UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CENTRAL LABORERS’ PENSION FUND, )

NORTH CENTRAL ILLINOIS LABORERS’ )

 HEALTH AND WELFARE FUND, )

NORTHERN ILLINOIS & IOWA LABORERS’ )

 HEALTH & WELFARE FUND, )

NORTHERN ILLINOIS LABORERS’ ANNUITY FUND, )

ILLINOIS LABORERS AND CONTRACTORS JOINT )

 APPRENTICESHIP & TRAINING TRUST FUND, )

NORTH CENTRAL LABORERS-EMPLOYERS )

 COOPERATION AND EDUCATION TRUST, )

CENTRAL ILLINOIS LABORERS-EMPLOYERS )

 COOPERATION AND EDUCATION TRUST, )

GREAT PLAINS LABORERS’ VACATION FUND, )

MIDWEST REGION FOUNDATION FOR FAIR )

 CONTRACTING, )

MIDWEST REGION ORGANIZATION COMMITTEE, )

and the GREAT PLAINS LABORERS’ DISTRICT )

 COUNCIL WORKING DUES CHECK OFF FUND )

)

Plaintiffs, )

v. )

)

ABARI CONSTRUCTION, INC., )

an Illinois corporation, and )

MIGUEL DIGIOIA, individually, )

)

Defendant(s). )

COMPLAINT

Plaintiffs Central Laborers’ Pension Fund, et al. (collectively “Plaintiff Funds”), by their 

attorneys, complain against Defendants ABARI CONSTRUCTION, INC. and MIGUEL DIGIOIA

as follows: 

COUNT I

against

ABARI CONSTRUCTION, INC.

(Claim under ERISA for delinquent employee fringe benefit contributions)

1. This action arises under the Employee Retirement Income Security Act of 1974, as

amended, 29 U.S.C. §§ 1132, 1145 (“ERISA”); the Labor Management Relations Act, as amended, 

29 U.S.C. § 185(a) (“LMRA”); 28 U.S.C. § 1331; and federal common law. 

20-cv-04183 

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2. Plaintiff Funds are multiemployer pension funds, welfare funds, apprentice funds, 

labor-management committees, and related funds established pursuant to collective bargaining 

agreements between, on the one hand, the Laborers International Union of North America (the 

“Union”) and local unions and district councils affiliated with the Union, and, on the other hand, 

certain employers and employer associations. The Union and its affiliated local unions and district 

councils are labor organizations within the meaning of the LMRA, 29 U.S.C. § 152(5), representing 

employees in an industry affecting commerce as defined by the LMRA, 29 U.S.C. § 185(a). 

3. Plaintiff Funds receive fringe benefit contributions and dues payments from certain 

employers pursuant to collective bargaining agreements between, on the one hand, the Union and 

district councils and local unions affiliated with the Union, and, on the other hand, certain employer 

associations and employers, all on behalf of employees covered by the collective bargaining 

agreements. The Plaintiff Funds’ right to receive fringe benefit contributions and dues payments 

also arises pursuant to participation agreements between the Plaintiff Funds and employers. 

4. Plaintiffs Central Laborers’ Pension Fund is the authorized collection agents for the 

other Plaintiff Funds with respect to fringe benefit contributions and dues payments.

5. ABARI CONSTRUCTION, INC. is an Illinois corporation doing business in (and 

with its principle place of business in) the Northern District of Illinois. Venue in this district is 

proper under ERISA, 29 U.S.C. § 1132(e)(2); and 28 U.S.C. § 1391(b). ABARI 

CONSTRUCTION, INC. is an “employer” and a “party-in-interest” as those terms are defined by, 

respectively, Sections 3(5) and 3(14)(C) of ERISA, 29 U.S.C. §§ 1002(5) and 1002(14)(C). 

6. ABARI CONSTRUCTION, INC. became a party to and bound by collective 

bargaining agreements with the Union (and/or one or more district councils and local unions 

affiliated with the Union) by virtue of its execution of one or more memorandum of agreement or 

other collective bargaining agreements. Copies of signature pages of such collective bargaining 

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agreements are attached as Exhibit A. ABARI CONSTRUCTION, INC. has never terminated the 

collective bargaining agreements and they remain in effect. 

7. By virtue of certain provisions contained in the collective bargaining agreement(s), 

ABARI CONSTRUCTION, INC. became a party to and bound by the Plaintiff Funds’ trust

agreements.

8. ABARI CONSTRUCTION, INC. became a party to and bound by one or more 

participation agreements with the Plaintiff Funds. Copies of such participation agreements are 

attached as Exhibit B. ABARI CONSTRUCTION, INC. has never terminated the participation 

agreements and they remain in effect. 

9. By virtue of certain provisions contained in the participation agreement(s), ABARI 

CONSTRUCTION, INC. became a party to and bound by the Plaintiff Funds’ trust agreements. 

10. ABARI CONSTRUCTION, INC. became a party to and bound by the collective 

bargaining agreements, participation agreements and trust agreements by virtue of its signing and 

submitting (and certain provisions contained in) employer contribution report forms to the Plaintiff 

Funds.

11. ABARI CONSTRUCTION, INC. became a party to and bound by the collective 

bargaining agreements, participation agreements and trust agreements by virtue of its withholding 

of (some but not all) payroll deductions and dues consistent with the collective bargaining 

agreements, participation agreements, and trust agreements.

12. ABARI CONSTRUCTION, INC. became a party to and bound by the collective 

bargaining agreements, participation agreements and trust agreements by making (some but not all) 

employee fringe benefit contributions and dues payments to the Plaintiff Funds. 

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13. Under the terms of the collective bargaining agreements, participation agreements 

and trust agreements, ABARI CONSTRUCTION, INC. is required to make fringe benefit 

contributions and dues payments to the Plaintiff Funds on behalf of employees performing work 

covered by the collective bargaining agreement; the contributions and dues are required to be at the 

hourly rates indicated in the collective bargaining agreement and participation agreements. Under 

the terms of the agreements, ABARI CONSTRUCTION, INC. is also required to submit monthly 

remittance reports identifying, among other things, the employees covered under the collective 

bargaining agreement and the amount of contributions and dues to be remitted on behalf of each 

covered employee. 

14. In or about March 2020, the Plaintiff Funds conducted an audit of ABARI 

CONSTRUCTION, INC. for the period January 1, 2019 through December 31, 2019. A copy of 

that audit is attached as Exhibit C. The audit revealed that ABARI CONSTRUCTION, INC. failed 

and refused to pay all contributions and work dues in accordance with the provisions of the 

collective bargaining agreements, participation agreements, and trust agreements. The unpaid 

amounts total not less than the following: 

Audit Liabilities (01/01/2019 – 12/31/2019): $38,962.31

 Total: $38,962.31

15. Audit costs, for which ABARI CONSTRUCTION, INC. is liable in accordance with 

the trust agreements, total not less than $2,176.13. A copy of the audit invoice is attached as

Exhibit D.

16. Based on employer reports, ABARI CONSTRUCTION, INC. failed and refused to 

pay all contributions for the following months when due in accordance with the provisions of the 

collective bargaining agreements, participation agreements, and trust agreements. Delinquent 

contributions include but may not be limited to the following: 

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Delinquent Contributions (05/2018; Local 727): $208.23

 Total: $208.23

17. The participation agreements and trust agreements provide for a penalty assessment 

equal to 10% of the contributions unpaid on the 15th day of the month next following the month for 

which the contributions are due. ERISA additionally provides, in 29 U.S.C. § 1132(g)(2)(C), that 

upon recovery of unpaid benefit contributions by a fiduciary of a benefit plan, “the court shall 

award the plan...liquidated damages provided for under the plan in an amount not in excess of 20 

percent.” 

18. Because contributions were not paid when due, ABARI CONSTRUCTION, INC.

incurred 10% penalty assessments in accordance with the participation agreements and trust 

agreements totaling not less than the following: 

Audit Liabilities (01/01/2019 – 12/31/2019): $3,896.23

 Total: $3,896.23

19. The total amount owed by ABARI CONSTRUCTION, INC. pursuant to the trust 

agreements is not less than $45,242.90, consisting of not less than: $38,962.31 in audit liabilities 

(i.e., delinquent fringe benefit contributions), $208.23 in report form shortages (i.e., delinquent 

fringe benefit contributions), $3,896.23 in late payment penalties, and $2,176.13 in audit costs. 

20. ABARI CONSTRUCTION, INC. has failed and refused to pay the amount of

$45,242.90 known to be due to Plaintiffs. 

21. Plaintiffs have been required to employ auditors and the undersigned attorneys to 

identify and pursue collection of the amount due from ABARI CONSTRUCTION, INC.

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22. ERISA provides, in 29 U.S.C. § 1132(g)(2)(D), that upon recovery of unpaid benefit 

contributions by a fiduciary of a benefit plan, “the court shall award the plan...reasonable attorney’s 

fees and costs of the action, to be paid by the defendant.” The participation agreements and trust 

agreements also provide that employers who become delinquent in making fringe benefit 

contributions are liable to the Plaintiff Funds for the cost of an audit and attorney’s fees and costs. 

23. ERISA provides, 29 U.S.C. § 1132(g)(2)(B), that upon recovery of unpaid benefit 

contributions by a fiduciary of a benefit plan, “the court shall award the plan...interest on the 

unpaid contributions.” 

WHEREFORE, Plaintiffs respectfully request that this Court: 

A. Enter judgment against ABARI CONSTRUCTION, INC. in favor of Plaintiffs. 

B. Order ABARI CONSTRUCTION, INC. to pay Plaintiffs not less than $45,242.90. 

C. Order ABARI CONSTRUCTION, INC. to perform and continue to perform all 

obligations it has undertaken with respect to the Plaintiff Funds. 

D. Order ABARI CONSTRUCTION, INC. to pay interest, costs, and reasonable 

attorney’s fees to Plaintiffs pursuant to 29 U.S.C. § 1132(g)(2). 

E. Grant Plaintiffs such other and further relief as may be just. 

COUNT II

Against MIGUEL DIGIOIA

1. - 23. Plaintiffs reallege paragraphs 1 - 23 of Count I. 

24. This Count arises from a common nucleus of operative facts with Count I and is 

pendent to that count. 

Breach of Contract / Trust Agreements

25. Plaintiffs are advised and believe that MIGUEL DIGIOIA is the President, Chief 

Executive Officer, Chief Financial Officer, and Chief Operating Officer of ABARI 

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CONSTRUCTION, INC. and is in control of the corporation. Further, Plaintiffs are advised and 

believe that MIGUEL DIGIOIA is a director of ABARI CONSTRUCTION, INC. 

26. Pursuant to the collective bargaining agreement to which ABARI 

CONSTRUCTION, INC. agreed to be bound, where there is any willful violation of any of the 

requirements of the trust agreements, the officers and directors of the employer shall be personally 

liable for any underpayment or other pecuniary loss to the Plaintiff Funds as a result of such 

conduct. 

27. Pursuant to the trust agreements establishing the Plaintiff Funds, to which ABARI 

CONSTRUCTION, INC. and MIGUEL DIGIOIA agreed to be bound, where there is any willful 

violation of any of the requirements of the trust agreements, the officers and directors of the 

employer who supervised the completion of report forms, signed report forms, or can be determined 

to have had personal knowledge of such conduct, shall be personally liable for any underpayment or 

other pecuniary loss to the Plaintiff Funds as a result of such conduct. 

28. Plaintiffs are informed and believe that MIGUEL DIGIOIA did so supervise the 

completion of report forms, sign report forms, and had personal knowledge of the willful violations 

of the requirements of the trust agreements and the Collective bargaining agreement, making 

MIGUEL DIGIOIA personally liable for the money owed to the Plaintiff Funds by ABARI 

CONSTRUCTION, INC. 

Piercing the Corporate Veil

29. There is a unity of interest and ownership between ABARI CONSTRUCTION, INC.

and MIGUEL DIGIOIA such that the separate personalities of the corporation and the individual no 

longer exist, and adherence to the fiction of a separate corporate existence would sanction a fraud, 

promote injustice, and promote inequitable consequences, making MIGUEL DIGIOIA personally 

liable for the money owed to the Plaintiff Funds by ABARI CONSTRUCTION, INC.

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Alter Ego and/or Single Employer

30. Upon information and belief, and at all times material to this complaint, ABARI 

CONSTRUCTION, INC. and MIGUEL DIGIOIA have been affiliated and intertwined business 

enterprises with substantially identical management, business purposes, operations, jobs, services, 

production processes, products, equipment, facilities, customers, personnel, supervision, and 

ownership. 

31. Based on their nature and activities as alleged the preceding two paragraphs, ABARI 

CONSTRUCTION, INC. and MIGUEL DIGIOIA constitute a single integrated business enterprise 

and have been, at all material times, alter egos and a single employer. MIGUEL DIGIOIA is 

therefore bound by the terms of the Memorandum of Agreement and the trust agreements, making 

him personally liable for the money owed to the Plaintiff Funds by ABARI CONSTRUCTION, 

INC. 

WHEREFORE, Plaintiffs respectfully request that this Court: 

A. Enter judgment against MIGUEL DIGIOIA in favor of Plaintiffs. 

B. Order MIGUEL DIGIOIA to pay Plaintiffs $45,242.90, plus any additional amount 

shown to be due. 

C. Order MIGUEL DIGIOIA to pay all fringe benefit contributions and assessment 

penalties that may be shown to be due after an audit. 

D. Order MIGUEL DIGIOIA to pay auditors’ fees to Plaintiffs. 

E. Order MIGUEL DIGIOIA to pay interest, costs, and reasonable auditors’ and 

attorneys’ fees to Plaintiffs pursuant to 29 U.S.C. § 1132(g)(2). 

F. Grant Plaintiffs such other and further relief as may be just. 

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Respectfully submitted,

CENTRAL LABORERS’ PENSION FUND, et al.

 By: /s/ Richard A. Toth

/s/ Storm Saponaro

One of their attorneys

DALEY AND GEORGES, LTD.

20 S. Clark St., Suite 400

Chicago, IL 60603-1903

(312) 726-8797

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