United States District Court, E.D. Missouri, Eastern Division
RYAN KOENIG, JAMES KOENIG, II, on behalf of themselves and all others similarly situated, Plaintiffs,
BOURDEAU CONSTRUCTION LLC, Defendant.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
case comes before the Court on Plaintiffs' Motion for a
Creditor's Bill in Equity and to Pierce the Corporate
Veil to enforce their judgment against defendant. [#62].
Plaintiffs wish to reach the assets of defendant's
alleged alter egos Bourdeau Contracting and James M. Bourdeau
in order to satisfy a judgment against Bourdeau Construction.
The matter has been fully briefed and is ready for
disposition. For the following reasons, the motion will be
granted in part.
were former employees of defendant Bourdeau Construction
L.L.C. who brought suit against defendant alleging that the
plaintiffs were not paid in accordance with the Fair
Standards Labor Act, 29 U.S.C. § 201, et seq.
and Missouri's wage and hour laws. On June 20, 2014,
defendant made an Offer of Judgment in favor of plaintiffs
and against defendant for all causes of action alleged in the
plaintiffs' complaint. [#32]. On July 10, 2014,
plaintiffs accepted defendant's offer of judgment and
subsequently filed a Motion for Attorneys' Fees and
Costs. [#32-33]. On November 26, 2014, this Court entered its
Memorandum and Order granting Plaintiffs' Motion for
Attorneys' Fees and Costs pursuant to the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 216(b),
and Federal Rule of Civil Procedure 68. [#42]. On January 20,
2015, this Court entered a judgment in favor of plaintiffs
and against defendant in the amount of $37, 282.01, which
included attorneys' fees in the amount of $25, 054.10 and
costs in the amount of $563.55. [#44].
December 2, 2015, plaintiffs filed this Motion for a
Creditor's Bill in Equity and to Pierce the Corporate
Veil of Bourdeau Construction to enforce plaintiffs'
judgment against Bourdeau Construction's alleged alter
egos, Bourdeau Contracting, L.L.C. (“Bourdeau
Contracting”) and James M. Bourdeau
(“Bourdeau”) personally. [#62]. To date, the
plaintiffs have recovered nothing from the January 20, 2015
judgment against defendant.
opposes plaintiffs' motion on the basis that 1) Bourdeau
Construction did not have sufficient control over Bourdeau
Contracting and/or Bourdeau to make either a mere alter ego
of Bourdeau Construction, 2) there is no evidence of improper
actions on the part of Bourdeau Construction regarding
Bourdeau Contracting and/or Bourdeau, and that no control was
used to commit a fraud or wrong or violate a positive legal
duty, and 3) there is no evidence that any alleged control by
Bourdeau Construction over Bourdeau Contracting and Bourdeau
breached a duty that proximately caused plaintiffs'
limited liability companies have many similarities between
them. Bourdeau Construction and Bourdeau Contracting both
were created on April 1, 2004. Bourdeau is the 100% owner,
sole member, and registered agent for both companies. Both
companies share the same billing address --- Bourdeau's
home address. However, they are slightly different. Each
company maintains its own employment identification numbers.
They have separate bank accounts and websites. In regard to
services offered, Bourdeau Construction engaged in building
and remodeling residential homes, residential home additions,
decks, kitchens, bathrooms, and basements, but the majority
of its work was building maintenance for commercial
restaurants, including roofing work for those commercial
customers. Bourdeau Contracting's services, in contrast,
are limited to roofing work.
in an affidavit, submitted evidence that Bourdeau
Construction's business slowed down significantly in 2013
and 2014 when many of its commercial customers “sold
out” to franchisees. During this time period, Bourdeau
Construction lost roughly eighty percent (80%) of its
business revenue. According to the affidavit, Bourdeau
Construction had a net income of approximately $35, 986 in
2012, $39, 038 in 2013, and sustained a net loss of $31, 656
in 2014. To counter the losses in Bourdeau Construction,
Bourdeau contributed over $40, 000 of his personal funds to
the company, and he has not been repaid for those
contributions. None of this information is disputed by
plaintiffs. Bourdeau Construction ceases to have any
employees or assets, a bank account, or any customers.
two days after the Court's Memorandum and Order entered
on November 26, 2014, Bourdeau Construction's bank
records show that the company had a balance of $34, 747.12.
The highest balance between November 28, 2014 and December
31, 2014 was $43, 754.80 on December 8, 2014. But by the end
of December 2014, Bourdeau Construction's bank account
was down to $8, 901.31 and was completely empty by March 31,
this critical time period, Bourdeau Construction's bank
records show that on three occasions Bourdeau withdrew money
from one company and deposited it into the other. In
particular, on December 9, 2014, Bourdeau Construction
transferred $1, 000 to Bourdeau Contracting. On December 16,
2014, Bourdeau Construction transferred $6, 900 to Bourdeau
Contracting. On December 22, 2014, Bourdeau Contracting
transferred $4, 000 back to Bourdeau Construction. These
transfers resulted in a net gain for Bourdeau Contracting of
$3, 900.00. Finally, Bourdeau Construction's last check
went to Bourdeau himself for $1, 030.61 on March 10, 2015.
do not claim defendant improperly paid bills to other
creditors. However, they contend that Bourdeau
Construction's bank account was drained in a four month
period and that the checks made between Bourdeau Construction
and Bourdeau Contracting and Bourdeau himself are evidence of
wrongdoing. These checks, however, resulted in only a $4,
930.61 net loss to the account out of $43, 754.80 total
during the four-month period. Plaintiffs tacitly concede that
the difference was legitimately paid to other creditors.
absence of a controlling federal statute, the district court
“has 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 Gen., 994 F.2d 476, 477 (8th Cir. 1993) (quoting
United States ex rel Goldman v. Meredith, 596 F.2d
1353, 1357 (8th Cir. 1979)). The Eighth Circuit has
“recognized the availability of the creditor's bill
in equity under Missouri law.” H.H. Robertson
Co., 994 F.2d at 477.
Creditor's Bill and ...