Operating Eng'rs Local 324 v. Bourdow Contracting, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0049p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

TRUSTEES OF OPERATING ENGINEERS LOCAL 324 ┐
PENSION FUND, │
Plaintiff-Appellee, │
> No. 18-1491
│
v. │
│
│
BOURDOW CONTRACTING, INC., │
Defendant-Appellant. │
┘

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:15-cv-12272—Stephen J. Murphy, III, District Judge.

Argued: January 31, 2019

Decided and Filed: March 21, 2019

Before: CLAY, COOK, and LARSEN, Circuit Judges.
_________________

COUNSEL

ARGUED: Joshua J. Leadford, MASUD LABOR LAW GROUP, Saginaw, Michigan, for
Appellant. Matthew I. Henzi, SULLIVAN, WARD, ASHER & PATTON, P.C., Southfield,
Michigan, for Appellee. ON BRIEF: Joshua J. Leadford, David J. Masud, Kraig M. Schutter,
MASUD LABOR LAW GROUP, Saginaw, Michigan, for Appellant. David J. Selwocki, Jessica
L. Schuhrke, SULLIVAN, WARD, ASHER & PATTON, P.C., Southfield, Michigan, for
Appellee.
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 2

_________________

OPINION
_________________

CLAY, Circuit Judge. Defendant Bourdow Contracting, Inc. appeals the district court’s
February 6, 2018 order granting Plaintiff Trustees of Operating Engineers Local 324 Pension
Fund’s motion for summary judgment on the grounds that Defendant is the alter ego of Bourdow
Trucking, Inc. Plaintiff’s complaint seeks recovery of withdrawal liability that Bourdow
Trucking, Inc. owed to Plaintiff pursuant to the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1381(a). For the reasons set forth below, we AFFIRM the district court’s
grant of summary judgment.

BACKGROUND

Factual Background

Bourdow Trucking, Inc. (“Trucking”) was incorporated in 1967. From its inception,
Trucking sold and transported dirt, stone, and sand throughout Michigan’s Lower Peninsula. It
also engaged in construction site preparation and excavation.

Trucking was owned by Dan Bourdow Sr., his wife Patricia, and their children Dan Jr.,
Barb, Cindy, and Joe.1 Dan Sr., Patricia, Dan Jr., and Joe served as Trucking’s corporate
officers—Chief Executive Officer, Secretary, President, and Vice President of Operations,
respectively. And Trucking also employed other members of the Bourdow family, including
Barb’s husband Craig and Dan Jr.’s son Jason. In total, Trucking employed up to 30 people,
operating out of an office building in Saginaw, Michigan.

For most of its existence, Trucking employed a unionized workforce. Accordingly,
Trucking executed numerous collective bargaining agreements with the Operating Engineers
Local Union 324 (the “Union”). And as part of those collective bargaining agreements, Trucking
made fringe benefit payments to Plaintiff—the trustees of the Union’s pension fund.

1Both parties refer to the relevant members of the Bourdow family by these names. For simplicity, we do
as well.
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 3

In 2007, Trucking began to experience financial difficulties. As a result, Trucking
terminated its collective bargaining agreement with the Union, relieving Trucking of its
obligation to make fringe benefit payments to Plaintiff. However, because the individual
responsible for making these payments was never told to stop doing so, Trucking continued to
make fringe benefit payments to Plaintiff until July 2011. At that time, Plaintiff mailed an
uncashed check back to Trucking, and no further payments were made.

In August 2012, Plaintiff informed Trucking that because Trucking had completely
withdrawn from the Union’s pension fund in July 2011, Trucking had incurred withdrawal
liability pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C § 1381(a).2 Plaintiff assessed that Trucking owed $1,163,279 in withdrawal liability.
And Plaintiff demanded payment in installments beginning on November 1, 2012.

Shortly thereafter, Trucking called a meeting to discuss its response options. Dan Sr.,
Patricia, Dan Jr., Barb, Cindy, and Joe attended the meeting, as did Trucking’s accountant Gregg
Greenwood, Trucking’s longtime labor lawyer David Masud, and Trucking’s newly-hired
bankruptcy lawyer John Lozano. At the meeting, it was determined that Trucking could not
afford to pay the assessed amount of withdrawal liability. Accordingly, other response options
were considered, including negotiating with Plaintiff to lower the amount owed, and filing for
bankruptcy. No decision was reached at that time.

In November 2012, Trucking missed its first withdrawal liability payment, and Plaintiff
filed a lawsuit against Trucking to recover it. However, that lawsuit was stayed when Trucking
filed for Chapter 7 bankruptcy on March 12, 2013. As part of Trucking’s bankruptcy
proceedings, Plaintiff filed a proof of claim for $1,272,187—the amount of withdrawal liability
Trucking owed plus interest. Trucking did not object to the claim, and it was allowed pursuant

2Withdrawal liability is a statutory obligation imposed upon a member of a multi-employer pension plan if
that member partially or completely withdraws from the plan. While prior to 1980, an employer that withdrew from
a multi-employer pension plan could typically do so without any penalty, this often resulted in increased funding
obligations for those employers who remained in the plan. Accordingly, in 1980, Congress enacted the
Multiemployer Pension Plan Amendments Act, Pub. L. No. 96-364, 94 Stat. 1208, which amended ERISA in part by
imposing withdrawal liability on employers that withdraw from an underfunded multi-employer pension plan. The
goal of this liability was to ensure that each member paid its fair share of the plan’s obligations. See generally
Lawrence Gelber, et al., The Benefit of Whose Bargain? Courts Grapple with Administrative Expense Priority for
Postpetition Withdrawal Liability Claims, 21 J. Bankr. L. & Pract. 4 Art. 6 (2012).
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 4

to the Bankruptcy Code, 11 U.S.C. § 502(a). At the conclusion of Trucking’s bankruptcy
proceedings, Plaintiff received $52,034 on its claim.

While Trucking was coming to an end, another Bourdow family company was just
beginning. Defendant, Bourdow Contracting Inc., was incorporated on November 2, 2012—the
day after Trucking missed its first withdrawal liability payment. And Defendant bid on its first
project on March 10, 2013—two days before Trucking filed for bankruptcy. Since its inception,
Defendant has engaged in construction site preparation and excavation in Saginaw, Bay, and
Midland counties in Michigan’s Lower Peninsula. It also engages in occasional snow plowing
and other miscellaneous projects.

Defendant is owned by Dan Jr., Joe, and Jason. Dan Jr., Joe, and Jason serve as
Defendant’s corporate officers—Secretary, Vice President, and President, respectively. And
Defendant also employs other members of the Bourdow family, including Craig, and retains the
services of other professionals formerly retained by Trucking, including Gregg Greenwood and
John Lozano. In total, Defendant employs up to 8 people, operating out of Dan Jr.’s home in
Saginaw, Michigan.

Procedural History

In 2015, Plaintiff filed a lawsuit against Defendant in the United States District Court for
the Eastern District of Michigan, seeking to recover the outstanding withdrawal liability that was
not satisfied during Trucking’s bankruptcy proceedings. Plaintiff’s complaint alleges (1) that
Defendant was created for the purpose of evading Trucking’s withdrawal liability, and thus is
responsible for Trucking’s withdrawal liability pursuant to 29 U.S.C § 1392(c), and (2) that
Defendant is the alter ego of Trucking, and is thus responsible for Trucking’s withdrawal
liability pursuant to the equitable doctrine of alter ego. Plaintiff’s complaint seeks the same
amount for which it submitted a proof of claim in Trucking’s bankruptcy proceedings—
$1,272,187.

Following discovery, both parties filed motions for summary judgment. On February 6,
2018, the district court entered an order denying Defendant’s motion for summary judgment and
granting Plaintiff’s motion for summary judgment on the grounds that Defendant is the alter ego
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 5

of Trucking. In making that determination, the district court applied the alter-ego test of the
National Labor Relations Act of 1935 (“NLRA”), 29 U.S.C. § 151 et seq. After additional
briefing, the district court also determined that Plaintiff was entitled to a judgment in the amount
of $3,221,981—the amount of Trucking’s withdrawal liability, less the amount paid to Plaintiff
at the conclusion of Trucking’s bankruptcy proceedings, plus interest and fees awarded pursuant
to 29 U.S.C. § 1132(g)(2).

This appeal followed.

DISCUSSION

I. Standard of Review

Generally, alter-ego determinations are findings of fact that we review for clear error.
See Trs. of Detroit Carpenters Fringe Benefits Fund v. Indus. Contracting, LLC, 581 F.3d 313,
317 (6th Cir. 2009). However, when alter-ego determinations are made as part of a decision to
grant or deny summary judgment, we review them de novo, construing all reasonable inferences
in favor of the nonmoving party. Road Sprinkler Fitters Local Union 669 v. Dorn Sprinkler Co.,
669 F.3d 790, 794 (6th Cir. 2012). The application of res judicata is a question of law that we
review de novo. Bates v. Twp. of Van Buren, 459 F.3d 731, 734 (6th Cir. 2009).

II. Analysis

A. Applicability of the Alter-Ego Test of the NLRA

Defendant first argues that the district court erred by applying the alter-ego test of the
NLRA to Plaintiff’s ERISA claim. However, Defendant did not challenge the applicability of
the alter-ego test of the NLRA before the district court. In fact, Defendant affirmatively invited
any error by asking the district court to grant it summary judgment on the basis of the alter-ego
test of the NLRA. Therefore, Defendant has not preserved this issue for appellate review. See
City of Columbus, Ohio v. Hotels.com, L.P., 693 F.3d 642, 652 (6th Cir. 2012) (“Generally, an
[issue] not raised before the district court is waived on appeal.”); Harris v. Roadway Exp. Inc.,
923 F.2d 59, 61 (6th Cir. 1991) (“The doctrine of invited error is a branch of the doctrine of
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 6

waiver by which courts prevent a party from inducing an erroneous ruling and later seeking to
profit from the legal consequences of having that ruling set aside.”).

Nevertheless, Defendant asks us to exercise our discretion to entertain issues not raised
before the district court. See Harris v. Klare, 902 F.3d 630, 636 (6th Cir. 2018) (“[I]t is within
the ambit of our discretion to entertain [issues] not raised below.”). Whether we should oblige
Defendant’s request is guided by the following factors:

1) whether the issue newly raised on appeal is a question of law, or whether it
requires or necessitates a determination of facts; 2) whether the proper resolution
of the new issue is clear and beyond doubt; 3) whether failure to take up the issue
for the first time on appeal will result in a miscarriage of justice or a denial of
substantial justice; and 4) the parties’ rights under our judicial system to have the
issues in their suit considered by both a district judge and an appellate court.

Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008) (quoting Friendly Farms v.
Reliance Ins. Co., 79 F.3d 541, 545 (6th Cir. 1996)).

In this case, the factors set forth in Friendly Farms weigh against entertaining the issue of
the applicability of the alter-ego test of the NLRA to Plaintiff’s ERISA claim. The proper
resolution of this issue is not clear and beyond doubt, as whether the alter-ego test of the NLRA
applies to ERISA claims is an issue of first impression for this Court and the circuits that have
decided it are split. Compare Mass. Carpenters Cent. Collection Agency v. Belmont Concrete
Corp., 139 F.3d 304, 308 (1st Cir. 1998) (applying the NLRA’s alter-ego test to an ERISA
claim); Central States, Southeast & Southwest Areas Pension Fund v. Sloan, 902 F.2d 593, 596–
97 (7th Cir. 1990) (applying the NLRA’s alter-ego test to an ERISA claim) with Greater Kansas
City Laborers Pension Fund v. Superior Gen. Contractors, Inc., 104 F.3d 1050, 1055 (8th Cir.
1997) (applying a corporate law alter-ego test to an ERISA claim). Additionally, the failure to
take up this issue will not result in a miscarriage of justice because Defendant “had ample
opportunity to raise the issue to the district court.” Scottsdale Ins. Co., 513 F.3d at 553. Such
opportunity is evidenced by the fact that Defendant did more than simply fail to raise this issue;
rather, Defendant affirmatively asserted, both in its motion for summary judgment and in its
response to Plaintiff’s motion for summary judgment, that the alter-ego test of the NLRA was
applicable to Plaintiff’s ERISA claim. The fact that this is an issue that does not necessitate a
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 7

determination of facts is insufficient to outweigh these factors. See Hayward v. Cleveland Clinic
Found., 759 F.3d 601, 615–16 (6th Cir. 2014).

Thus, while it is within the ambit of our discretion to entertain issues not raised below,
“[w]e have rarely exercised such discretion,” and choose not to do so here. Scottsdale Ins. Co.,
513 F.3d at 552. Rather, we assume that the alter-ego test of the NLRA applies to Plaintiff’s
ERISA claim, and proceed to its application.

B. Application of the Alter-Ego Test of the NLRA

Defendant next argues that the district court erred by determining that Defendant is the
alter ego of Trucking under the alter-ego test of the NLRA.

The alter-ego doctrine is an equitable doctrine that “allows courts to treat two companies
as the same entity when necessary to prevent either of them from manipulating its corporate form
to evade its labor obligations.” Bd. of Trustees of Local 17 Iron Workers Pension Fund v. Harris
Davis Rebar, LLC, 800 F.3d 289, 291 (6th Cir. 2015). We have applied the alter-ego doctrine in
two factual contexts. The first is when a new company is “merely a disguised continuance” of an
older company. NLRB v. Fullerton Transfer & Storage Ltd., Inc., 910 F.2d 331, 336 (6th Cir.
1990). The second is when two co-existing companies “are in fact one business, separated only
in form.” Id. In either context, the alter-ego test is the same. Indus. Contracting, 581 F.3d at
318.

“The Sixth Circuit test for determining whether two companies are alter egos . . . look[s]
to see ‘whether the two [companies] have substantially identical management, business[]
purpose, operation, equipment, customers, supervision, and ownership.’” Id. (quoting Fullerton
Transfer, 910 F.2d at 336). An employer’s “intent to evade” its labor obligations is also a factor.
Id. “In applying these factors, no individual factor is determinative; instead, ‘all the relevant
factors must be considered together.’” Id. (quoting NLRB v. Allcoast Transfer, 780 F.2d 576,
582 (6th Cir. 1986)). We will address each factor in turn.

(1) Management. This factor looks to “the nature of the management structure in the two
companies,” including overlap in those who “played a managerial role.” Road Sprinkler,
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 8

669 F.3d at 795. In this case, at Trucking, Dan Sr., Patricia, Dan Jr., and Joe all served as
corporate officers. Dan Sr., however, was “the top decision-maker,” and “ma[de] [all of] the
ultimate decisions.” (RE 29-3, PageID # 594; RE 29-2, PageID # 572.)3 At Defendant, Dan Jr.,
Joe, and Jason serve as corporate officers, and Defendant’s Operating Agreement identifies each
of them as a “co-manager.” (RE 27-10, PageID # 300.) Thus, there is minimal similarity in “the
nature of the management structure in the two companies” and minimal overlap in those who
“played a managerial role,” and the district court correctly determined that this factor weighs in
favor of Defendant. Compare Road Sprinkler, 669 F.3d at 795 (holding that two companies
were not alter egos where they were managed by different individuals, even though those
individuals were members of the same family) with Yolton v. El Paso Tenn. Pipeline Co.,
435 F.3d 571, 588 (6th Cir. 2006) (affirming that two companies were alter egos where they
were managed by the same individuals); Allcoast Transfer, 780 F.2d at 582 (affirming that two
companies were alter egos where they were managed by the same individual).

(2) Business Purpose.4 This factor looks to overlap in the type of work performed. Road
Sprinkler, 669 F.3d at 794. In this case, 50% of Trucking’s business consisted of selling and
transporting dirt, stone, and sand, and 50% consisted of construction site preparation and
excavation. And 90% of Defendant’s business consists of construction site preparation and
excavation, with 10% consisting of snow plowing and other miscellaneous projects. In other
words, 90% of Defendant’s work overlaps with 50% of Trucking’s work. Thus, there is
significant overlap in the type of work performed, and the district court correctly determined that
this factor weighs in favor of Plaintiff. See Road Sprinkler, 669 F.3d at 794 (holding that the fact
that two companies were “engaged in the same business” supported alter-ego status); Trustees of
Painters Union Deposit Fund v. Interior/Exterior Specialist Co., 371 F. App’x 654, 660 (6th Cir.
2010) (affirming that two companies were alter egos where their business purposes were
“separate but not mutually exclusive”); NLRB v. Crossroads Elec., Inc., 178 F. App’x 528, 533

3Except as otherwise indicated, record citations refer to the record in district court action No. 15-cv-12272.
4While this Court listed “business” and “purpose” as separate factors in Fullerton Transfer, see 910 F.2d at
336, the vast majority of this Court’s subsequent decisions have combined them into a single factor. See, e.g., Road
Sprinkler, 669 F.3d at 794; Indus. Contracting, 581 F.3d at 315; Allcoast Transfer, 780 F.2d at 582.
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 9

(6th Cir. 2006) (affirming that two companies were alter egos where they were “engaged in
primarily the same type of work”).

(3) Operations. This factor looks to “continuity of work force”—i.e., whether the new
company “attracted . . . employees of its own” or “employed a number of former employees of
[the older company]”—and to continuity of work space. Road Sprinkler, 669 F.3d at 795. In
this case, at least five of Defendant’s eight employees are former employees of Trucking—Dan
Jr., Joe, Jason, Craig, and Vince Gomez. Defendant also retains the accounting services of
Gregg Greenwood—Trucking’s former accountant—and the legal services of John Lozano—
Trucking’s former bankruptcy attorney. As for work space, Defendant operates out of Dan Jr.’s
home, while Trucking operated out of an office building, both in Saginaw, Michigan.

Thus, although there is no continuity of work space, there is significant continuity of
work force, and the district court correctly determined that this factor weighs in favor of
Plaintiff. Compare Yolton, 435 F.3d at 588 (affirming that two companies were alter egos where
they had the “same employees”); Wilson v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen
& Helpers of Am., 83 F.3d 747, 759 (6th Cir. 1996) (affirming that two companies were alter
egos where they “shared the same corporate headquarters and exchanged employees”); Allcoast
Transfer, 780 F.2d at 582–83 (affirming that two companies were alter egos where the new
company employed “two truck drivers” and some “clerical staff” that were former employees of
the older company) with Road Sprinkler, 669 F.3d at 795 (holding that two companies were not
alter egos where two of the new company’s fourteen employees were former employees of the
older company and the new company rented separate office space from the older company).

(4) Equipment. This factor looks to whether the new company acquired any of the older
company’s equipment, and if so, whether the acquisition was an arm’s-length transaction. Road
Sprinkler, 669 F.3d at 796. In this case, Defendant did not acquire any of Trucking’s equipment,
which was all sold as a result of Trucking’s bankruptcy. Thus, the district court correctly
determined that this factor weighs in favor of Defendant. Compare Road Sprinkler, 669 F.3d at
796 (holding that two companies were not alter egos where the new company acquired an
“insubstantial” amount of the older company’s equipment through an arm’s-length transaction
with the older company) with Allcoast Trasfer, 780 F.2d at 582 (affirming that two companies
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 10

were alter egos where the new company “primarily obtained” its equipment from the older
company); Crossroads Elec., 178 F. App’x at 534 (affirming that two companies were alter egos
where the older company gave most of its equipment to the new company free of charge).

(5) Customers. This factor looks to overlap in “customer base” and “customers.” Road
Sprinkler, 669 F.3d at 796. In this case, Trucking operated throughout Michigan’s Lower
Peninsula. Defendant operates in Saginaw, Bay, and Midland counties in Michigan’s Lower
Peninsula. In other words, while Defendant’s customer base is somewhat smaller than
Trucking’s customer base, it is contained entirely within Trucking’s customer base. And of the
approximately 22 customers that Defendant serviced from 2013 to 2016, 15 were former
customers of Trucking. Thus, there is some overlap in “customer base” and significant overlap
in “customers,” and the district court correctly determined that this factor weighs in favor of
Plaintiff. Cf. Trustees of Detroit Carpenters Fringe Benefits Fund v. Patrie Constr. Co., 618 F.
App’x 246, 254 (6th Cir. 2015) (holding that two companies were not alter egos where there was
only “a single instance of a shared customer or project”); Road Sprinkler, 669 F.3d at 796
(holding that two companies were not alter egos where 9 out of 250 of the new company’s
customers were former customers of the older company).

(6) Supervision. This factor looks to overlap in those who hold supervisory roles.
Allcoast Transfer, 780 F.2d at 582. The NLRA defines “supervisor” broadly as “any individual
having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or responsibly to direct
them . . . [if] such authority is not of a merely routine or clerical nature, but requires the use of
independent judgment.” 29 U.S.C. § 152(11). In this case, Dan Jr. and Joe conceded that they,
along with Dan Sr., were supervisors at Trucking. Dan Jr. and Joe also conceded that they, along
with Jason, are supervisors at Defendant. Thus, there is significant overlap in those who hold
supervisory roles, and the district court correctly determined that this factor weighs in favor of
Plaintiff. See Wilson, 83 F.3d at 759 (affirming that two companies were alter egos where the
same individual held a supervisory role at both); Allcoast, 780 F.2d at 582 (affirming that two
companies were alter egos where the same individual held a supervisory role at both); Nelson
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 11

Elec. v. NLRB, 638 F.2d 965, 968 (6th Cir. 1981) (affirming that two companies were alter egos
where the same individuals held supervisory roles at both).

(7) Ownership. This factor looks to overlap in those with an ownership interest. Road
Sprinkler, 669 F.3d at 794–95; Crossroads Elec., 178 F. App’x at 533. In this case, Trucking
was owned by Dan Sr. (30.7%), Patricia (30.7%), Dan Jr. (9.65%), Barb (9.65%), Cindy
(9.65%), and Joe (9.65%). And Defendant is owned by Dan Jr. (33.33%), Joe (33.33%), and
Jason (33.33%). In other words, individuals that owned approximately 20% of Trucking now
own 66.66% of Contracting. Thus, there is significant overlap in those with an ownership
interest, and the district court correctly determined that this factor weighs in favor of Plaintiff.
Compare Interior/Exterior Specialist Co., 371 F. App’x at 660 (affirming that two companies
were alter egos where there was “some overlap” in ownership); Crossroads Elec., 178 F. App’x
at 533 (affirming that two companies were alter egos where the same individuals owned 100% of
both) with Road Sprinkler, 669 F.3d at 794–95 (holding that two companies were not alter egos
where there was no overlap in ownership).

(8) Intent to Evade Labor Obligations. This factor looks to “evidence of intent on the
part of the two companies to avoid the effect of the collective bargaining agreement” or their
other labor obligations. Road Sprinkler, 669 F.3d at 796. In this case, the timing of, individuals
involved in, and concessions made regarding both Trucking’s demise and Defendant’s formation
all “support th[e] inference” that Defendant was formed in order to retain the benefits of
Trucking without having to retain its liabilities. Id. Dan Jr., Joe, and bankruptcy attorney John
Lozano each attended the meeting at which it was determined that Trucking could not afford to
pay the assessed amount of withdrawal liability, and at which filing for bankruptcy was first
discussed as a response option. Dan Jr. and Joe, along with Jason, then incorporated Defendant
on November 2, 2012—the day after Trucking missed its first withdrawal liability payment.
John Lozano prepared and submitted the Articles of Incorporation. Defendant then bid on its
first project on March 10, 2013—two days before Trucking filed for bankruptcy. Dan Jr. and
John Lozano prepared and submitted the Voluntary Petition. And Dan Jr. and Joe ultimately
conceded that throughout this process, it was “important” for Defendant to keep the Bourdow
name because people “know the name” through Trucking and because Defendant could benefit
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 12

from the “goodwill” that Trucking had accrued under the name. (RE 29-3, PageID # 627; RE
29-4, PageID # 657.) Thus, there is persuasive evidence of intent to evade labor obligations, and
the district court incorrectly determined that this factor weighs in favor Defendant. Rather, it
weighs in favor of Plaintiff.5 Compare Road Sprinkler, 669 F.3d at 796 (holding that two
companies were not alter egos where there was no evidence of intent to evade labor obligations)
with NLRB v. CJR Transfer, Inc., 952 F.2d 403, at *3 (6th Cir. 1992) (Table) (affirming that two
companies were alter egos where the “primary purpose” of the new company was to avoid labor
obligations).

In sum, six of the factors weigh in favor of Plaintiff—business purpose, operations,
customers, supervision, ownership, and intent to evade labor obligations—and two of the factors
weigh in favor of Defendant—management and equipment. And there is no reason that the two
factors in favor of Defendant would outweigh the six factors in favor of Plaintiff. Accordingly,
the district court correctly determined that Defendant is “merely a disguised continuance” of
Trucking. Fullerton Transfer, 910 F.2d at 336; see also Road Sprinkler, 669 F.3d at 796
(holding that two companies were not alter egos where six factors weighed in favor of the
defendant); Allcoast Transfer, 780 F.2d at 583 (affirming that two companies were alter egos
where six factors weighed in favor of the plaintiff). Thus, we hold that Defendant is the alter ego
of Trucking, and “treat [the] two companies as the same entity [because it is] necessary to
prevent either of them from manipulating its corporate form to evade its labor obligations.”
Harris Davis Rebar, 800 F.3d at 291.

5However, we note that this factor remains “merely one of the factors to be considered.” Indus.
Contracting, 581 F.3d at 318. It is neither a prerequisite factor, nor is it more important than the other factors. Id.
While this Court has described this factor as “clearly the focus of the alter ego doctrine,” Trustees of Resilient Floor
Decorators Ins. Fund v A&M Installations, Inc., 395 F.3d 244, 248 (6th Cir. 2005), it has also made clear from the
beginning that there are limits on this factor’s probative force, emphasizing that intent “can too easily be disguised.”
Fullerton Transfer, 910 F.2d at 337. Moreover, this Court recently characterized its decision in A&M Installations
as one of “limited authority” that should be “confined to its facts,” in part because its over-reliance on this factor
“confus[ed] the purpose of the alter ego doctrine with the Sixth Circuit’s test for determining whether it should be
applied.” Indus. Contracting, 581 F.3d at 318–19. In other words, the purpose of the alter-ego doctrine is to
prevent intentional evasions of labor obligations, but the test for determining whether it should be applied considers
evidence of such intent as one of eight factors that all “must be considered together.” Id. at 318.
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 13

C. Res Judicata

Defendant lastly argues that the district court erred by determining that Plaintiff was
entitled to a judgment in the amount of $3,221,981 because the res judicata effect of Plaintiff’s
proof of claim—filed in Trucking’s bankruptcy proceedings for $1,272,187—bars litigation of
the amount of Defendant’s liability.

“A claim is barred by the res judicata [or claim preclusive] effect of prior litigation if all
of the following elements are present: ‘(1) a final decision on the merits by a court of competent
jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the
subsequent action which was litigated or which should have been litigated in the prior action;
and (4) an identity of the causes of action.’” Browning v. Levy, 283 F.3d 761, 771 (6th Cir.
2002) (quoting Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir. 1997)). And it has
long been established that “[n]ormal rules of res judicata . . . apply to the decisions of the
bankruptcy courts.” In re Enyart, 509 F.2d 1058, 1061 (6th Cir. 1975). We will address each
element in turn.6

(1) A final decision on the merits by a court of competent jurisdiction. Plaintiff’s proof of
claim in Trucking’s bankruptcy proceedings was allowed pursuant to 11 U.S.C § 502(a), which
provides that “[a] claim or interest, proof of which is filed under section 501 of this title, is
deemed allowed, unless a party in interest . . . objects.” Whether an uncontested proof of claim
that is allowed pursuant to 11 U.S.C. § 502(a) is a final judgment on the merits for purposes of
res judicata is an issue of first impression for this Court. Accordingly, we look to helpful cases
from other circuits.

6The term “res judicata” is at times used to refer to claim preclusion, and contrasted with the term
“collateral estoppel,” used to refer to issue preclusion. See Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
918 F.2d 658, 660–61 (6th Cir. 1990). However, at other times the term “res judicata” is used to refer to both claim
preclusion and issue preclusion. See Arangure v. Whitaker, 911 F.3d 333, 337 (6th Cir. 2018). In this case, the
parties use the term “res judicata” in the former sense, to refer to claim preclusion only. Accordingly, we address
claim preclusion only. See Goodwin v. Summit Cty., 703 F. App’x 379, 385 (6th Cir. 2017); Doe v. Jackson Local
Sch. Dist., 422 F. App’x 497, 500 (6th Cir. 2011). While Defendant also raises a collateral estoppel argument in its
reply brief, “arguments made to us for the first time in a reply brief are waived.” Sanborn v. Parker, 629 F.3d 554,
579 (6th Cir. 2010).
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The Second, Fifth, and Ninth Circuits have each held that an uncontested proof of claim
that is allowed pursuant to 11 U.S.C. § 502(a) is a final judgment on the merits for the purposes
of res judicata. See EDP Medical Comput. Sys., Inc. v. United States, 480 F.3d 621, 627 (2d Cir.
2007); Siegel v. Fed. Home Loan Mortg. Corp., 143 F.3d 525, 530–31 (9th Cir. 1998); Matter of
Baudoin, 981 F.2d 736, 742 (5th Cir. 1993). And the First Circuit has assumed as much. See
Giles World Mktg., Inc. v. Boekap Mfg., Inc., 787 F.2d 746, 747–48 (1st Cir. 1986). No circuit
has held otherwise. We find the reasoning of these cases persuasive.

In EDP Medical, EDP Medical filed for Chapter 7 bankruptcy. 480 F.3d at 623. As part
of EDP Medical’s bankruptcy proceedings, the Internal Revenue Service (“IRS”) filed a proof of
claim against EDP Medical for tax liability of $166,181. Id. No objections were raised, and the
district court issued an order allowing the claim. Id. The bankruptcy trustee then paid the claim,
and the bankruptcy case was closed. Id. at 624.

Subsequently, however, EDP Medical sued the IRS challenging that tax liability, and the
IRS argued that the res judicata effect of its proof of claim barred the suit. Id. The Second
Circuit agreed, holding that a bankruptcy court’s order allowing an uncontested proof of claim
pursuant to 11 U.S.C. § 502(a) constitutes a final judgment on the merits for purposes of res
judicata. Id. at 622. The court reasoned that res judicata “applies with full force to matters
decided by the bankruptcy courts,” and that the values underlying the doctrine—judicial
economy and prevention of inconsistent decisions—are particularly served by applying it to
Chapter 7 bankruptcy proceedings, “where it is desirable that matters be resolved as
expeditiously and economically as possible.” Id. at 625.

In Siegel, Siegel filed for Chapter 7 bankruptcy. 143 F.3d at 532. As part of Siegel’s
bankruptcy proceedings, the Federal Home Loan Mortgage Corporation (“Freddie Mac”) filed
two proofs of claim against Siegel for mortgage loan liability on two pieces of property. Id. at
527–28. No objections were raised, and the claim was deemed allowed without a court order.
Id. at 528. Freddie Mac foreclosed on the properties, and the bankruptcy case was closed. Id.

Subsequently, however, Siegel sued Freddie Mac challenging those foreclosures, and
Freddie Mac argued that the res judicata effect of its proof of claim barred the suit. Id. The
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Ninth Circuit agreed, holding that an uncontested proof of claim that is allowed pursuant to
11 U.S.C. § 502(a) is a final judgment on the merits for purposes of res judicata even without a
separate court order specifically allowing the claim. Id. at 530. The court reasoned that “the
allowance or disallowance of a claim in bankruptcy should be given like effect as any other
judgment of a competent court, in a subsequent suit against the bankrupt or anyone in privity
with him,” and that “the lack of a separate court order is a distinction without a difference.” Id.
at 529–30. The court further explained:

Of course, if the court formally actually allows the claim, there can be little doubt
about the ultimate res judicata effect of that allowance. But it is equally clear that
when a claim is “deemed allowed” [pursuant to 11 U.S.C. § 502(a)] it has the
same effect. Consider: what else can ‘deemed allowed’ mean? It must mean
deemed allowed by the court. In other words, it is deemed that the court has acted
on the claim and ordered allowance. Congress has relieved the court of the task
of actually endorsing its allowance of the claim on that document or on a separate
form of order. . . . It would be most peculiar if the effect was that uncontested and
allowed claims had less dignity for res judicata purposes than a claim which at
least one party in interest thought was invalid or contestable in whole or in part.
We see no reason to embrace that rather peculiar result. Rather, we see § 502(a)
as a recognition of the fact that people can raise objections and litigate them, if
they see something wrong with a claim, but if they do not, the claim will be
treated in all respects as a claim allowed by the court itself.

Id. at 530.

The courts in both EDP Medical and Siegel also distinguished the Fourth Circuit’s
decision in County Fuel Co. v Equitable Bank Corp., 832 F.2d 290 (4th Cir. 1987). In that case,
the court expressed its “doubt that the ‘automatic allowance’ under 11 U.S.C. § 502(a) of a claim
not objected to constitutes a ‘final judgment’” for purposes of res judicata. Id. at 292.
Specifically, the court noted that under bankruptcy law there are certain circumstances in which
parties can object to or seek reconsideration of a proof of claim after its allowance, casting doubt
on its finality. Id. However, the courts in EDP Medical and Siegel reasoned that those concerns
“dissipate” or “lose force” where “the debtor has received its discharge and the bankruptcy
proceeding is closed.” 480 F.3d at 625–26; 143 F.3d at 530. “By then, any lingering doubts
about finality surely would have been assuaged.” Siegel, 143 F.3d at 530. Moreover, both
courts also reasoned that any discussion of res judicata in County Fuel was dicta, as the case was
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 16

ultimately decided on waiver grounds. 480 F.3d at 625 n.2; 143 F.3d at 530. Thus, County Fuel
is distinguishable.7

In this case, as in EDP Medical and Siegel, Trucking filed for Chapter 7 bankruptcy.
As part of Trucking’s bankruptcy proceedings, Plaintiff filed a proof of claim against Trucking
for $1,272,187 for withdrawal liability. No objections were raised and, as in Siegel, the claim
was allowed pursuant to 11 U.S.C. § 502(a) without a separate court order specifically allowing
the claim. The bankruptcy trustee then paid a portion of the claim—$52,034—and the
bankruptcy case was closed.

Subsequently, Plaintiff sued Defendant seeking the outstanding withdrawal liability on an
alter-ego theory of liability. However, Plaintiff sought an amount greater than the amount of its
proof of claim. Defendant argues that the res judicata effect of Plaintiff’s proof of claim bars
litigation of the amount of its liability. For the reasons articulated in EDP Medical and Siegel,
we hold that that an uncontested proof of claim that is allowed pursuant to 11 U.S.C. § 502(a) is
a final judgment on the merits for the purposes of res judicata, with or without a separate court
order specifically allowing the claim.

(2) A subsequent action between the same parties and their privies. Defendant is the alter
ego of Trucking, and thus we hold that Plaintiff’s ERISA claim is a subsequent action between
the same parties. See Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v.
Aguirre, 410 F.3d 297, 302 (6th Cir. 2005) (“[A] contention that A is B’s ‘alter ego’ asserts that
A and B are the same entity.”).

(3) An issue in the subsequent action which was litigated or which should have been
litigated in the prior action. The difference between the amount awarded by the district court
and the amount of Plaintiff’s proof of claim reflects interest and fees awarded pursuant to

7Equally distinguishable are the two cases within this Circuit that have questioned the holdings in EDP
Medical and Siegel. See In re Khan, 2011 WL 6179941, at *5 (Bankr. E.D. Tenn. Dec. 13, 2011); Kismet Prods.,
Inc. v. HCC Benefits Corp., 2008 WL 1843987, at * 7 (N.D. Ohio Apr. 22, 2008). In Khan, the court did not discuss
EDP Medical as additional authority weighing in favor of adopting the holding in Siegel. And in Kismet Prods., the
bankruptcy proceeding was still pending.
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 17

29 U.S.C. § 1132(g)(2).8 Accordingly, this element looks to whether the interest and fees
awarded pursuant to § 1132(g)(2) were litigated or should have been litigated in Trucking’s
bankruptcy proceedings.

The interest and fees awarded pursuant to § 1132(g)(2) could have been litigated in
Trucking’s bankruptcy proceedings. In November 2012, Plaintiff filed a lawsuit against
Trucking that was subsequently stayed when Trucking filed for Chapter 7 bankruptcy. If the
lawsuit had been successful, Plaintiff would have been entitled to the interest and fees awarded
pursuant to §1132(g)(2). Accordingly, Plaintiff could have included that amount in its proof of
claim. And we note that other courts have addressed disputes over damages authorized by
§ 1132(g) in the context of bankruptcy proceedings. See, e.g., In re Interstate Bakeries Corp.,
704 F.3d 528, 537 (8th Cir. 2013) (reviewing a bankruptcy court’s decision regarding fees
awarded pursuant to § 1132(g)); Bannistor v. Ullman, 287 F.3d 394, 408 (5th Cir. 2002)
(reviewing a bankruptcy court’s decision regarding fees awarded pursuant to § 1132(g)); In re
World Sales, Inc., 183 B.R. 872, 878 (9th Cir. BAP 1995) (reviewing a bankruptcy court’s
decision regarding interest and fees awarded pursuant to § 1132(g)(2)). Thus, we hold that the
interest and fees awarded pursuant to § 1132(g)(2) should have been litigated in Trucking’s
bankruptcy proceedings. See Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032 (6th Cir.
1998); see also Wilkins v. Jakeway, 183 F.3d 528, 532 n.4 (6th Cir. 1999).

(4) An identity of the causes of action. An identity of the causes of action exists “if the
claims arose out of the same transaction or series of transactions, or if the claims arose out of the
same core of operative facts.” Winget v. JP Morgan Chase Bank, 537 F.3d 565, 580 (6th Cir.
2008). This Court has also stated that an identity of causes of action exists if there is an identity
of “the facts creating the right of action and of the evidence necessary to sustain each action,”
Sanders Confectionary Prods., Inc. v. Heller Financial, Inc., 973 F.2d 474, 484 (6th Cir. 1992),
the evidentiary component looking to “whether the same underlying factual evidence could

829 U.S.C. § 1132(g)(2) provides that “[i]n any action under this subchapter by a fiduciary for or on behalf
of a plan to enforce section 1145 of this title [pertaining to delinquent contributions] in which a judgment in favor of
the plan is awarded, the court shall award the plan [interest and various fees, including reasonable attorney’s fees].”
An action to recover withdrawal liability is such an action because “any failure of [an] employer to make any
withdrawal liability payment within the time prescribed shall be treated in the same manner as a delinquent
contribution (within the meaning of section 1145 of this title).” Id. § 1451.
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 18

support and establish both [claims].” Heike v. Cent. Mich. Univ. Bd. of Trs., 573 F. App’x 476,
483 (6th Cir. 2014). Thus, the critical consideration is operative “factual overlap” between the
claims. Id. (quoting United States v. Tohono O’odham Nation, 563 U.S. 307, 315 (2011)).

Plaintiff’s proof of claim arose out of, and was created by, Trucking’s failure to make
withdrawal liability payments to Plaintiff. Accordingly, the operative facts of that claim
included Trucking’s entry into and withdrawal from its collective bargaining agreement with the
Union, and Plaintiff’s assessment of and demand for withdrawal liability. In contrast, Plaintiff’s
current claim arises out of, and was created by, Defendant’s status as Trucking’s alter ego.
Accordingly, the operative facts of this claim include, as discussed above, the substantial identity
between Defendant and Trucking with regard to management, business purpose, operation,
equipment, customers, supervision, and ownership. Thus, there is not an identity of “the facts
creating the right of action and of the evidence necessary to sustain each action.” Sanders
Confectionary Prods., 973 F.3d at 484; see also Heike, 573 F. App’x at 483. Plaintiff’s proof of
claim required only factual evidence of Trucking’s missed withdrawal liability payments, while
Plaintiff’s current claim also requires factual evidence of Defendant’s substantial identity to
Trucking.

This difference between Plaintiff’s claims is highlighted by Defendant’s concession that
“[t]he question of whether Trucking incurred withdrawal liability [is] not an issue in this
matter.” (Brief for Appellant at 38.) (emphasis added). Rather, “[t]he cause of action in this
[matter is] to determine if [Defendant] was an alter ego based [on] whether there [is] an identity
of interests between Trucking and [Defendant] such that [Defendant] would be a new source for
collection of Trucking’s withdrawal liability.” (Id.) In this way, Defendant likens Plaintiff’s
current claim to a post-judgment collection action which “fastens liability” that has been pre-
determined.9 (Id. at 37.) (quoting In re RCS Engineered Prods. Co., Inc., 102 F.3d 223, 226 (6th
Cir. 1996)).

9Defendant’s emphasis of this difference underscores the fact that collateral estoppel—which does not
require an identity of the causes of action—may have been a more successful argument for Defendant. Indeed, the
relief Defendant alludes to throughout its briefs to this Court is the type of relief typically sought in collateral
estoppel cases—barring litigation of an issue—not the type of relief typically sought in res judicata cases, i.e.,
 No. 18-1491 Operating Eng’rs Local 324 v. Bourdow Contracting, Inc. Page 19

Because Plaintiff’s claims do not arise out of, and were not created by, the same
operative facts, we hold that there is no identity of the causes of action. See Winget, 537 F.3d at
580; Sanders Confectionary Prods., 973 F.3d at 484. Accordingly, we hold that the res judicata
effect of Plaintiff’s proof of claim does not bar litigation of the amount of Defendant’s liability.
Thus, the district court did not err by determining that Plaintiff was entitled to a judgment in the
amount of $3,221,981.

CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s grant of summary
judgment.

barring litigation of a claim. See Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir. 1994). However,
Defendant did not raise a collateral estoppel argument until its reply brief. See supra, note 6.