Greek Islands Cuisine Inc v. YourPeople Inc

District Court, E.D. Washington·Decided September 3, 2024·No. 4:24-cv-05045·Unknown

Opinion

FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Sep 03, 2024 SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON

a Washington corporation, NIKOS NO. 4:24-CV-5045-TOR DANAKOS, and NICOLE DANAKOS, ORDER GRANTING IN PART DEFENDANT YOURPEOPLE INC.’S Plaintiffs, MOTION TO DISMISS v. YOURPEOPLE, INC., a Delaware corporation, KEYBANK NATIONAL ASSOCIATION, a national bank, and NEWCOURSE COMMUNICATIONS, INC., Defendants.

BEFORE THE COURT is Defendant YourPeople Inc., d/b/a Zenefits’ Motion to Dismiss (ECF No. 20). This matter was submitted for consideration without oral argument. The Court has reviewed the record and files herein and is fully informed. For the reasons discussed below, Defendant YourPeople Inc., d/b/a Zenefits’ Motion to Dismiss (ECF No. 20) is GRANTED in part. This matter arises out of alleged identity theft resulting in the loss of

$432,500 from a business bank account. Plaintiff Greek Islands Cuisine, Inc. (“Greek Islands”) is a restaurant and catering business in Richland, Washington, owned by Plaintiffs Nikos and Art Danakos. ECF No. 7 at 5, ¶ 4.1. Plaintiffs

maintained a business bank account for Greek Islands with KeyBank National Association in Kennewick, Washington. Id., ¶ 4.2. On June 7, 2022, Plaintiffs learned that the bank account they maintained with KeyBank had been compromised, resulting in the loss of $432,500 stemming from transactions

between May 24 and June 3, 2022. Id. at 6, ¶ 4.3. A third party obtained sensitive account information from a data breach of Newcourse Communications, Inc. (“Newcourse”), a company that provides

mailing services to financial institutions, including HomeStreet Bank where Mr. Nikos and Mrs. Nicole Danakos held personal banking accounts. Id. at 17‒18, ¶ 4.22. Newcourse alerted Plaintiffs on September 7, 2022, that it had discovered a data breach occurring sometime between April 27 and May 3, 2022, whereby the

third party accessed account holder’s full names, account numbers, and possibly mortgage statements which include the last four digits of Plaintiffs’ social security numbers and address. Id. at 18, ¶ 4.23. Plaintiffs contend that the thieves then

used the personal information obtained to pose as Mr. Danakos and commandeer Greek Islands’ bank account with KeyBank by opening a payroll services account with YourPeople, Inc, a web-based human resources and payroll-services provider

that does business as “Zenefits.” Id. at 3, ¶ 2.4. As part of the process of opening the fraudulent payroll account, Zenefits sent a series of “microdeposits,” to Greek Islands’ KeyBank checking account on May 18, 2022, which were refunded to

Zenefits on May 24, 2022. Id. at 7‒8, ¶ 4.7. Additionally, Zenefits reviewed a fraudulent driver’s license that was attributed to Mr. Danakos, but Plaintiffs contend that a bulk of the information contained was incorrect including: Mr. Danakos’ middle name, photo, signature, issue date, address, and license number.

Id. Zenefits completed the onboarding process from Greek Islands on May 25, 2022, and processed a “payroll” file submitted by the third party to establish direct deposit transactions. Id. Zenefits’ service agreement contains a section on the

steps the company undertakes to ensure the user’s qualification to access payroll services and reads in part: These processes include validating your business’s identity, evaluating the financial risk of providing Payroll Services to you, searching various government or regulatory databases including the Office of Foreign Asset Control Sanctions List and database, requesting a deposit from you, and any other processes we, at our sole discretion, deem necessary to qualify you to use or continue to use Payroll Services.

Id. at 10, ¶ 4.11. And the agreement provides that Zenefits participation in the transaction is limited to that of: [A] third party who transmits, on your behalf, your request that (I) The partner bank initiate an ACH debit entry to withdraw funds from company account and (II) The partner bank make payment to payees within four (4) business days after you provide such request [sic].

Id. at 11.

On May 31, 2022, Zenefits submitted a payroll file to KeyBank. Id. At the time of onboarding the new payroll account, Greek Islands had one listed employee on payroll, but by June 3, 2022, Zenefits received an alert that 150 contingent workers were listed on the payroll transaction. Id., ¶ 4.8. Plaintiffs contend that Zenefits should have been concerned, as the payroll was to be disbursed to prepaid debit cards and duplicate social security numbers existed in the identification of employees supposedly receiving pay. Id. However, the direct deposit from Greek Islands’ account processed on June 3, 2022, in the amount of $232,500 and $200,000, totaling a loss of $432,500. Id. at 8‒9. Plaintiffs contend that Zenefits attempted to return $6,000 to Greek Islands’ account on June 7, 2022, but then allowed additional unauthorized debits on June 22 and July 20, 2022. Id.

at 15, ¶ 4.18. Plaintiffs discovered the loss of the $432,500 on June 7, 2022, when KeyBank called Mr. Danakos to inquire if he had ever written a fraudulent check associated with Greek Islands. Id. at 13, ¶ 4.15. After the conversation, Mr.

Danakos checked the Greek Islands’ online banking portal with KeyBank and discovered the missing $432,500. Id. Plaintiffs Greek Islands, Nikos Danakos, and Nicole Danakos brought this

lawsuit against Defendants Newcourse, Zenefits, and KeyBank. Defendant Zenefits filed this Motion to Dismiss Plaintiff Greek Islands’ claims of conversion, negligence, and violation of the Washington Consumer Protection Act. ECF No.

20 at 6‒7. Plaintiff Greek Islands alone brings these claims against Zenefits, and has responded to the Motion to Dismiss, arguing that each claim satisfies the Federal Rule of Civil Procedure 12(b)(6) standard. ECF No. 33. Greek Islands argues that this Court has subject matter jurisdiction under 28 U.S.C. § 1332(a)(2),

as Zenefits is a Delaware Corporation with a principal place of business in California. ECF No. 7 at 4, ¶ 3.2. Greek Islands in turn is a Washington corporation with a principal place of business in Washington. Id. at 2, ¶ 2.1.

I. Motion to Dismiss Standard Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss the complaint for “failure to state a claim upon which relief can be

granted.” A 12(b)(6) motion will be denied if the plaintiff alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A motion to dismiss for failure to state a claim “tests the legal sufficiency” of the plaintiff’s claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). While the plaintiff’s “allegations of material fact

are taken as true and construed in the light most favorable to the plaintiff” the plaintiff cannot rely on “conclusory allegations of law and unwarranted inferences ... to defeat a motion to dismiss for failure to state a claim.” In re Stac Elecs. Sec.

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