Misc Warehousemen's Local v. Sunnyside Corporation

RESPONSE

N.D. Ill.January 23, 2008

THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MISCELLANEOUS WAREHOUSEMEN’S ) LOCAL 781 HEALTH AND WELFARE ) FUND ) ) Plaintiff, ) ) v. ) NO. 07 C 6878 ) SUNNYSIDE CORPORATION, an ) JUDGE KENNELLY Illinois Corporation, ) MAGISTRATE JUDGE VALDEZ ) Defendant. ) PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO STAY LITIGATION PENDING ARBITRATION Plaintiff, Miscellaneous Warehousemen’s Local 781 Health and Welfare Fund (“Fund”) hereby submits its Response to Defendant’s Motion to Stay Litigation Pending Arbitration, and states as follows: 1. On January 2, 2008, the Defendant, Sunnyside Corporation (“Sunnyside”) filed its Motion to Stay Litigation Pending Arbitration. 2. It is Plaintiff’s position that the court should deny the requested stay for the following reasons: a. Litigation between the Fund and Sunnyside require contract interpretations not necessarily required in the pending arbitration between Miscellaneous Warehousemen’s Local 781 (“Union”) and Sunnyside, and the Union’s interests are not necessarily that of the Fund’s. b. The Fund is not a party to the pending arbitration between the Union and Sunnyside. Case 1:07-cv-06878 Document 16 Filed 01/23/2008 Page 1 of 3 * Including missing even pages from Defendant’s Exhibit B in its Motion to Stay Litigation. ** Defendant has previously provided the Collective Bargaining Agreement as Exhibit A in its Motion. 2 c. The primary issue of the instant court action is for the recovery of delinquent contributions in the amount of $178,457.90. d. That, the dispute as to whether contributions by Sunnyside were required, does not foreclose recovery through legal proceedings because the plain language of the Trust Agreement and Collective Bargaining Agreement establishes the Fund’s rights to recovery outside of arbitration procedures. 3. In support of its arguments, the Fund submits its Memorandum in Support of its Response to Defendant’s Motion to Stay Litigation Pending Arbitration. 4. The Fund has also attached the following exhibits in support of its response to Defendant’s Motion: Exhibit A: Restated Agreement and Declaration of Trust.* See also: Collective Bargaining Agreement between the Miscellaneous Warehousemen’s Local 781 and Sunnyside.** WHEREFORE, Plaintiff prays that the motion to stay litigation be denied. Respectfully submitted, /s/ Robert B. Greenberg Asher, Gittler, Greenfield & D’Alba, Ltd. 200 West Jackson Boulevard Suite 1900 Chicago, Illinois 60606 (302) 263-1500 IL ARDC#: 01047558 1/23/08 Case 1:07-cv-06878 Document 16 Filed 01/23/2008 Page 2 of 3 * Including missing even pages from Defendant’s Exhibit B in its Motion to Stay Litigation. ** Defendant has previously provided the Collective Bargaining Agreement as Exhibit A in its Motion. 3 CERTIFICATE OF SERVICE ROBERT B. GREENBERG, being duly sworn, says that he is an attorney associated with Asher, Gittler, Greenfield & D'Alba, Ltd., attorneys for Plaintiff in this action, and that he served the attached Response upon: Thurston C. Bailey Patricia Costello Slovak Schiff Hardin LLP 6600 Sears Tower Chicago, Illinois 60606 by depositing a copy in the United States mails, postage paid, at 200 West Jackson Boulevard, Chicago, Illinois 60606, on the 23rd day of January 2008. Service was accomplished pursuant to ECF as to Filing Users, and Counsel shall comply with LR 5.5 as to any party who is not a Filing User or represented by a Filing User. /s/ Robert B. Greenberg Asher, Gittler, Greenfield & D'Alba, Ltd. 200 West Jackson Boulevard Suite 1900 Chicago, Illinois 60606 (312) 263-1500 IL ARDC#: 01047558 Case 1:07-cv-06878 Document 16 Filed 01/23/2008 Page 3 of 3