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Cash Depot, Ltd. v. Commercial Atm Services, LLC

United States District Court, D. Alaska

October 19, 2015

CASH DEPOT, LTD., Plaintiff,
v.
COMMERCIAL ATM SERVICES, LLC d/b/a ALASKA ATM SERVICE, et al., Defendants.

ORDER

H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE

Motions to Dismiss

Defendants move to dismiss plaintiff’s claims.[1] These motions are opposed.[2] Oral argument was not requested and is not deemed necessary.

Background

Plaintiff is Cash Depot, Inc. Defendants are Commercial ATM Services, LLC, d/b/a as Alaska ATM Service; Societe Financial, LLC d/b/a Alaska ATM Service; Societe Financial Group, LLC d/b/a/ Alaska ATM Service; James Dainis; and Dominic and Reynold Krueger.

Societe Financial Group is alleged to be the sole member of Commercial ATM; and Dainis is alleged to the sole member of both Societe Financial and Societe Financial Group.[3]Commercial ATM is alleged to “hold[] a business name registration for Alaska ATM Service.”[4] Societe Financial is alleged to “own[] a business license in the name of Alaska ATM Service.”[5] All three corporate entities are alleged to have “a principal place of business at 510 West Tudor Road #8, Anchorage, Alaska 99503.”[6]

Dainis is alleged to be the registered agent for Commercial ATM and Societe Financial and “Alaska ATM’s principal.”[7] The Kruegers are alleged to be employees or former employees of Alaska ATM.[8]

On June 9, 2014, plaintiff “entered into an Automated Teller Machine (ATM) Service Agreement ... with Alaska ATM.”[9] Pursuant to the ATM Agreement, plaintiff “agreed to pay Alaska ATM to fill [plaintiff’s] ATM at the Walmart store located at 2911 Mill Bay Road in Kodiak, Alaska, with vault cash.”[10]

To fill [plaintiff’s] ATM, a courier for Alaska ATM would pick up cash from the Wells Fargo bank in Anchorage, load the cash into a cassette, travel to Kodiak, remove the old cassette (which would typically contain residual vault cash) from [plaintiff’s] ATM, install the new cassette into [plaintiff’s] ATM, and return the residual cash from the old [cassette] to the bank in Anchor-age.[11]

Paragraph 2 of the ATM Agreement provides that

Cash Depot agrees that until dispensed from the ATMs to customers of the ATMS, ATM Vault Cash shall be the sole exclusive property of Cash Depot and that neither Alaska ATM Service nor any third party shall have any interest (including any legal, equitable or security interest) in such ATM Vault Cash. Legal title to ATM Vault Cash shall never pass to Alaska ATM Service.[12]

Paragraph 3 of the ATM Agreement provides:

From and after delivery of ATM Vault Cash to ATMs owned by Cash Depot, until Vault Cash is dispensed from the ATMs to customers of the ATMs, Alaska ATM Service hereby accepts all responsibility and bears all risks of loss for the transfer and handling of Vault Cash, including without limitation, any loss suffered or created by theft, damage, destruction, fraud, or mysterious loss of cash.[13]

Plaintiff alleges that Dainis and the Kruegers “were the individual couriers who had responsibility for filling [plaintiff’s] ATM on behalf of Alaska ATM.”[14] Plaintiff alleges that these three individuals “transmitt[ed] their personal information and signatures on bank paperwork to Cash Depot so that Cash Depot would authorize them to access Cash Depot’s Wells Fargo account and withdraw vault cash.”[15]

Plaintiff alleges that between June 25, 2014 and December 4, 2014, “$138, 940.00 in vault cash disappeared from [plaintiff’s] ATM.”[16] Plaintiff alleges that “[t]he disappearance occurred because one or more of Alaska ATM’s couriers failed to return [plaintiff’s] residual vault cash to the bank.”[17]

On April 27, 2015, plaintiff commenced this action. Plaintiff’s amended complaint contains the following eight counts: 1) breach of contract against Alaska ATM and Dainis, 2) conversion against all defendants, 3) fraudulent misrepresentation against all defendants, 4) conspiracy to commit fraud and conversion against all defendants, 5) unjust enrichment against all defendants, 6) unfair trade practices against all defendants, 7) joint and several liability under the UTPA against Alaska ATM and Dainis, and 8) punitive damages against all defendants.

Pursuant to Rules 8(a), 9(b), and 12(b)(6), Federal Rules of Civil Procedure, defendants now move to dismiss all claims against them, except for the breach ...


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