Carpenters' District Council Of Greater St. Louis and Vicinity et al v. Neier Services Company, Inc. d/b/a Pro-Services
MEMORANDUM AND ORDER -... IT IS HEREBY ORDERED that attorney Greg A. Campbell shall provide a copy of Rule 5.2, Fed. R. Civ. P., and this Courts Local Rule 2.17 to each attorney, legal assistant or other person at his law firm who engages in electronic filing or directs others to do so, and instruct them to read the Rules. Any future disclosures of personal data identifiers by plaintiffs or their counsel may result in the imposition of sanctions. Mr. Campbell shall file a verified state ment detailing his compliance with this order by July 10, 2015. IT IS FURTHER ORDERED that plaintiffs Amended Motion for a Creditors Bill in Equity and to Pierce the Corporate Veil is DENIED. [Doc. 26] ( Response to Court due by 7/10/2015.). Signed by District Judge Charles A. Shaw on 6/30/2015. (MRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CARPENTERS’ DISTRICT COUNCIL OF
GREATER ST. LOUIS and VICINITY, et al., )
NEIER SERVICES COMPANY, INC., d/b/a )
No. 4:13-CV-1603 CAS
MEMORANDUM AND ORDER
This closed matter was brought under Section 301 of the Labor Management Relations Act
of 1947, 29 U.S.C. § 185 (“LMRA”), and Sections 502(g)(2) and 515 of the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132(g)(2) and 1145. It is currently before
the Court on plaintiffs’ Amended Motion For a Creditor’s Bill in Equity and to Pierce the Corporate
Veil. Plaintiffs are a labor organization, several ERISA employee benefit plans, and the trustees and
fiduciaries of those plans. Plaintiffs sued defendant Neier Services Company, Inc. (“NSC”) for
unpaid contributions to the plans required under a collective bargaining agreement and obtained a
judgment against it. Plaintiffs now seek to collect the judgment from NSC’s alleged alter ego, Pro
Services Contractors, Inc. NSC opposes the motion and it is fully briefed. For the following
reasons, plaintiffs’ motion will be denied.
I. The Parties’ Violations of Federal Rule of Civil Procedure 5.2(a) and Local Rule 2.17
As a threshold matter, the Court must address the parties’ actions in filing exhibits to their
memoranda that contain personal data identifiers. Federal Rule of Civil Procedure 5.2(a) provides:
(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper
filing with the court that contains an individual’s social-security number,
taxpayer-identification number, or birth date, the name of an individual known to be
a minor, or a financial-account number, a party or nonparty making the filing must
(1) the last four digits of the social-security number and taxpayer-identification
(2) the year of the individual’s birth;
(3) the minor’s initials; and
(4) the last four digits of the financial-account number.
Rule 5.2(a), Fed. R. Civ. P. The Rule was adopted to comply with the E-Government Act of 2002,
Public Law 107-347. See Rule 5.2 advisory committee’s note. This Court’s Local Rule 2.17(A)
similarly requires redaction of personal data identifiers and also states that home addresses of nonparties should not appear in any filing, but if a home address must be included, only the city and
state may be listed. E.D. Mo. L.R. 2.17(A)(5).
Plaintiffs blatantly violated these rules by filing numerous exhibits that contain social
security and taxpayer identification numbers, complete financial account numbers, and full home
addresses of non-parties to this action. (See various exhibits to Docs. 20, 26, 27.) Defendant
violated Local Rule 2.17(A)(5) by filing exhibits that include full home addresses of non-parties to
this action. (See various exhibits to Doc. 35.)
Upon discovering the extent of the disclosure violations in the record, the Court ordered the
Clerk to restrict access to the improperly filed exhibits to protect the privacy of the individuals and
entities whose personal data identifiers are listed therein. However, “The clerk is not required to
review documents filed with the court for compliance with this rule. The responsibility to redact
filings rests with counsel and the party or non-party making the filing.” Fed. R. Civ. P. 5.2 advisory
committee’s note. As another judge in this Circuit has observed, the consequences of violating the
Rule are serious and, as a result, violations can warrant the imposition of sanctions:
“Parties must remember that any personal information not otherwise
protected by sealing or redaction will be made available over the internet.” Fed. R.
Civ. P. 5.2 advisory committee’s note. Every federal district has now embraced
electronic filing. The days of attorneys being able to ignore the computer and shift
blame to support staff in the event of an error are gone. The consequences are
simply too serious. To the extent there are attorneys practicing in federal court who
are under the impression that someone in the Clerk’s office will comb their filings
for errors and call them with a heads-up, the Court delivers this message: It is the
responsibility of counsel to ensure that personal identifiers are properly redacted.
The Court does not have the resources to review and correct filings. The days of
paper filings—with accessibility to files limited not by law but by the practical
challenges of driving downtown, paying for parking, checking out the file, and
paying the friendly clerk of court to make copies—are gone. Attorneys who are slow
to change run the very real risk of sanctions.
Allstate Ins. Co. v. Linea Latina De Accidentes, Inc., 2010 WL 5014386, at *2-3 (D. Minn. Nov.
24, 2010) (imposing sanctions where plaintiffs took no opportunity to redact birth dates, minors’
names, financial account numbers, and at least one social security number for “months after they had
received notice of violations of Rule 5.2(a)”; requiring attorney to pay monetary sanction of $300
and pay for credit monitoring for the affected individuals).
The Court is particularly troubled by plaintiffs’ disregard of their obligations under Rule
5.2(a) and Local Rule 2.17(A), as plaintiffs are frequent litigants who have filed over 200 similar
cases in this Court. Plaintiffs’ attorney Greg A. Campbell has appeared in over 1200 cases here.
While some of these cases and appearances pre-date the E-Government Act of 2002, many do not.
The potential consequences arising from the disclosure of personal data identifiers are very serious
and are too well known to require discussion here. In the future, plaintiffs and their counsel must
be vigilant to avoid disclosing personal data identifiers, and must redact such information or file any
documents that contain personal data identifiers under seal, in accordance with this Court’s
procedures.1 See Section VI.B., Administrative Procedures for Case Management/Electronic Case
Mr. Campbell will be ordered to provide a copy of Rule 5.2 and Local Rule 2.17 to each
attorney, legal assistant or other person at his law firm who engages in electronic filing or directs
others to, and instruct them to read the Rules. Any future disclosures of personal data identifiers by
plaintiffs or their counsel may result in the imposition of sanctions. Mr. Campbell shall file a
verified statement indicating his compliance with this order.
II. Procedural History
On August 16, 2013, plaintiffs filed suit against NSC to collect delinquent contributions,
liquidated damages, interest, attorneys’ fees and costs owed pursuant to collective bargaining
agreements and under the terms of ERISA, 29 U.S.C. § 1132. NSC was served with summons and
complaint on August 21, 2013, but did not enter an appearance or respond to the complaint. A
Clerk’s Entry of Default was entered on October 15, 2013, and the Court entered default judgment
against NSC on October 25, 2013 in the amount of Thirty-Three Thousand Nine Hundred TwentyFive Dollars and Seventy-Four Cents ($33,925.74).
Plaintiffs have attempted to collect the judgment but to date have only collected $42.10. By
the instant motion, plaintiffs seek to satisfy the remainder of their judgment against NSC from assets
of its alleged alter ego, Pro-Services Contractors, Inc. (“PSC”).
Plaintiffs and their counsel should give consideration to reviewing other cases they have
filed in this Court, both pending and closed, and filing motions to seal any documents that disclose
personal data identifiers in violation of Rule 5.2 or Local Rule 2.17.
NSC is an administratively dissolved Missouri corporation that performed general
contracting work for residential and commercial customers. NSC did business under the name ProServices. NSC was incorporated on May 12, 2009 and registered the fictitious name Pro-Services
on July 2, 2009. NSC’s original officers were Marie Neier, President and Secretary, and Todd
Neier, her husband, Vice President. Todd Neier was the sole director. (2009 Annual Report.)2
NSC’s principal place of business was the Neiers’ home address.
NSC was administratively dissolved on December 22, 2009 for failure to file an annual
registration report but was reinstated on or about March 7, 2012. In 2011, NSC’s directors were
Marie Neier and Ross Boring of Brainerd, Minnesota. (2011 Annual Report.) In 2012, Deborah
Orcutt became NSC’s Secretary and Marie Neier became the sole director. (2012 Annual Report.)
Ms. Orcutt is an accountant and owns an accounting firm, B. L. Orcutt & Co., Inc., located at 9714
Lackland Road in Overland, Missouri. Ms. Orcutt handled payrolls, performed bank reconciliations,
and handled payroll taxes and tax returns for NSC. Ms. Orcutt was made Secretary so she could
sign NSC’s payrolls and tax returns.
In March 2013, Todd Neier moved out of the Neier family home and made efforts to
purchase NSC from Marie Neier. Todd Neier testified that Mrs. Neier refused his buyout offer
because she did not like the fact that the money to purchase it would be coming from Ross Boring
and his wife Dixie. NSC’s 2013 Annual Report, filed June 29, 2013, lists Todd Neier as President,
Deborah Orcutt as Secretary, no Vice President, and Todd Neier and Ross Boring as directors. The
The Court takes judicial notice of the Missouri Secretary of State’s records concerning NSC
and PSC. NSC’s 2009, 2010 and 2011 Annual Reports were all filed on March 7, 2012.
principal place of business was changed to 9714 Lackland Road in Overland, Missouri. This
location was also the business address of NSC’s Secretary and accountant, Ms. Orcutt.
A Statement of Correction dated August 8, 2013 was filed with the Missouri Secretary of
State, signed by Todd Neier as Vice-President. This Statement of Correction changed NSC’s 2013
Annual Report to reflect Marie Neier as President and sole director, and Todd Neier as Vice
President and Secretary. The reason stated for the correction was, “Annual Registration Report was
filed with the understanding that the business was to transfer however that did not take place so the
correction are [sic] to put back on the board and officers at that time.” Mr. Neier filed for divorce
in August 2013. Ms. Neier resigned as NSC’s accountant in August 2013.
On March 30, 2015, another Statement of Correction to NSC’s 2013 Annual Report was filed
with the Secretary of State, signed by Todd Neier. The signature line on the Statement of Correction
shows Mr. Neier’s title as “None”.3 The error corrected was described as: “Principal Place of
Business changed to 12 Lawrence Dr.[,] Creve Coeur, Mo 63141 as of August 12, 2013. Todd Neier
resigned as of August 12, 2013 as Vice President and Sec’y[.]” The reason given for the correction
was: “Todd Neier has no association with the corporation as of August 30, 2013[.]” NSC was
administratively dissolved on April 21, 2015 for failing to file an annual report.
Todd Neier was employed by NSC as a project manager and worker. In that role, Mr. Neier
hired and fired employees, bid jobs, directed employees in the field, went to suppliers and obtained
supplies, performed carpentry work, and signed checks and contracts on behalf of NSC. Marie
Neier worked on billings, bidding and invoicing. Ms. Orcutt handled NSC’s payrolls, payroll taxes
and tax returns, and performed its bank reconciliations. Ms. Orcutt made a personal loan to NSC
NSC did not file a 2014 Annual Report.
in the amount of $30,000. NSC had a bank account with Enterprise Bank and Trust. In August
2013, NSC had four employees: Todd Neier, Dwayne Hills, Dave Becker and Mike McGrotty. In
August 2013, NSC was working on a job for SSS Investments but could not finish the job because
it had no money to pay employees. Todd Neier testified that he left NSC because “there was no
money to pay me and to support my family.” Neier Dep. at 33:15-16.
Ross and Dixie Boring were friends of Todd Neier’s family who previously lived near them
in St. Louis. Mr. Neier first met the Borings when he was five or six years old. The Borings loaned
over $21,000 to NSC after Neier spoke with them about seeking financial assistance for the
company. Some of the money NSC borrowed from the Borings went to pay its bills and purchase
supplies for projects. Ross Boring communicated with the plaintiff employee benefit funds on
NSC’s behalf several times in 2011, including sending a fax to their controller and accountant, Juli
Laramie, that stated it was from “Ross Boring For Pro Services.” Campbell Suppl. Aff., Ex. 13.
Ross Boring communicated by email with Todd Neier in 2011 and 2012 concerning day-to-day
details of NSC’s jobs and business, referring to “we” and “our” many times in connection with its
operation, offering advice, and making suggestions for contract language.4 In February 2012, Ross
For example, an email of October 21, 2011 from Ross Boring to Todd Neier stated in part,
When you can I need the receipts for the motel rooms he paid for and for all the
materials purchased last week and this including Sam’s $100 plus today as well as
how much we owe him for his fine work. Without those numbers our payables look
lower than they actually are.
I would also ask that you check to be sure our $100 weekly payment check went into
the mail today to the carpenters union
We have made tremendous progress over the past 6 weeks. I have some concern
with the lack of business going forward so one item we really need to discuss is
Mary’s bathroom job. That would certainly be a nice fill in until SnS actually
Boring communicated by email with the project manager of NSC’s general contractor Abayla
Contracting Services, Inc.. The email sent shop drawings to Abayla and discussed project details
and supplies. The email was signed, “Ross Boring, Pro Services.” See Campbell Suppl. Aff., Ex.
9. Mr. Boring sent a lengthy email to Todd Neier in July 2012 that explained and discussed
potential problems with language in a proposed subcontract, and “recommend[ed] that we try to
handle this like the last project we did with Zernco and get them to sign our contract without ProServices’ [sic] signing theirs.” Id., Ex. 10. Mr. Boring signed a lien waiver on behalf of NSC in
March 2012. Id., Ex. 12. In September 2011, Mr. Boring emailed Ms. Orcutt concerning money
the Borings had put into NSC, and discussing “what [Ms. Orcutt was] working on for us and the
union.” Id., Ex. 17.
On August 12, 2013, Pro Services Contractors, Inc. (“PSC”) was incorporated in Missouri.
It was owned by Ross and Dixie Boring. Its registered agent was Deborah Orcutt, and the
incorporators were Ross and Dixie Boring. PSC’s officers were Dixie Boring, President; Ross
Boring, Vice-President; Deborah Orcutt, Secretary; and the Borings, Directors. PSC’s principal
place of business was 9710 Lackland Road in Overland, Missouri, near to Ms. Orcutt’s accounting
business. (2013 Annual Report.)5 Todd Neier spoke with the Borings about working for PSC before
releases more projects.
You were dead tired when we spoke about the quotes John asked for on the trash
enclosures and I got the impression you weren’t real happy with our tuck pointer.
I know John asked for quotes before we started the Maplewood store so I would
appreciate an update.
Supplemental Aff. of Greg A. Campbell, Ex. 8.
PSC filed Articles of Dissolution by Voluntary Action on January 30, 2015 and a Request
for Termination on April 8, 2015.
he quit NSC. The Borings came up with the idea to create PSC after Neier spoke with them about
the problems NSC was having.
In August 2013, PSC took over and completed the SSS Investments job that NSC had been
working on. NSC and PSC separately billed SSS Investments for the portions of the job that each
company performed. PSC is a general contractor for commercial and residential projects but mainly
commercial. Todd Neier testified the general contracting work PSC performs is different than the
general contracting work NSC performed because PSC does “bigger jobs.”
Todd Neier works for PSC as sales manager and also in the field as a carpenter. Mr. Neier
goes out and finds work, bids projects, directs the employees in the field, and obtains supplies. Mr.
Neier collects resumes or information from potential employees and recommends who the Borings
should hire. Mr. Neier does not sign checks for PSC and does not have an ownership interest in
PSC, although his public LinkedIn profile shows him as “owner” of “Pro-Services” from February
2004 to the present.6
The Borings own PSC. Ross Boring’s job duties are billing and bidding. Dixie Boring types
up the bids and does the invoicing. Todd Neier testified that the Borings visit job sites when they
are in St. Louis from Minnesota, normally twice a year, but Ms. Orcutt testified that while the
Borings come to St. Louis “every now and then in the office,” they never visit job sites.
Todd Neier testified that PSC has four employees: Neier, Dwayne Hills, David Lichtenstein,
and Robert Slater. However, PSC’s Missouri Department of Labor and Industrial Relations
quarterly contribution and wage report for the first quarter 2014 does not list an employee named
David Lichtenstein. Instead, it lists a David Becker with the same Social Security Number as the
See https://www.linkedin.com/pub/todd-neier/25/660/a02 (last accessed June 24, 2015).
David Becker who had worked for NSC. Thus, three of PSC’s four employees were previously
employed by NSC.
Deborah Orcutt handles payroll, payroll taxes and tax returns for PSC and signs checks on
its behalf, as she did for NSC. PSC’s bank account is at Enterprise Bank and Trust, as was NSC’s.
Ms. Orcutt testified that NSC owned a Ford truck that was repossessed by Ross Boring. Todd Neier
testified that NSC owned a trailer but did not own a Ford truck. Neier testified that the truck was
titled in his name personally, that Ross Boring held a lien on the truck, and NSC made payments to
Mr. Boring for the truck. At some point Mr. Boring repossessed the truck because NSC failed to
make the payments, and the same truck is now being used for PSC’s business but is not titled in
Todd Neier’s name. NSC used a dump trailer that was owned by Todd Neier’s friend Ron Viemann.
After PSC was formed, Mr. Viemann sold the dump trailer to the Borings and it is used in PSC’s
This matter is governed by ERISA, 29 U.S.C. §§ 1132(a)(3)(ii) and 1145, and the LMRA,
29 U.S.C. § 185(a). Jurisdiction and venue are proper in this Court.
Plaintiffs assert that PSC is an alter ego of NSC. If this is correct, then plaintiffs can pierce
PSC’s corporate veil and attempt to collect from it the judgment they hold against NSC. The alter
ego doctrine developed under the National Labor Relations Act, 29 U.S.C. §§ 151 et seq., focuses
“on the existence of a disguised continuance of a former business entity or an attempt to avoid the
obligations of a collective bargaining agreement.” Greater Kansas City Laborers Pension Fund v.
Superior General Contractors, Inc., 104 F.3d 1050, 1055 (8th Cir. 1997) (quoted case omitted); see
also Trustees of the Graphic Commc’ns Int’l Union Upper Midwest v. Bjorkedal, 516 F.3d 719, 727
n.2 (8th Cir. 2008) (citing cases).
“In determining whether two business entities are alter egos, . . . courts consider a variety
of factors, including whether the two entities have substantially identical management, business
purpose, operation, equipment, customers, supervision, and ownership.” Midwest Precision Heating
and Cooling, Inc. v. N.L.R.B., 408 F.3d 450, 458 (8th Cir. 2005) (cited case omitted). Courts “also
consider whether a motive for the new entity’s taking over of the operations of the old entity was
to evade responsibilities under the Act and whether dealings between the two entities were at arm’s
length.” Id. at 458-59 (cited case omitted). This test is flexible, so the lack of any particular factor
does not preclude a finding of alter ego status. Id. at 459 (citing N.L.R.B. v. Campbell-Harris Elec.,
Inc., 719 F.2d 292, 296 (8th Cir. 1983) (affirming NLRB finding that ownership and management
of first company, a two-man partnership, was substantially identical to that of second company, a
Federal courts have “the same authority to aid judgment creditors in supplementary
proceedings as that which is provided to state courts under local law.” H.H. Robertson Co. v. V.S.
DiCarlo General Contractors, Inc., 994 F.2d 476, 477 (8th Cir. 1993) (citation omitted). The Eighth
Circuit has “recognized the availability of the creditor’s bill in equity under Missouri law.” Id. The
creditor’s bill in equity is a long-established tool to assist creditors who seek “to enforce the
payment of debts out of assets that cannot be reached by traditional means of execution on a
judgment established in a suit at law.” Shockley v. Harry Sander Realty Co., Inc., 771 S.W.2d 922
(Mo. Ct. App. 1989).
Prerequisites to the issuance of a creditor’s bill are the “existence of a judgment, the issuance
of an execution against assets of the judgment debtor and a nulla bona return thereon.” Id. at 925.
The fact that a corporation’s alleged alter ego was not itself either a judgment debtor or a party in
the original action is irrelevant. H.H. Robertson Co., 994 F.3d at 478. Although a creditor’s bill can
be brought in a separate equitable action, it is appropriate to bring it by motion in the underlying
lawsuit where judgment was originally obtained. Fleming Cos., Inc. v. Rich, 978 F. Supp. 1281,
1294 (E.D. Mo. 1997). “A creditor’s bill is considered the equitable equivalent of garnishment on
execution and is comparable to proceedings supplementary to and in aid of execution.” Shockley,
771 S.W.2d at 925 (citing United States ex rel. Goldman v. Meredith, 596 F.2d 1353, 1357 (8th Cir.
Plaintiffs have established the necessary prerequisites to the issuance of a creditor’s bill, as
they have a judgment against NSC, they issued execution against its assets at Enterprise Bank, and
the garnishment was returned with the response that NSC had no accounts. To prevail on their
motions, plaintiffs must also establish that PSC is NSC’s alter ego.
Plaintiffs contend that PSC is the alter ego of NSC because of the commonality of (1)
constructive ownership, (2) management and supervision, (3) business purpose, (4) operations, (5)
employees, (6) customers, (7) equipment, and (8) facilities. Plaintiffs also argue that PSC was
formed to allow NSC to avoid its obligations under the collective bargaining agreement after
plaintiffs threatened legal action for NSC’s delinquencies. Plaintiffs point to the facts that PSC was
formed less than ninety days after they threatened legal action on NSC’s delinquencies, and
immediately after PSC’s formation, NSC was out of business as Mr. Neier, Ms. Orcutt, the Borings
and the employees left to go to PSC, leaving Mrs. Neier with an indebted business she had never
Plaintiffs assert that Todd Neier was an owner of NSC based on his family ties and familial
control with his former wife Marie Neier, and that the Borings had a financial interest in NSC based
on the loans they made to it. The Court finds that Todd Neier is properly considered to have been
an owner of NSC based on his spousal connection with Marie Neier,7 but there are no facts to show
that Todd Neier has any ownership interest in PSC, or that NSC or Todd Neier have any financial
control over PSC. The uncontroverted facts are that the Borings are the sole owners of PSC.
Further, while the Borings loaned money to NSC and Mr. Boring had involvement in NSC’s
business operations that went beyond mere creditor status, there are no facts to show that either of
the Borings had an ownership interest in NSC, or that they had financial control over NSC.
Therefore, there is no common ownership between NSC and PSC. This factor weighs against alter
ego status and is in fact determinative of that status, as discussed below.
The Court finds that Todd Neier controlled the day-to-day operations of NSC, as he was its
project manager and bid jobs, hired and fired employees, directed employees in the field, obtained
supplies, and signed checks and contracts on its behalf, in addition to working for it as a carpenter
and serving as an officer and director. The Court finds that Mr. Neier occupies a similar but not
identical status with PSC, as he is its sales manager, bids projects, goes out and finds work, directs
the employees in the field, and obtains supplies in addition to working for it as a carpenter. Mr.
Neier does not have authority to sign checks for PSC or to hire on its behalf, but instead collects
resumes or information from potential employees and recommends hires to the Borings. Mr. Boring
See, e.g., N.L.R.B. v. Dane County Dairy, 795 F.2d 1313, 1322 (7th Cir. 1986) (“Familial
control constitutes common ownership and control.”); Greater St. Louis Constr. Laborers Welfare
Fund v. Mertens Plumbing and Mech., Inc., 552 F.Supp.2d 952, 955 (E.D. Mo. 2007) (spousal
connection between owners establishes common ownership); Greater St. Louis Construction
Laborers Welfare Fund v. Kirkwood Masonry, Inc., 2014 WL 1048597, at *3 (E.D. Mo. Mar. 14,
2014) (businesses deemed to have common ownership where owned by brothers-in-law).
handles billing and is involved in bidding, and Mrs. Boring types up bids and handles invoicing.
The fact that PSC’s owners only come to St. Louis twice each year supports the finding that Mr.
Neier controls PSC on a day-to-day basis in the field. This factor supports alter ego status.
The Court finds that NSC and PSC shared the same business purpose, as each performed
residential and commercial contracting work. Although PSC worked on bigger commercial projects
than NSC did, the common business purpose factor does not require that services performed by two
companies be identical. See Greater Kansas City Laborers Pension Fund v. Thummel, 738 F.2d 926,
928-29 (8th Cir. 1984) (corporation was alter ego of sole proprietorship although corporation did
mostly commercial masonry work and sole proprietorship did mostly residential masonry work).
NSC and PSC used some of the same equipment, had substantial continuity of employees,
utilized the same accountant and had their accounts at the same bank. NSC and PSC shared at least
one customer, as PSC completed the SSS Investments job that NSC was engaged in at the time PSC
began operating, apparently without any break in service to the customer. These factors weigh in
favor of a finding of alter-ego status.
With respect to corporate purpose, the Court finds that PSC was formed in order to allow
Todd Neier to continue in the same business he conducted with NSC, but there is no persuasive
evidence that PSC was formed with the intent to avoid NSC’s obligations to the plaintiffs. It is
undisputed that Todd Neier attempted to purchase NSC from Marie Neier during the Neiers’ divorce
proceedings, but Marie rejected the offer. Only after the purchase offer was rejected did the Borings
form PSC. It is true that both NSC and PSC did business under some form of the name ProServices, and Todd Neier has held himself out as the owner of Pro-Services from 2004 to the
present. While PSC’s use of a very similar name to that under which NSC did business enabled it
to maintain name recognition without the burden of NSC’s liabilities, there is no evidence PSC was
formed in order to avoid those liabilities. However, National Labor Relations Board (“NLRB”)
decisions “have concluded that while a motive to avoid bargaining can help establish alter ego
status, it is not a requirement to finding a violation or liability by the new entity because it is
important to protect the interests of the employees, regardless of the employer’s motive in making
the corporate changes.” See, e.g., Allcoast Transfer, 271 N.L.R.B. 1374 (1984). This factor is
therefore neutral with respect to alter-ego status.
As stated above, the determining factor in this case is the lack of common ownership
between NSC and PSC. Plaintiffs refer to Todd Neier’s “constructive ownership” of PSC, but do
not offer any facts to show that the Borings’ ownership of PSC is a sham and that Todd Neier is
PSC’s actual owner, or that NSC or Todd Neier have financial control over PSC. Plaintiffs have not
cited any authority to support their proposition that the ties of friendship between Todd Neier and
the Borings, as opposed to a family relationship, can be a basis for a finding of common ownership.
Such a proposition appears contrary to National Labor Relations Board precedent. The NLRB
recently stated that “it has only found alter egos in the absence of common ownership where both
companies were ‘either wholly owned by members of the same family or nearly totally owned by
the same individual or where the older company maintained substantial control over the new
company.’” Island Architectural Woodwork Inc., __ NLRB __, 2015 WL 2156772 (May 8, 2015)
(quoting Cadillac Asphalt Paving Co., 349 NLRB 6, 8 (2007)).
In Cadillac Asphalt Paving, the NLRB held that two employers were neither a single
employer nor alter egos in circumstances similar to the instant case. The first company was wholly
owned by a Mr. Levy, who had complete operational control over it. The second company was
owned 50 percent by Mr. Levy and 50 percent by an entity called MPMC, which had complete
operational control over the second company. In reviewing the facts of the case, the NLRB
observed that there was “substantially identical” supervision and operations of the companies’
Teamsters Units, and that the two companies had “substantially identical” business purposes,
equipment, premises and customers. 349 NLRB at 8. Nonetheless, the NLRB refused to find that
the companies were alter egos, stating the evidence of substantial commonalities did not “outweigh
the . . . evidence showing separate ownership and control and the lack of identical management, as
well as the lack of evidence to suggest that [the second company] was formed for other than
legitimate business reasons.” Id. The NLRB concluded, “Simply put, too many of the critical
factors traditionally relied upon by the Board to support alter ego findings are absent here.” Id.
(quoted case omitted).
Based on the foregoing precedent, the Court finds that PSC is not an alter ego of NSC despite
the substantial commonalities between the companies, because NSC and PSC are not wholly owned
by members of the same family or nearly totally owned by the same individual, and there is no
evidence that NSC maintains any control over PSC. See Cadillac Asphalt Paving, 349 NLRB at 8.
Further, there is no evidence that ownership and management of NSC and PSC are substantially
identical. See Campbell-Harris Elec., Inc., 719 F.2d at 296. Because plaintiffs have failed to
establish common ownership or control of the two companies such that PSC can be considered the
alter ego of NSC, their motion for a creditors bill in equity must be denied.
For the foregoing reasons, plaintiffs have not shown that Pro Services Contractors, Inc. is
the alter ego of defendant Neier Services Company, Inc. Plaintiffs are therefore not entitled to a
creditor’s bill in equity against Pro Services Contractors, Inc. to satisfy their judgment against Neier
Services Company, Inc.
IT IS HEREBY ORDERED that attorney Greg A. Campbell shall provide a copy of Rule
5.2, Fed. R. Civ. P., and this Court’s Local Rule 2.17 to each attorney, legal assistant or other person
at his law firm who engages in electronic filing or directs others to do so, and instruct them to read
the Rules. Any future disclosures of personal data identifiers by plaintiffs or their counsel may
result in the imposition of sanctions. Mr. Campbell shall file a verified statement detailing his
compliance with this order by July 10, 2015.
IT IS FURTHER ORDERED that plaintiffs’ Amended Motion for a Creditor’s Bill in
Equity and to Pierce the Corporate Veil is DENIED. [Doc. 26]
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
day of June, 2015.
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