Complaint – Charlie Orlando Ezuma v Jason Berenson

EIGHTH JUDICIAL DISTRICT COURT

IN AND FOR XXX COUNTY, STATE OF XXX

 

XXXX     §

Plaintiff,     §

  1.     § Case No.

XXXX    §

Defendant.     §

 

PLAINTIFF’S ORIGINAL COMPLAINT

NOW COMES PERSON 1, Plaintiff, complaining of Defendant, PERSON 2, and for cause would show this Honorable Court as follows:

  • PARTIES
  1. Plaintiff is a male adult of sound mind and a resident of PERSON 2.
  2. Defendant is a male adult of sound mind and a resident of XXX.
  • FACTS
  1. Plaintiff and Defendant formed XTS Cloud, LLC and registered it in XXXX. They are equal shareholders in the company. 
  2. The company makes approximately $7,000 per month in revenue and incurs approximately $6,500 per month in expenses, leaving about $500 profit every month.
  3. On XXX, Defendant informed Plaintiff that he would be taking a client of the company, XXX Solutions from XTS Cloud, LLC and start working for XXXX Solutions by himself while pocketing the revenue alone.
  4. Techcomm Solutions brought XTS Cloud, LLC revenue in the sum of $2,000 per month.
  5. Defendant went ahead and poached XTS Cloud, LLC’s client and began working for Techcomm Solutions on his own and pocketed all the revenue.
  • BREACH OF FIDUCIARY DUTY
  1. The burden of proof lies on Plaintiff to prove breach of fiduciary duty by Defendant.
  2. The elements of breach of fiduciary duty were outlined in Klein v. Freedom Strategic Partners, LLC, 595 F. Supp. 2d 1152, 1162 (D. Nev. XXX) as being existence of a fiduciary duty, breach of the duty, and consequential damage as a result of the breach.
  3. By being a member of XTS Cloud, LLC, Defendant owed fiduciary duty to the Company.
  4. A fiduciary relationship is deemed to exist when one party is bound to act for the benefit of the other party. Such a relationship imposes a duty of utmost good faith. Hoopes v. Hammargen, 725 P. 2d 238 (Nev. 1986).
  5. As a member of XTS Cloud, LLC, Defendant was bound to act for the benefit of XTS Cloud, LLC and act in good faith in the course of business.
  6. Defendant breached fiduciary duty by poaching Techcomm Solutions from XTS Cloud, LLC and working for Techcomm while pocketing all the revenue. 
  7. Defendant’s acts were not for the benefit of XTS Cloud, LLC and in total breach of Defendant’s duty of utmost good faith.
  8. As a result of Defendant’s breach of fiduciary duty, XTS Cloud, LLC makes a loss of $1,500 per month, and will continue to do so until the company’s lease expires in December. 
  9. Plaintiff has been forced to pay the lease for XTS Cloud, LLC using his own money until December.

  • SELF-DEALING
  1. Self-dealing is engagement in a transaction that is intended to primarily benefit one’s self or the narrow interests of a few rather than those to whom one owes a duty by virtue of one’s position.
  2. 26 CFR § 53.4941(d)-2(e) provides that the payment of compensation (or payment or reimbursement of expenses) by a private foundation to a disqualified person shall constitute an act of self-dealing.
  3. Defendant was a disqualified person because he was a member of XTS Cloud, LLC. He should have conducted business in a manner that would benefit the interests of XTS Cloud, LLC, not his own.
  4. By poaching Techcomm Solutions from XTS Cloud and working for Techcomm on his own, LLC, Defendant engaged in a transaction that was intended to primarily benefit him instead of XTS Cloud, LLC to which he is a member and owes fiduciary duty.
  5. As a result of Defendant’s acts of self-dealing, XTS Cloud, LLC makes a loss of $1,500 per month, and will continue to do so until the company’s lease expires in XXX. 
  6. Plaintiff has been forced to pay the lease for XTS Cloud, LLC using his own money until December.
  • PRAYER FOR RELIEF

REASONS WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant him the following reliefs:

  1. Award Plaintiff $36,000 in damages for revenue lost by XTS Cloud, LLC;
  2. Award Plaintiff damages for breach of fiduciary duty and self-dealing;
  3. Award Plaintiff punitive damages;
  4. Award Plaintiff pre and post judgment interests, costs of this suit and attorney fees as allowed by law;
  5. Award Plaintiff such equitable relief as may be appropriate under the circumstances; and
  6. Award Plaintiff such further relief as this Honorable Court deems necessary and proper.

 

Respectfully Submitted,

______________________________

PERSON 1

XXX

XXX

Insert Phone Number

Insert Email

VERIFICATION

I, PERSON 1, being duly sworn depose and say that I am the Plaintiff in the above entitled action, that I have read the foregoing Complaint and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this the _____ day of ____________________, XXX.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:

(Name of Attorney), Attorney at Law

 

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