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Aes-Apex Employer Services, Inc. v. Rotondo

United States Court of Appeals, Sixth Circuit

May 17, 2019

AES-Apex Employer Services, Inc.; AES-Apex Employer Solutions, Inc., Plaintiffs-Appellees, Plaintiffs-Appellants,
v.
Dino Rotondo; Richard Mark; United States Department of the Treasury, Internal Revenue Service, Defendants-Appellees, Akouri Investments, LLC, Intervenor-Appellant, Intervenor-Appellee.

          Argued: May 8, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:13-cv-14519-Robert H. Cleland, District Judge.

         ARGUED:

          H. Nathan Resnick, RESNICK LAW, P.C., Bloomfield Hills, Michigan, for Akouri Investments.

          Geoffrey J. Klimas, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for United States Department of the Treasury and Internal Revenue Service.

          Scott D. MacDonald, DIXON & MACDONALD, Southfield, Michigan, for AES-Apex.

         ON BRIEF:

          H. Nathan Resnick, RESNICK LAW, P.C., Bloomfield Hills, Michigan, for Akouri Investments.

          Geoffrey J. Klimas, Teresa E. McLaughlin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for United States Department of the Treasury and Internal Revenue Service.

          Scott D. MacDonald, DIXON & MACDONALD, Southfield, Michigan, for AES-Apex.

          Before: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.

          OPINION

          THAPAR, CIRCUIT JUDGE.

         Dino Rotondo serves as a consultant for AES-Apex. This case is a dispute about who gets the money that he makes consulting. The IRS says that it should get the money because Rotondo is behind on his taxes. Akouri Investments says it should get the money instead because Akouri loaned Rotondo money that he has not paid back yet. And finally, AES-Apex says that it should get to keep some of the money pursuant to its contract with Rotondo. The district court granted summary judgment in favor of the IRS, and we affirm.

         I.

         As relevant here, Dino Rotondo was the sole owner of Apex Administrative Services ("Apex"). Apex, in turn, wholly owned four limited liability companies: Apex HR Services, LLC, Pinnacle HR Services, LLC, AS Holdings Group, LLC, and AS South, LLC (collectively, the "Directional Entities"). Together with these Directional Entities, Apex provided a variety of services, such as human resources, to different clients.

         Eventually Rotondo opted to sell the Directional Entities' key asset-their customer lists, essentially lists of who their clients were. He sold the customer lists in a deal with two firms, AES-Apex Solutions, Inc. and AES-Apex Employer Services, Inc. (collectively, "AES"). As part of that deal, AES agreed to pay Rotondo a share of its gross profits in the form of "Consulting Fees."

         Yet the bad news for Rotondo is that he will not keep the Consulting Fees because he owes a lot of money and is behind on his payments. Two entities have claims to collect Rotondo's Consulting Fees. First, a firm named Akouri Investments, LLC ("Akouri") loaned money to one of Rotondo's other companies.[1] In return for that loan, Akouri gained a security interest in Apex's assets. When Rotondo failed to pay back his loan, Akouri obtained a judgment against Rotondo and Apex for $1.4 million.

         Second, Rotondo owes the IRS. Over the years, Rotondo failed to pay his taxes, so the IRS has assessed various tax penalties against him. As of 2015, Rotondo owed the IRS $3.4 million. To try and get that money, the IRS filed several notices of tax liens against Rotondo, Apex, and the Directional Entities.

         Once Rotondo started earning his Consulting Fees, both the IRS and Akouri saw an opportunity to get what they were owed. The IRS contacted AES directly, claiming it was entitled to the Consulting Fees because of its tax liens. Then, several months later, Akouri claimed that it was entitled to the Consulting Fees. Facing conflicting claims to the Consulting Fees-and the possibility of having to pay twice-AES filed this interpleader action in state court. Interpleader permits a party facing claims "that may expose [it] to double or multiple liability" to join all claimants as defendants in a single action. Fed.R.Civ.P. 22(a)(1). The IRS removed the case to federal ...


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