United States District Court, D. Massachusetts
MEHMET KAHVECI, d/b/a FANEUIL HALL DENTAL ASSOCIATES, Plaintiff,
CITIZENS BANK, N.A., Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
Dennis Saylor IV, United States District Judge
an action arising from an employee's unauthorized
depositing of company checks into her personal checking
account. Plaintiff Mehmet Kahveci operates a dental practice
in Boston, Massachusetts. His office manager embezzled funds
by depositing checks addressed to Kahveci's business into
her own checking account at defendant Citizens Bank. The
complaint contends that the bank was negligent in letting the
employee deposit the checks. Defendant has moved to dismiss
the complaint for failure to state a claim upon which relief
can be granted. For the reasons stated below, the motion will
facts are set forth as described in the complaint.
Kahveci is a dentist and manages Faneuil Hall Dental
Associates, a dental practice in Boston, Massachusetts.
(Compl. ¶ 3). As part of his practice, he accepts
payments from patients directly and from health insurance
companies. (Id. ¶ 5). At all times relevant to
the complaint, any checks received were endorsed by
Kahveci's office with a rubber stamp, stating “For
deposit only Acct # 1107889437 Faneuil Hall Dental Associates
M. Kahveci D.M.D.” (Id. ¶ 7). Checks were
supposed to be deposited in an account numbered 1107889437 at
Citizens Bank titled “Faneuil Hall Dental
Vaysglus was employed by Kahveci as an office manager
beginning in July 2008. (Id. ¶ 13). As office
manager, her responsibilities included submitting invoices to
insurers, processing and endorsing checks with the rubber
stamp, and making daily bank deposits into the practice's
account at Citizens Bank. (Id. ¶ 14).
“early 2015, ” Kahveci received a notice from the
Internal Revenue Service stating that he had underreported
his practice's gross income for the 2013 tax year by
almost $100, 000. (Id. ¶ 8). The IRS stated
that although Kahveci had reported gross income of $1, 513,
665, gross receipts for the year were $1, 610, 298.
(Id.). Kahveci had calculated the $1, 513, 665
amount by totaling all deposits made into the Citizens Bank
account. (Id. ¶ 9).
then investigated his office's gross receipts from 2009
through 2014. (Id. ¶ 10). The investigation was
completed in March 2015. (Id. ¶ 12). He learned
that during that five-year period, the total amount deposited
into the account was $337, 737.32 less than the amount paid
by patients and insurance companies to his practice.
(Id. ¶ 11). He further discovered that Vaysglus
had taken insurance checks payable to his practice and
deposited them into one of her two personal accounts, also at
Citizens Bank. (Id. ¶ 15). Vaysglus was not
authorized, either orally or in writing, to deposit those
checks into her own accounts. (Id. ¶ 16).
misappropriated these checks in two ways: she either (1)
endorsed checks payable to “Faneuil Hall Dental
Associates” or “Mehmet Kahveci DMD” with
the handwritten words “pay to the order of Julia
Vaysglus” and signed her name, or (2) simply deposited
the checks into her personal account without any further
endorsement. (Id. ¶¶ 17, 20). Citizens
Bank credited Vaysglus's accounts in the full amount of
each check. (Id. ¶ 18). In addition, it did not
inquire as to whether Vaysglus was authorized to endorse the
checks or deposit them into her own accounts. (Id.
complaint was originally filed in the Suffolk County Superior
Court on February 1, 2018, and asserts claims for conversion
and negligence. Citizens Bank first received a copy of the
complaint on February 23, 2018. (Not. of Removal ¶ 5).
It timely removed the action to this Court on March 9, 2018.
It has now moved to dismiss the complaint, contending that
all claims are time-barred.
motion to dismiss, the court “must assume the truth of
all well-plead[ed] facts and give . . . plaintiff the benefit
of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st
Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77
(1st Cir. 1999)). To survive a motion to dismiss, the
complaint must state a claim that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In other words, the “[f]actual allegations must
be enough to raise a right to relief above the speculative
level, . . . on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).”
Id. at 555 (citations omitted). “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 556). Dismissal is appropriate
if the complaint fails to set forth “factual
allegations, either ...