Notice of Removal, Ex. A (state-court complaint), Lewiston-Auburn Motorcycles, Inc. v. Vensure Employer Services, Inc., No. 2:24-cv-00240 (D. Me.), Doc. 1-2 (July 3, 2024)

Summary

Exhibit A to a Notice of Removal, Document 1-2 filed July 3, 2024 in Case 2:24-cv-00240-LEW in the District of Maine: the state-court complaint of Lewiston-Auburn Motorcycles, Inc. against Vensure Employer Services, Inc. and Cunningham & Associates Consulting, LLC, filed in the State of Maine Superior Court for Androscoggin County and dated April 8, 2024. The plaintiff says Vensure, its professional employer organization (PEO) since 2019, was the only party that could claim the Employee Retention Tax Credit (ERTC) for it on Form 941-X, and that it engaged the consultant to prepare the calculations. It pleads counts for breach of contract, fraud and misrepresentation, unjust enrichment, quasi-contract and breach of fiduciary duty, and seeks damages equal to the lost credit, plus interest and fees.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Notice of Removal, Ex. A (state-court complaint), Lewiston-Auburn Motorcycles, Inc. v. Vensure Employer Services, Inc., No. 2:24-cv-00240 (D. Me.), Doc. 1-2 (July 3, 2024).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/notice-of-removal-ex-a-state-court-complaint-lewiston-auburn-motorcycl-3376247d84/, SHA-256 6544480d4e8f1fc29f548eadb6a6000029d461e22dcd89f822adcde992b4d30f.

Full text

Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 1 of 13 PageID #:
13

Exhibit A
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 2 of 13 PageID #:
14

State of Maine Superior Court
Androscoggin, ss. Location: Auburn
Docket No.

Lewiston-Auburn Motorcycles, Inc. ]
Oba L-A Harley Davidson ]
C/o Brian D. Condon, Jr., Esq. ]
126 Main St. ]
PO Box 169 ]
Winthrop, ME 04364 ]
]
v. ] COMPLAINT
Defendant ]
]
Vensure Employer Services, Inc. ]
14497 N. Dale Mabry Hwy. ]
Suite 215 ]
Tampa, FL 33618 ]
]
And ]
CUNNINGHAM & ASSOCIATES ]
218 Shrewsbury St. ]
Suite 201-202 ]
Worcester, MA 01604 ]

NOW COMES THE PLAINTIFF, Lewiston-Auburn Motorcycles, Inc., and
complains as follows against the Defendant.

Factual Averments in Regards to the Parties:

1. The Plaintiff ~wiston-Aubum Motorcycles, Inc. (L/ A) is a Maine

Corporation WI\"th its principal place of business in Lewiston,

Androsco~ County, Maine.

2. The Defendant, Vensure Employer Services, Inc. (VES) is an Arizona
I

Corporation with a principal place of business in Chandler, Maricopa

County, Arizola, and a Registered Agent in Tampa, Florida.
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 3 of 13 PageID #:
15

3. Vensure Employer Services, Inc. is a "Professional Employer

Organization" or "PEO" who's business is to perform human resources,

tax filing, payroll, and other services on behalf of businesses.

4. Cunninghl & Associates Consulting, LLC ("CAC") is a Massachusetts

Limited Liability Company of Worchester, Massachusetts.
I

5. As a PEO, VES is responsible for filing many of their clients payroll
'

forms, which includes the IRS form 941 and any amendments thereto.

6. The Plaintiff engaged the Defendant VES to act as its PEO, and the

Defendant has been the Plaintifrs PEO since 2019.

7. The Defendant charged the Plaintiff for its services.

8. The Plaintiff engaged CAC to complete certain calculations and tax forms

for collection and application of the Employee Retention Tax Credit

(ERTC).

9. At all times mentioned under this complaint, the Plaintiff was up to date

on its payments and amounts due to both Defendants.

Facts in Regards to the Employee Retention Tax Credit

10. The Erployee Retention Tax Credit {ERTC) is a tax credit enacted

under the Mrrch, 2020 Coronavirus Aid, Relief, and Economic Security
I

Act, and wa~ amended by the 2021 Consolidated Appropriations Act, the

American Rescue Plan Act, and the Infrastructure Investment and Jobs

Act.
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 4 of 13 PageID #:
16

11. L/ A suffered a loss of business during the pandemic and

maintained its employees during that time period, thus qualifying them

for the Employee Retention Tax Credit Act.

12. One rethod of claiming the ERTC is to file an "amended" for 941

with the IR~ for each quarter the credit would be claimed. This form is

called a, "941-X".

13. The ability to claim the ERTC began for wages paid from March,
I
2020 through December, 2021, with certain exceptions.
!

14. L/A would qualify for the ERTC for the following quarters: p/o Ql,

2020;Q2,2020;Q3,2020;Q4,2020;Ql,2021;Q2,2021;Q3,2021.

15. On March 1, 2021, the IRS issued Notice 2021-20 that outlined
I •

how the ERTC was to be claimed and that PEO's like the Defendant were
I

the only p~ties who could claim the credit on behalf of their customers
I

using a Fodn R.
I

16. Because PEO's like the Defendant utilize their own Employee

Identification Number (EIN) to file the original 941 forms, and are

actually lis4d on employee W2's and pay stubs as the "employer", then

L/A could not file its own 941-X form to claim the ERTC.

17. At no time during any of the amendments to the ERTC did L/ A lose

its eligibiliJ.for the tax credit.

18. CAC Jas engaged to complete the ERTC process and paid an up

front "percentage" of the prospective recovery of the ERTC, which was

based upon rompletion of a 941-X form.
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 5 of 13 PageID #:
17

I
19. CAC completed the calculations, but did not draft the 941-X as

contracted to do so, and did not follow up with the PEO, VES, to assure

that the forms were in fact completed and filed.

Factual Averm.efts in Regards to Defendants' Actions

20. The Defendant VES was responsible for filing the 941-x on behalf

of itself and for the benefit of the Plaintiff.

21. As early as June, 2022, the Plaintiff contacted the Defendant VES

inquiring as to when the 941-x would be filed for the ERTC.

22. The Defendant VES answered the Plaintiff and eventually said they

were not responsible for calculating the numbers, but would certainly file

the 941-x if the numbers were calculated for them.

23. In September of 2022, the Plaintiff hired CAC, an accounting firm,

to calculate lthe numbers for the 941-x, and draft the 941-x, at great

expense to the Plaintiff. These numbers were presented to the Defendant

VES and it is not known who drafted, if either Defendant, the 941-x.

24. On October 7, 2022, the Defendant VES was presented with the

numbers forithe 941-x to claim the ERTC.

25. On No~ember 1, 2022, the Plaintiff received an email assuring the

Plaintiff that\the numbers were received by the Defendant VES and that

the 941-x w~uld be filed, "Next Quarter'', or January-March, 2023.
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 6 of 13 PageID #:
18

26. On Jebruary 23, 2023, the Plaintiff, via email, inquired from the

Defendant VES as to whether or not the ERTC claim had been filed on

the 941-x.

27. On lebruary 23, 2023, the Defendant VES, via email, assured the

Plaintiff that
I
its 941-x was filed claiming the ERTC on 12/15/2022. In

said email they admitted it was a "late filing'' and they "made an

exception".

28. In the February 23, 2023 email from the Defendant VES, the
I
Defendant admitted to having started receiving ERTC refunds for other
I
clients.

29. On Jµne 7, 2023 the Plaintiff inquired again about the ERTC as

they had n9t heard anything at all, and had not received a copy of the
!

941-x formlthat was allegedly filed with the IRS on 12/15/2022.

30. On June 12, 2023, the Defendant VES contacted the Plaintiff via
I

email to indicate that "unfortunately, your ERTC claim has not been

filed." In that email, the Defendant VES asked for the calculations of the

accounting firm a second time, to submit to the IRS on the form.
I
31. Thro~gh counsel, the Defendant VES admitted that they had still

not filed th, 941-x form for the Plaintiff, on or about August 23, 2023.

32. To dar, neither Defendant has not produced the 941-x forms that

should have been filed to collect the ERTC on behalf of the Plaintiff.

33. On September 14, 2023, the IRS placed a moratorium on the

processing if ERTC claims.
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 7 of 13 PageID #:
19

34. On January 18, 2024, the Defendant VES sent the Plaintiff an

email that stated, in part, that the ERTC credit was being terminated as

of January 31, 2024, and that they (the Defendant) were no longer filing

anymore E~C claims for its clients.

35. Counsel for Plaintiff sent numerous emails inquiring as to whether

or not the 941-x form had been filed, emails that went ignored.

COUNT 1: BREACH OF CONTRACT- Both Defendants

36. The Plaintiff repeats and restates all previous paragraphs of this

complaint.

37. The Plaintiff and Defendants entered into a binding agreement for

payroll servi~es, and accounting services, including but not limited to the
I

drafting and filing of federal 941 payroll forms with the Internal Revenue

Service, and any amendments thereto.

38. The Defendants agreed to file the necessary forms to collect a

substantial government credit on behalf of its client, the Plaintiff.

39. The Defendants failed to file the necessary forms with the Internal

Revenue Service.

40. Due to the Defendants' failure to file the necessary forms with the

Internal Reve ue Service, the Plaintiff has lost the ability to collect the

credit from the US Federal Government.
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 8 of 13 PageID #:
20

41. The Defendants breached their contracted obligations to the

Plaintiff by failing to file the necessary forms.

42. The Plaintiff paid the Defendants, thus completing its end of the

contracts.

43. The Plaintiff provided all requested documents to the Defendants,

thus completing its end of the contract.

44. The Plaintiff suffered damages as a result of the Defendants

breach.

45. The Plaintiffs financial damages were a proximate and foreseeable

result of the Defendants breaches of the contracts.

WHEREFORE, the Plaintiff hereby requests this Honorable Court for a

judgment against ~he Defendants, including joint and several liability, for
i
breach of contract and an order of damages to equal the loss of the credit, plus

interest, consequential damages, costs and any other damage the Court deems

proper and just.

COUNT 2: FRAtfD- MISREPRESENTATION- As to Vensure Employment

Services Only.
I
I •

46. The Pla\mtiff repeats and restates all previous paragraphs of this

complaint. \

47. The Defendant VES , in telling the Plaintiff that the documents had

been filed, mlde a false representation.
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 9 of 13 PageID #:
21

48. The Defendant VES knew, or should have known, that the

representation was in fact false.

49. The representation was made to the Plaintiff in order for the

Plaintiff to rely on said representation.
I
50. The Plaintiff continued to pay the Defendant for its services,

presumably the services that the Defendant VES claimed it had

completed, knowing full well they had not.

51. The Plaintiff relied on said representations made by the Defendant

VES, in not replacing the VES as their PEO, and in continuing to pay

VES its requested fees.

52. The Plaintiff has been harmed financially by the Defendant VES's

fraudulent misrepresentation.
i
WHEREFORE, the Plaintiff hereby requests this Honorable Court for a
1

judgment against the Defendant VES for fraudulent misrepresentation and an

order of damages to equal the loss of the credit, plus interest, consequential

damages, reasonaqle attorney's fees, costs and any other damage the Court
I

deems proper and just, including punitive damages.

C~UNT 3: NEGLIGENCE- Both Defendants

53. I The Plaintiff repeats and restates all previous paragraphs
of this complaint.
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 10 of 13 PageID #:
22

54. The Defendants both owed a duty of care to the Plaintiff to

file all appropriate documentation with the Internal Revenue Service in

regards to payroll, 941 forms and any amendments thereto.

55. The Defendants both failed to properly file the documents
I

for the ERTC on behalf of the Plaintiff.
\
56. The Plaintiff suffered damages as a result of the

Defendants failures to file said documents.

57. The damages were a proximate and foreseeable

consequence of their failure to file said documents.

58. The Defendants breached its duty of care to the Plaintiff

causing financial damage.

WHEREFORE, thi Plaintiff hereby requests this Honorable Court for a

judgment against the Defendants, jointly and severally, for negligence and an
I

order of damages to equal the loss of the credit, plus interest, consequential

damages, costs and any other damage the Court deems proper and just.

COUNT 4: UNJUST ENRICHMENT- Both Defendants

59. The Plaintiff repeats and restates all previous paragraphs

of this compltnt.

60. The Pl~ntiff paid the Defendants for services rendered, specifically
I

for the draftinf and filing of federal 941 tax forms and any amendments

thereto. \
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 11 of 13 PageID #:
23

I
61. The Defendants failed to draft and file said forms properly, even

after being paid a substantial sum by the Plaintiff.

62. The Defendants have not returned the Plaintiffs payments, and

therefore was unjustly enriched to the Plaintifrs financial detriment.

WHEREFORE, the Plaintiff hereby requests this Honorable Court for a

judgment against the Defendants for unjust enrichment and an order of

damages to equal the loss of the credit, plus interest, consequential damages,

costs and any other damage the Court deems proper and just.

COUNT 5: QUASI-CONTRACT (QUANTUM MERUIT)- Both Defendants

63. The Plaintiff repeats and restates all previous paragraphs

of this comp~aint.

64. The Plaintiff paid the Defendants for the purpose of drafting and

filing all documents necessary in regards to payroll taxes and any credits

thereto.

65. The Defendants received and appreciated that payment and

knowingly accepted it in exchange for those services.

66. The Defendants did not provide those services, to the financial

detriment of ie Plaintiff.

67. The Defendants retention of that benefit would be inequitable
i

under the cir,umstances.

!
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 12 of 13 PageID #:
24

WHEREFORE, the Plaintiff hereby requests this Honorable Court for a

judgment against the Defendants for quasi-contract and an order of damages

to equal the loss of the credit, plus interest, consequential damages, costs and

any other damage the Court deems proper and just.

COUNT 6: BREACH OF FIDUCIARY DUTY- Defendant Vensure Employment

Services

68. The Plaintiff repeats and restates all previous paragraphs

of this complaint.

69. The Plaintiff entrusted the Defendant VES to complete, file, and

potentially amend tax returns.
i
70. There is a significant amount of confidence and a disparity of

knowledge between the Plaintiff and Defendant VES.

71. The Defendant was responsible for paying the federal government

payroll taxes and was entrusted with payroll funds, and entrusted with

the filing of amended payroll tax forms.

72. The Defendant VES failed at filing said amendments to garner a

significant tax credit.

73. The De~endant VES handles the Plaintiff's payment of payroll taxes

to the federal \and state governments.
Case 2:24-cv-00240-LEW Document 1-2 Filed 07/03/24 Page 13 of 13 PageID #:
25

74. The Plaintiff relies upon the Defendant to collect payroll taxes due,

draft the necessary documents for filing, and submit the forms to the

appropriate governments.

75. The Defendant VES failed to complete these tasks, after collecting

and retaining funds on behalf of the Plaintiff.

WHEREFORE, the Plaintiff hereby requests this Honorable Court for a

judgment against the Defendant VES for breach of fiduciary duty, and an order

of damages to eqfal the loss of the credit, plus interest, consequential

damages, reasonable legal fees, costs and any other damage the Court deems

proper and just.

Dated: April 8, 2024
Brian D. Condon, Jr. Bar No. 8588
Attorney for Plaintiff

Law Office of Brian D. Condon, Jr.
126 Main Street - PO Box 169
Winthrop, ME 04364
(207) 377-3005

File and source

File: gov.uscourts.med.66158.1.2_2.pdf
Size: 591,024 bytes
SHA-256: 6544480d4e8f1fc29f548eadb6a6000029d461e22dcd89f822adcde992b4d30f
Our copy: gov.uscourts.med.66158.1.2_2.pdf
Original: storage.courtlistener.com