          United States Court of Appeals
                     For the First Circuit


No. 15-2553

 EDWARD F. GRODEN, FUND MANAGER OF THE NEW ENGLAND TEAMSTERS AND
                 TRUCKING INDUSTRY PENSION FUND,

                      Plaintiff, Appellant,

                               v.

      N&D TRANSPORTATION COMPANY, INC.; LAURENT J. DUHAMEL;
        ELIZABETH A. DUHAMEL; JED REALTY ASSOCIATES, LLC,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS
            [Hon. Rya W. Zobel, U.S. District Judge]


                              Before
                  Torruella, Lipez, and Barron,
                         Circuit Judges.


     Melissa A. Brennan, with whom Catherine M. Campbell and
Feinberg, Campbell & Zack, PC were on brief, for appellant.
     Oleg Nikolyszyn for appellees Laurent J. Duhamel and
Elizabeth A. Duhamel.
     Robert A. Mitson, with whom Mitson Law Associates was on
brief, for all appellees.


                         August 2, 2017
            LIPEZ, Circuit Judge.               In this appeal, we consider

whether the Supreme Court's decision in Peacock v. Thomas, 516

U.S. 349 (1996), requires dismissal of a pension fund's lawsuit

against an employer's alleged alter egos.                 Specifically, we must

decide whether there is federal subject matter jurisdiction for

the fund's suit seeking $1.2 million in unpaid withdrawal liability

that previously was assessed against the employer in a default

judgment.      The pension fund's manager, appellant Edward F. Groden,

maintains      that   subject   matter     jurisdiction         exists   under   the

Employee    Retirement      Income   Security       Act    of    1974    ("ERISA").

Concluding otherwise, the district court dismissed the case and

subsequently denied appellant's motion for post-judgment relief.

Having carefully reviewed the law and the fund's allegations, we

vacate the court's post-judgment ruling and remand the case for

further proceedings.

                                         I.

A. Background

            In    September     2012,    the     New   England     Teamsters     and

Trucking Industry Pension Fund ("the Fund") secured a default

judgment in federal court against D&N Transportation, Inc. ("D&N")

for unpaid withdrawal liability the company owed, pursuant to ERISA

as   amended     by   the   Multiemployer       Pension   Plan    Amendments     Act




                                        - 2 -
("MPPAA"), when it ceased operations.1      See 29 U.S.C. §§ 1132(e);

1381; 1451.2       Defendants Laurent and Elizabeth Duhamel ("the

Duhamels"), who are husband and wife, were D&N's sole stockholders

during the company's forty-odd years in business.       Eighteen months

after the default judgment, with no payments having been made, the

Fund filed a new complaint -- i.e., this action -- against the

Duhamels,    N&D   Transportation,   Inc.   ("N&D"),   and   JED   Realty

Associates, LLC ("JED Realty"), seeking to hold them liable for

the withdrawal liability.




     1 The action was filed on behalf of the Fund by its then
manager, Charles Langone, who was later succeeded in that position
by Edward F. Groden.    In September 2016, we granted Langone's
assented-to motion to substitute Groden as plaintiff-appellant in
this appeal. For convenience, we refer to appellant as "the Fund."

     2 We borrow the Ninth Circuit's explanation of withdrawal
liability:

            ERISA, which was enacted in 1974, was intended
            to protect employees covered by pension plans
            from being deprived of anticipated benefits
            because of employer underfunding.     When it
            turned out to do so inadequately, MPPAA was
            enacted in 1980 to reduce an employer's
            incentive to terminate its affiliation with a
            multiemployer pension plan by requiring
            employers who do withdraw to pay the unfunded
            vested    benefits   attributable    to    the
            withdrawing employers' participation.

Resilient Floor Covering Pension Fund v. M&M Installation, Inc.,
630 F.3d 848, 851 (9th Cir. 2010); see also Sun Capital Partners
III, LP v. New Eng. Teamsters & Trucking Indus. Pension Fund,
724 F.3d 129, 138 (1st Cir. 2013).
                              - 3 -
            The Fund claimed, inter alia, that the Duhamels and N&D,

a corporation owned by their two children (Nancy Belsito and David

Duhamel), are alter egos of D&N and, accordingly, are equally

responsible for the unpaid ERISA obligation. The Fund also alleged

that JED Realty, another business owned by David Duhamel, is an

alter ego of N&D and, as such, is likewise responsible for the D&N

debt.    In support of its alter ego contentions, the Fund asserted,

inter alia, that the operations of D&N and N&D overlapped in

significant respects, including use of the same office space and

telephone number, joint insurance coverage, linked bank accounts,

and shared employees.3    Put simply, the Fund alleges that D&N and

N&D were, in practical effect, the same entity, with "common

ownership, management, business purpose, customers, employees and

operation." In addition, the Fund claims that the Duhamels as

individuals took "functional[] control" of D&N's assets when they

sold the company's building to JED Realty and assigned the mortgage

on the property to themselves personally.    Langone v. N&D Transp.

Co. ("Langone I"), No. 1:14-cv-11028-RWZ, Mem. Dec. at 2 (D. Mass.

Aug. 27, 2015).    The Fund's first amended complaint includes two



     3 Certain of these overlaps were alleged in the complaint,
while others were asserted in the Fund's Opposition to the Motions
to Dismiss. See Docket No. 52, Opposition to Motion, July 6, 2015,
at 10-11. When considering motions to dismiss for lack of subject-
matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), the court may consider materials outside the pleadings.
See González v. United States, 284 F.3d 281, 288 (1st Cir. 2002).
                               - 4 -
counts stemming from this transaction, one alleging a fraudulent

transfer and the other seeking to reach and apply the funds owed

by JED Realty to the Duhamels.

            The defendants moved to dismiss the amended complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Citing the Supreme Court's decision in Peacock, which we describe

below, defendants argued that suits premised on an alter ego theory

or based on piercing a corporate veil do not present a federal

question.    They also invoked Futura Development of Puerto Rico,

Inc. v. Estado Libre Asociado De Puerto Rico, 144 F.3d 7 (1st Cir.

1998), in which this court rejected an alter ego claim as a basis

for ancillary federal jurisdiction.      Defendants asserted that the

Fund's complaint does not specify any ERISA provision authorizing

the Fund to enforce the judgment rendered in the earlier action

against third parties.   Hence, defendants contended, the complaint

should be dismissed for lack of federal subject matter jurisdiction

and because it failed to state a claim for which relief could be

granted.    Defendants also challenged the fraudulent transfer claim

on multiple additional grounds, including that it was untimely.

B. The District Court's First Ruling

            The district court initially granted the defendants'

motion to dismiss based on the factual inadequacy of the complaint.

Langone I, at 8-9.   Although the court noted differences among the

circuits as to when federal subject matter jurisdiction exists for
                                 - 5 -
"a follow-on suit to collect an ERISA judgment from an alleged

alter ego of a judgment-debtor," id. at 7, the court sidestepped

that       legal   issue   because     it    found    the   Fund's    allegations

insufficient to support an inference that any defendant was D&N's

alter ego at the time D&N violated ERISA, id. at 8-9.4                  The court

thus dismissed the alter ego counts (Counts I, II, and V) for

failure to state a claim, and it declined to exercise supplemental

jurisdiction over the state law fraudulent-transfer and reach-and-

apply claims (Counts III and IV).5

              The Fund responded by filing a motion for relief from

judgment      under   Federal   Rule    of    Civil    Procedure     60(b)(6)   or,

alternatively, to amend the judgment under Rule 59(e).                   The Fund

argued, inter alia, that the district court had misconstrued ERISA

case law and that, under the correct analysis, the Fund could

"easily remed[y]" its failure to allege the pertinent timing

through an amendment to its complaint.                The court committed legal

error, according to the Fund, by holding that a valid ERISA claim



       4
       Among other points, the court noted that the complaint
"d[id] not allege that N&D had or breached any duties under an
ERISA plan, nor does it allege that N&D was a fiduciary of an ERISA
plan." Langone I, at 8.
       5
       The court also denied the Fund's motion to file a second
amended complaint to add defendants on the ground that it would be
futile "to assert the same legally flawed claims that are in the
current operative complaint against additional defendants."
Langone I, at 11.

                                       - 6 -
requires a showing that the defendants were plan fiduciaries.         The

Fund also pointed to the court's incorrect statement that its first

amended complaint did not allege that N&D is an "employer" within

the meaning of ERISA.      See 29 U.S.C. §§ 1002(5), 1301(b), 142(1),

152(2), (6), (7).   The Fund did not object, however, to dismissal

of the alter ego claim against the Duhamels personally (Count II).6

C. The District Court's Second Ruling

          The   district    court   denied   the   Fund's   post-judgment

motion, finding no basis for setting aside the judgment under Rule

60(b)7 or modifying the decision under Rule 59(e)8.         Langone v. N&D

Transp. Co. ("Langone II"), No. 1:14-cv-11028-RWZ, Mem. Dec. at 7

(D. Mass. Nov. 18, 2015).      With respect to the former, the court

refuted the Fund's assertion that the decision should be vacated

because the court had committed legal error in holding that ERISA



     6 The Fund also reiterated its request to add defendants in a
second amended complaint that it said would include the missing
temporal allegation.

     7Under Rule 60(b), "[t]he court may relieve a party . . . from
a final judgment, order, or proceeding" for various reasons,
including mistake, newly discovered evidence, fraud, or "any other
reason that justifies relief." Fed. R. Civ. P. 60(b), 60(b)(6).
Under the "catchall category," subdivision (b)(6), relief is
available "only in 'extraordinary circumstances.'" Buck v. Davis,
137 S. Ct. 759, 772 (2017) (quoting Gonzalez v. Crosby, 545 U.S.
524, 535 (2005)).     The district court interpreted the Fund's
request as falling within the catchall provision.

     8 Rule 59(e) simply states that "[a] motion to alter or amend
a judgment must be filed no later than 28 days after the entry of
the judgment."
                               - 7 -
alter ego claims require an allegation of fiduciary status.       To

the contrary, the court stated, it had merely identified fiduciary

status as one alternative prerequisite for an ERISA claim, along

with a breach of duty under an ERISA plan or alter ego status at

the time the primary actor violated ERISA.       The court clarified

that it had dismissed the alter ego claims because the Fund had

not adequately alleged any of those grounds for ERISA liability.

Id. at 5.    The court thus found no "extraordinary circumstances"

to justify vacating the prior judgment.    Id.

            The court also refused to alter its judgment so that the

Fund could file an amended complaint.       Id. at 7.    Relying on

Peacock and Futura Development, the court ruled that, even with

the proposed new timing allegation, the ERISA claims "would not

provide a basis for federal jurisdiction."    Id. at 6-7.

            On appeal, the Fund's primary argument is that the

district court erred as a matter of law in finding that its alter

ego claims (Counts I and V) would not fall within the federal

courts' subject-matter jurisdiction even if the complaint were

amended to allege that N&D was the alter ego of D&N at the time

the latter withdrew from the Fund and violated ERISA.9      The Fund

also argues that the district court should have granted its motion



     9 Consistent with the position taken in its post-judgment
filings, the Fund does not challenge on appeal the dismissal of
its alter ego claim against the Duhamels personally (Count II).
                              - 8 -
to   amend   the    complaint   to   cure     the   temporal   deficiency    and

erroneously declined to exercise supplemental jurisdiction over

its state-law claims against the Duhamels and JED Realty (Counts

III and IV).       The Fund thus asks this court to vacate the denial

of its motion for post-judgment relief.

                                      II.

A. Standard of Review

             As both parties observe, a district court's ruling on a

post-judgment      motion   under    either    Rule   59(e)    or   Rule   60(b)

ordinarily is reviewed for abuse of discretion.                See Guadalupe-

Báez v. Pesquera, 819 F.3d 509, 518 & n.4 (1st Cir. 2016) (Rule

59(e)); Giroux v. Fed. Nat'l Mortg. Ass'n, 810 F.3d 103, 106 (1st

Cir. 2016) (Rule 60(b)).        Here, however, the Fund asserts that we

should apply de novo review to the district court's denial of post-

judgment relief because that decision stemmed from the court's

misreading of ERISA law.

             We agree that this appeal turns on a question of law --

whether the Fund's alter ego claims give rise to federal subject-

matter jurisdiction -- and that we do not defer to the district

court if we detect a legal error in its reasoning.             See Guadalupe-

Báez, 819 F.3d at 518 (Rule 59(e)); Ungar v. Palestine Liberation

Org., 599 F.3d 79, 83 (1st Cir. 2010) (Rule 60(b)(6)); see also

Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744,

1748   n.2   (2014)    ("The    abuse-of-discretion      standard     does   not
                                     - 9 -
preclude an appellate court's correction of a district court's

legal or factual error: 'A district court would necessarily abuse

its discretion if it based its ruling on an erroneous view of the

law or on a clearly erroneous assessment of the evidence.'"

(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405

(1990))).10

               Accordingly, we turn to our review of the applicable

law.        We briefly describe our general approach to the alter ego

doctrine in the ERISA context before considering the case law

discussing whether, and when, a federal action may be brought

against an asserted alter ego based on a previously entered

judgment against the signatory ERISA employer.

B. ERISA Alter Ego Status in the First Circuit

               It is well established First Circuit law that the alter

ego doctrine applies to ERISA claims. See Massachusetts Carpenters

Cent. Collection Agency v. Belmont Concrete Corp. ("Belmont"), 139

F.3d 304, 308 (1st Cir. 1998) (noting that alter ego analysis was

"developed in the labor law context" and extended "to claims

involving employee benefit funds"). We have observed that reliance

on the alter ego doctrine in the ERISA context can prevent the


       10
        The Fund alternatively argues that our review is de novo
because the district court's post-judgment ruling was based on a
different rationale (failure to present a federal question) than
its original judgment dismissing the action for failing to state
a claim for relief. Regardless, the question before us is one of
law, which triggers plenary review.
                              - 10 -
evasion        of   pension    obligations,      thereby   protecting   employee

benefits and denying employers "an unearned advantage in [their]

labor activities."            Id. at 308 (quoting Chicago Dist. Council of

Carpenters Pension Fund v. P.M.Q.T., Inc., 169 F.R.D. 336, 342

(N.D.        Ill.   1996));   see   also   id.   ("[U]nderlying   congressional

policy behind ERISA clearly favors the disregard of the corporate

entity in cases where employees are denied their pension benefits."

(quoting P.M.Q.T., Inc., 169 F.R.D. at 342)).                     Although the

doctrine is used primarily in circumstances "involving successor

companies, 'where the successor is merely a disguised continuance

of the old employer,' it also applies to situations where the

companies are parallel companies."                Id. at 307 (quoting C.E.K.

Indus. Mech. Contractors, Inc. v. NLRB, 921 F.2d 350, 354 (1st

Cir. 1990)) (citations omitted); see also Union Builders, Inc. v.

NLRB, 68 F.3d 520, 524 (1st Cir. 1995).11

                Among the relevant factors in determining whether a

second company is an alter ego of a signatory ERISA employer are

"continuity of ownership, similarity of the two companies in

relation to management, business purpose, operation, equipment,


        11
       The defendants do not contest the Fund's assertion that our
ERISA alter ego precedent is applicable to the non-payment of
withdrawal liability as well as to the obligation to contribute to
a pension fund. See 29 U.S.C. § 1451(b) (stating that, "[i]n any
action under this section to compel an employer to pay withdrawal
liability, any failure of the employer to make any withdrawal
liability payment within the time prescribed shall be treated in
the same manner as a delinquent contribution").
                              - 11 -
customers, supervision, and anti-union animus -- i.e., 'whether

the alleged alter ego entity was created and maintained in order

to avoid labor obligations.'"    Belmont, 139 F.3d at 308 (quoting

NLRB v. Hosp. San Rafael, Inc., 42 F.3d 45, 50 (1st Cir. 1994)).

"No single factor is controlling, and all need not be present to

support a finding of alter ego status."    Id.

           It is thus uncontroverted in our circuit that a plaintiff

may seek to impose ERISA liability on an alter ego of the employer

that formally bears the obligations imposed by the statute.     The

dispute here concerns the Fund's attempt to do so in a new action

brought subsequent to a judgment against the signatory employer.

Such secondary litigation -- described by the district court as a

"follow-on suit" -- is the focus of the Supreme Court's decision

in Peacock and our analysis in Futura Development.     We thus next

review that governing precedent.

C. "Follow-on" Jurisdiction: Peacock and Futura Development

           In Peacock v. Thomas, plaintiff Thomas sued an officer

of his former employer in an attempt to collect a monetary judgment

obtained against the employer in an earlier ERISA action.       516

U.S. at 351-52.   The defendant, Peacock, had been found not liable

in the original action, and the second suit was premised on

Peacock's allegedly improper disposal of the company's assets,

after the judgment, to prevent satisfaction of that judgment.   Id.

at 352.   In the original litigation, Thomas had sued for benefits
                                - 12 -
due under the corporation's pension plan.                Id. at 351.       In the

second action, Thomas claimed that Peacock had participated in a

conspiracy to siphon assets from the company and fraudulently

transferred company assets in violation of state laws.                   Id.

            The Supreme Court held that the federal courts lacked

subject matter jurisdiction over the second lawsuit.                     The Court

first rejected Thomas' reliance on ERISA as the source of federal

jurisdiction,     observing    that        "[w]e   are   not    aware     of,   and

[plaintiff] does not point to, any provision of ERISA that provides

for imposing liability for an extant ERISA judgment against a third

party." Id. at 353. Although Thomas suggested that his subsequent

suit arose under the ERISA provision authorizing civil actions for

"appropriate equitable relief," 29 U.S.C. § 1132(a)(3), the Court

pointed out that Thomas had "alleged no violation of ERISA or of

the plan."    Id.     The Court further held that Thomas' claim based

on piercing the corporate veil "does not state a cause of action

under     ERISA      and    cannot     independently           support     federal

jurisdiction."       Id. at 353-54.        Indeed, as the Court noted, the

challenged conduct in Peacock occurred years after the ERISA plan

was     terminated    and   "did     not     occur   with      respect    to    the

administration or operation of the plan."                Id. at 353 (quoting

Respondent's Br. at 11).             Original jurisdiction based on the

federal statute was thus unavailable.


                                     - 13 -
             The   Court,    however,   did   not   entirely    foreclose   the

possibility of federal jurisdiction for a veil-piercing claim

brought in a lawsuit filed subsequent to an earlier ERISA judgment.

In dicta, the Court contemplated such a claim where the complaint

in the second litigation alleges an ERISA violation:

             Even if ERISA permits a plaintiff to pierce
             the corporate veil to reach a defendant not
             otherwise subject to suit under ERISA, Thomas
             could invoke the jurisdiction of the federal
             courts only by independently alleging a
             violation of an ERISA provision or term of the
             plan.   Piercing the corporate veil is not
             itself an independent ERISA cause of action,
             "but rather is a means of imposing liability
             on an underlying cause of action."

516 U.S. at 354 (footnote omitted) (quoting 1 C. Keating & G.

O'Gradney, Fletcher Cyclopedia of Law of Private Corporations § 41,

at 603 (perm. ed. 1990)).

              The Court in Peacock also considered, and rejected,

Thomas' contention that his suit fell within the federal courts'

ancillary jurisdiction.          The Court explained that the federal

courts' power to dispose of supplemental claims that have "a

factual and logical dependence" on the "primary" federal claims

does not provide a basis for subject-matter jurisdiction when non-

federal claims are brought on their own in a separate proceeding.

See id. at 355 ("The court must have jurisdiction over a case or

controversy    before   it    may   assert    jurisdiction     over   ancillary

claims.").     Nor did Thomas' suit fit within the courts' limited

                                    - 14 -
ancillary enforcement jurisdiction, in which "a federal court's

inherent power to enforce its judgments" warrants action against

third parties to protect -- and collect -- a judgment already

imposed."     Id. at 356.         In such cases, the judgment creditor is

"not seek[ing] to impose liability for a money judgment on a person

not   otherwise     liable       for   the    judgment,"    id.      at    351,   but   is

attempting to secure the judgment debtor's funds via mechanisms

designed     for    that   purpose,          "including    attachment,        mandamus,

garnishment,       and     the     prejudgment         avoidance      of     fraudulent

conveyances," id. at 356.

             In Futura Development, 144 F.3d at 8, a panel of this

court relied on Peacock, in a non-ERISA case, to conclude that the

district    court     lacked      jurisdiction      over    a   follow-on         lawsuit

premised on an alter ego theory.                The plaintiff company, Futura,

was seeking payment from the Commonwealth of Puerto Rico on a $12

million judgment previously issued against a public corporation,

the     Cooperative      Development         Company    ("CDC"),      in     an    action

originally brought under federal diversity jurisdiction.                          See id.

at 10.     Acknowledging that neither federal question nor diversity

jurisdiction applied to the claim against the Commonwealth, id.,

Futura argued that its new action was properly in federal court

under    ancillary    enforcement        jurisdiction.          It    asserted      that,

unlike the corporate officer sued in Peacock, the Commonwealth was

"not really a 'new' defendant" because it was the alter ego of the
                                        - 15 -
CDC, and it was thus liable for the primary judgment "from the

moment      that    the   jury     returned      its   verdict   in   the    original

proceeding."          Id.    at    11.     We     rejected   Futura's      reasoning,

concluding that its second action was equivalent to the veil-

piercing claim in Peacock because it involved "an independent

theory of liability under equity, complete with new evidence."

Id. at 12.         Under Peacock, such a new proceeding requires its own

basis for federal jurisdiction.12                Id. at 10-12.

                                           III.

              The question before us is whether the district court

properly concluded that it lacked subject-matter jurisdiction over

this     action      under       the   principles      articulated    in     Peacock.

Initially, the court dismissed the Fund's complaint under Rule

12(b)(6)      because       it    found    the     allegations   insufficient      to

establish the defendants' alter ego status.                  When the Fund sought

in its post-judgment motion to amend the complaint to specify that



       12
        Futura subsequently tried to bring its alter ego claim as
a supplementary proceeding in the original action.     See U.S.I.
Props. Corp. v. M.D. Constr. Co., 230 F.3d 489, 492 (1st Cir.
2000). We again found no federal enforcement jurisdiction over
the claim.     Id. at 492-93 (holding that federal enforcement
jurisdiction does not allow "proceedings to establish direct
liability against the Commonwealth on an alter ego theory
. . . where the limitations on diversity jurisdiction would have
prevented the Commonwealth from being named a defendant in the
action originally"). We declined to address the separate, "complex
question" of whether the case also could be dismissed based on the
Commonwealth's Eleventh Amendment immunity. See id. at 495.

                                          - 16 -
N&D was D&N's alter ego at the times pertinent to the disputed

withdrawal liability,13     the court concluded that the proposed

amendment would be futile.     It reasoned that, even so revised, the

complaint would lack "allegations that the defendants exercised

control over D&N's business and/or played a part in D&N's ERISA

violation."     Langone II, at 7 n.3.     Absent such allegations, the

court stated,

            [t]his matter is . . . not appreciably
            different from a veil piercing situation such
            as that analyzed in Peacock, 516 U.S. 349. It
            is thus functionally an action against a third
            party to collect on an existing judgment,
            which is typically a matter for state courts.
            See id. at 357.

Langone II, at 7 n.3.     The court thus declined to vacate its prior

dismissal of the action because of "the subject matter jurisdiction

problem."     Id. at 7.

            The district court, however, misconstrued the Fund's

allegations concerning N&D's alter ego status with the proposed

new timing averment.      By claiming that N&D was D&N's alter ego

when the withdrawal liability arose, and supporting that claim



     13In referring to the alter ego concept with respect to N&D,
we use the term consistently with our prior usage in labor and
ERISA cases, i.e., to signify two employer entities that are
interchangeable based on the factors identified in Belmont and the
earlier cases on which it relied. See Belmont, 139 F.3d at 308-
09; Hosp. San Rafael, 42 F.3d at 50; C.E.K. Indus. Mech.
Contractors, 921 F.2d at 354.     We address the alter ego claim
against JED Realty separately below.

                                 - 17 -
with factual allegations of substantial overlap in the companies'

operations, the Fund would be asserting that D&N and N&D were

interchangeable and that, accordingly, N&D necessarily "played a

part in D&N's ERISA violation."            See supra note 13.            The court's

fundamental     error    in    evaluating        the    alter     ego    allegations

concerning N&D thus led it astray in assessing whether the Fund

had established federal subject-matter jurisdiction.

            Properly viewed, this case is readily distinguishable

from Peacock and Futura Development.                   Under Peacock, a second

litigation seeking to collect on an earlier judgment must have its

own basis for federal subject-matter jurisdiction.                   Here, the Fund

maintains that N&D was -- at the pertinent times -- the same

company as D&N and, as such, bore the same obligation under ERISA

for   the   payment     of   that   liability.         As   the    district     court

acknowledged, see Langone II, at 7 n.4, the Fund alleged that "N&D

Transportation is an 'employer' within the meaning of ERISA,"

Compl.,     Docket    #31-1,    ¶   6     (citing      29   U.S.C.      §§   1002(5),

1301(b)(1)), and "an employer in an industry affecting commerce

within the meaning of ERISA," id. (citing 29 U.S.C. §§ 142(1),

152(2), (6)).    In addition, as noted above, the complaint alleged

facts addressing the Belmont factors before asserting that N&D was

the alter ego of D&N and that, as D&N's alter ego, N&D was "liable

for the judgment issued against D&N" in the prior action.                         Id.

¶¶ 24-25.
                                        - 18 -
          The Fund's claim against N&D was thus anchored in ERISA

and premised on N&D's de facto status as an ERISA employer, and

not -- as was the situation in Peacock -- on alleged wrongful

conduct outside the scope of the federal statute.     Indeed, this

case presents the scenario the Supreme Court itself distinguished

from the circumstances presented in Peacock, i.e., one in which a

plaintiff "could invoke the jurisdiction of the federal courts

. . . by independently alleging a violation of an ERISA provision

or term of the plan."   516 U.S. at 354. Likewise, because ERISA

provides the jurisdictional hook, allowing the claim against N&D

to proceed is also consistent with Futura Development.14

          The same cannot be said, however, for the alter ego claim

against JED Realty (Count V), which alleges that JED Realty is

responsible for the prior judgment as an alter ego of N&D -- but


     14We further note that our conclusion on the alter ego claim
against N&D accords with both Court of Appeals decisions
highlighted by the district court.       In Ellis v. All Steel
Construction, Inc., 389 F.3d 1031 (10th Cir. 2004), the Tenth
Circuit held that subject-matter jurisdiction under ERISA exists
for a follow-on suit only if the plaintiff asserts a direct ERISA
violation by the alter-ego defendant. Id. at 1035; see also id.
at 1034 (stating that "claims that posit an alter ego's direct
concurrent liability for an ERISA violation" "do[] not implicate
Peacock concerns").      The Seventh Circuit, meanwhile, has
distinguished between alter ego claims and the piercing-the-
corporate-veil theory at issue in Peacock, concluding that a
pension fund's cause of action against asserted alter egos
necessarily arises under federal law because "the same entity" is
being sued: "[W]hen the parent and subsidiary are just alter egos,
then everything depends on, and the claim arises under, federal
law." Board of Trs., Sheet Metal Workers' Nat'l Pension Fund v.
Elite Erectors, Inc., 212 F.3d 1031, 1038 (7th Cir. 2000).
                              - 19 -
does not assert that JED Realty is directly liable as an ERISA

employer.    See Compl., Docket #31-1, ¶¶ 72-73 (alleging that JED

Realty is an alter ego of N&D and, "[a]s an alter ego of N&D

Transportation, Defendant JED Realty is liable for any judgment

issued    against   N&D    Transportation   as    the   alter   ego   of   D&N

Transportation").         Because this claim is based solely on the

relationship between N&D and JED Realty, it is akin to the veil-

piercing claim asserted in Peacock and the alter ego claim alleged

in Futura Development -- i.e., it involves a theory of liability

that does not present a federal question, involve diverse parties,

or   fall   within    the     federal   courts'     recognized    ancillary

enforcement jurisdiction.       Hence, considered on its own, there is

"no independent basis for [federal] jurisdiction" for the alter

ego claim against JED Realty.       Peacock, 516 U.S. at 355.

            Of course, if federal subject-matter jurisdiction exists

for the alter ego claim against N&D (Count I), the JED Realty alter

ego claim (Count V) -- as well as the state law fraudulent-transfer

and reach-and-apply claims (Counts III and IV) -- theoretically

could proceed pursuant to the court's supplemental jurisdiction.15

We offer no view on that path for the Fund's claims, as it is not

our role to consider in the first instance the factors informing


     15 For the first time on appeal, the Fund asserts that the
district court had ancillary enforcement jurisdiction over the
fraudulent transfer claim.   We decline to address that belated
contention here.
                             - 20 -
the     district    court's    discretionary         judgment    on    whether   to

entertain supplemental claims.              See Ramos-Echevarría v. Pichis,

Inc.,     659    F.3d   182,   191   (1st       Cir.   2011)    (noting     court's

"considerable       authority"       to     decide     whether        to   exercise

supplemental jurisdiction based on factors that include "judicial

economy, convenience, fairness to litigants, and comity").

            We therefore conclude that the district court erred in

refusing to vacate its dismissal of the Fund's alter ego claim

against    N&D     (Count   I),   and     rejecting     the     proposed   amended

complaint, on the ground that federal jurisdiction would be lacking

even if the complaint contained the temporal allegation concerning

N&D's alter ego status.        Because the court's post-judgment rulings

on the other counts rest on this legal error, the court on remand

will need to reconsider its dismissal of those counts as well.

                                          IV.

            For the reasons detailed above, we vacate the district

court's denial of the Fund's Motion for Relief from Judgment and/or

Motion to Amend the Judgment and remand for further proceedings

consistent with this opinion.

      So ordered.       Costs to appellant.




                                     - 21 -
