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 ...