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Dr. Ramesh C. Dhingra and Ramesh C. Dhingra Md Sc v. Pnc Financial Services Group

June 20, 2011

DR. RAMESH C. DHINGRA AND RAMESH C. DHINGRA MD SC, PLAINTIFFS,
v.
PNC FINANCIAL SERVICES GROUP, INC. AND PNC BANK, NA, AS SUCCESSOR IN INTEREST TO NATIONAL CITY BANK, AS SUCCESSOR IN INTEREST TO MID AMERICA BANK, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiffs Dr. Ramesh Dhingra ("Dhingra") and Ramesh Dhingra MD SC ("Dhingra MD") (together "Plaintiffs") filed suit against PNC Financial Services Group ("PNC Financial") and PNC Bank, NA ("PNC") (together "Defendants"). Plaintiffs alleged, in Counts I-CXVIII, claims of conversion relating to 118 fraudulently endorsed checks from November 1, 2007 through February 1, 2010. Count CXIX alleged conversion in the alternative, relating to fraudulently endorsed checks from August 8, 2005 through February 1, 2010, including the 118 aforementioned checks. On April 12, 2011 the Court dismissed PNC Financial from the case with prejudice. PNC now moves to dismiss Count CXIX. For the following reasons, the Court grants PNC's Motion to Dismiss Count CXIX in its entirety.

STATEMENT OF FACTS

The following facts are taken from Plaintiffs's Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).

Dhingra alleges that from August 2005 through February 2010, her employee Shivaun Straub ("Straub") fraudulently obtained possession of and deposited checks that were made out either to Dhingra or Dhingra MD without Dhingra's knowledge or consent. (Compl. ¶¶ 6-9.) Dhingra claims that Straub forged Dhingra's signature on the back of each check and that Dhingra had no knowledge that the checks were taken from her until January 2010. (Compl. ¶¶ 10, 17.) Straub took the fraudulently endorsed checks to PNC, which negligently paid the checks to Straub's personal account, in violation of the Illinois Uniform Commercial Code. (Compl. ¶ 14.) Straub deposited only a few checks per month at PNC to avoid raising suspicion, but did so on a regularly monthly basis. (Compl. ¶ 24.) From August 8, 2005 through January 21, 2010, Straub stole and deposited at least $539,299.12 into her own personal account. Of that amount, at least $314,943.45 came from checks deposited between November 1, 2007 and February 12, 2010. (Compl. ¶¶ 21, 32.)

Dhingra learned of the fraud when members of an independent billing department made an unannounced visit to her office on January 25, 2010. (Compl. ¶ 29.) Straub, "realizing her scheme to defraud would be detected," confessed to fraudulently endorsing the checks. (Compl. ¶ 30.)

Plaintiffs filed suit in the Circuit Court of Cook County alleging 118 Counts of conversion and one Count of conversion in the alternative, claiming that Straub's actions constituted an ongoing scheme. (Compl. ¶ 31.) Defendants timely removed. The Court previously dismissed PNC Financial from the case and now PNC moves to dismiss Count CXIX.

STANDARD OF REVIEW

When considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the plaintiff. See Murphy, 51 F.3d at 717. To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true . . . 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when the pleaded factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See id. at 1949.

DISCUSSION

I. Count CXIX

Count CXIX alleges conversion in the alternative. Specifically, Plaintiffs allege that they suffered damages in excess of $539,299.12 as a direct result of PNC's accepting and depositing Straub's forged checks from August 5, 2005 through January 21, 2010. PNC moves to dismiss-arguing first that claims relating to checks deposited prior to November 1, 2007 are time-barred and, second, that the remaining claims in Count CXIX are redundant in light of the claims made in Counts I-CXVIII.

A. Statute of Limitations

Plaintiffs argue that the conversion of all of the checks from 2005 onwards constituted a single, continuing wrong and that therefore none of the converted checks is barred by the applicable three-year statute of limitations. 810 ILCS 5/3-118(g) ("an action for conversion of an instrument, for money had and received, or like action based on conversion . . . ...


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