.C. 

6140 Joliet Road 

Countryside, IL 60525 

Ph: (708) 579-6663 

Fax: (708) 588-1647

Dale D. Pierson (dpierson@local150.org)

Elizabeth A. LaRose (elarose@local150.org)

James Connolly, Jr. (jconnolly@local150.org) 

Local 150 Legal Dept. 

6140 Joliet Road 

Countryside, IL 60525 

Ph: (708) 579-6663 

Fax: (708) 588-1647

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