of time covered in Plymouth I, the two claims differ in that each asserts different rights, alleges different injuries and arises from different facts. In Plymouth I, Central States sought to collect delinquent contributions based exclusively on the work history as provided by Plymouth. The instant suit, on the other hand, was brought after an audit revealed that Plymouth had failed to accurately report employee work history.
To date, two courts of appeals have addressed the issue of res judicata in virtually identical factual contexts, each utilizing the transactional approach yet rendering polar opinions. Compare May v. Parker-Abbott Transfer and Storage, Inc., 899 F.2d 1007 (10th Cir. 1990) (res judicata applies to bar second action to collect proceeds pursuant to audit) with I.A.M. Nat'l Pension Fund v. Industrial Gear Mfg. Co., 232 U.S. App. D.C. 418, 723 F.2d 944 (D.C. Cir. 1983) (res judicata does not bar subsequent action to collect contributions identified by audit). We believe the conclusion of the D.C. Circuit in I.A.M. Nat'l Pension Fund best comports with prevailing business practices and the underlying purposes of the doctrine of res judicata.
In holding that res judicata operates to bar a pension fund from maintaining a second action to collect contributions identified after an audit, the Tenth Circuit analogized the present circumstance to that of an ordinary, discrete contractual dispute:
A sues B for breach of contract calling for delivery of certain appliances, alleging as the breach that the appliances did not meet the agreed specifications. After judgment for B, A commences a second action, this time alleging late delivery of the appliances as the breach. The second action is precluded.
May, 899 F.2d at 1010 (quoting Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329, 1336 (10th Cir. 1988) (quoting Restatement (Second) of Judgments § 25 comment b, illustration 2, at 210-11)). In this vein, the court declared:
We cannot distinguish between the two lawsuits in this case and those presented in the Restatement illustration above. Only the order of the suits is reversed. Here appellant has brought one suit to force the payment of delinquent monthly contributions (late delivery), and now brings another seeking an audit to ensure the accurate calculation of those contributions (or to ensure that the payments meet the agreed specifications). To allow the second suit to proceed as framed would allow precisely the sort of piecemeal litigation, unnecessary expense, and waste of judicial resources that the doctrine of res judicata is designed to prevent.
Id. This analogy, however, overlooks the realities dictating the operations of modern day pension funds. Significantly, Central States is a separate and distinct entity from both Plymouth and the union representing its employees. As such, it has no independent knowledge with which to verify the accuracy of the information supplied by the employer. Accordingly, as recognized in I.A.M. Nat'l Pension Fund, 723 F.2d at 948, "before the Fund can maintain a cause of action alleging inaccurate contributions, it must conduct an audit from which it determines that the monthly reports are inaccurate." As stated by Judge Logan in dissent to the decision in May:
To hold that whenever the Fund believes it must sue to prod a lax or recalcitrant employer into submitting required reports or making payments shown as due on reports it has filed, it must conduct an audit of the employer's wage records or forever lose the right to complain of possible omissions or inaccuracies in the contributions owed by that employer, imposes an unfair burden on pension funds while furthering none of the policies behind the doctrine of res judicata.
May, 899 F.2d at 1011 (Logan, J., dissenting).
In sum, the Fund's previous action to recover delinquent contributions based on reports submitted by Plymouth arises out of different facts than the current suit to collect contributions stemming from Plymouth's inaccurate reporting of employee work history. Consequently, the doctrine of res judicata does not bar Central States' present claim for contributions for monies owed prior to April 5, 1991, and Plymouth's motion for summary judgment is denied.
For the reasons set forth below, Plymouth's motion for summary judgment is denied. It is so ordered.
MARVIN E. ASPEN
United States District Judge