United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DLTFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Quality Med,
Inc.'s (“Quality Med”) Motion to Dismiss
Plaintiff's Third Amended Complaint .
Exodus Vision, LLC (Plaintiff or “Exodus Vision”)
is a single-member limited liability company formed under the
laws of the State of Nevada. (Third Am. Compl.
(“Complaint”)  ¶ 1). Its sole member is
a citizen of New York. (Id.). Defendant Touchmark
National Bank (“Touchmark”) is a national bank
with its main office located at Alpharetta, Georgia.
(Id. ¶ 2). Quality Med is a Georgia corporation
with its principal office at Tucker, Georgia. (Id.
January 2011, Exodus Vision purchased multiple “Vision
Center at Meijer” stores, and as part of this purchase,
Exodus Vision also acquired ophthalmic equipment worth about
$181, 790. (Id. ¶ 7). From 2011 to 2015, Exodus
Vision purchased additional ophthalmic equipment for use at
eye care centers. (Id. ¶ 8). In early 2015,
Exodus Vision closed all the eye care centers and shipped the
ophthalmic equipment to various storage facilities for
temporary storage. (Id. ¶ 9).
the shipments was delivered to Dwain Curtis
(“Curtis”) of Ophthalmic Equipment Resource, LLC
(“OER”). (Id. ¶ 10). OER and Exodus
Vision had done business in the past, so Curtis agreed to
store Plaintiff's ophthalmic equipment free of charge at
OER's unused warehouse space located at Lawrenceville,
Georgia. (Id. ¶¶ 11, 12). Plaintiff's
ophthalmic equipment was stored in a segregated area of
OER's warehouse, and Curtis inventoried and placed yellow
tags on Plaintiff's equipment to distinguish it from
OER's own inventory. (Id. ¶¶ 14, 18).
Plaintiff's ophthalmic equipment stored at OER had an
appraised resale value of at least $126,
041.25. (Id. ¶ 19).
August 14, 2014, Touchmark made a loan to OER secured by
OER's existing and after-acquired inventory.
(Id. ¶ 20). In November 2015, OER defaulted on
the loan, and Touchmark advised OER and Curtis that it
intended to conduct a sale of the collateral located in
OER's warehouse. (Id. ¶ 22). Later that
month, Curtis filed Chapter 7 bankruptcy. (Id.
in November 2015, counsel for Curtis and OER and counsel for
Touchmark communicated regularly regarding the sale of the
collateral. (Id. ¶ 24). On November 16, 2015,
Touchmark sought a valuation of its collateral, and OER
provided notice of Plaintiff's interest in the ophthalmic
equipment stored at the warehouse. (Id. ¶ 25).
On November 18, 2015, Touchmark inspected the warehouse as
well as Plaintiff's ophthalmic equipment, which was
tagged to differentiate it from OER's assets. On November
19, 2015, OER provided Touchmark with an itemized list of
Plaintiff's ophthalmic equipment, including each
item's brand, model, and serial number. (Id.
¶ 28). On November 25, 2015, OER provided Touchmark with
another copy of the itemized list of Plaintiff's
ophthalmic equipment as well as Curtis's inventory of the
equipment. (Id. ¶ 32).
December 2, 2015, Exodus Vision, after learning of
Curtis's bankruptcy filing, contacted Touchmark to ask
about the “course of action need[ed] to be taken for
[Plaintiff] to be able to obtain possession of”
Plaintiff's ophthalmic equipment. (Id. ¶
38). From December 2, 2015, to December 16, 2015, Plaintiff
and Touchmark communicated regularly about Plaintiff's
ownership of its ophthalmic equipment and about repossessing
the equipment. (Id. ¶¶ 39-45). Throughout
their communications, Touchmark asserted that it is not able
to identify Plaintiff's equipment with sufficient
certainty and requested additional documentation of
Plaintiff's ownership. (Id. ¶¶ 39, 41,
Complaint asserts that Touchmark, during this time,
contemporaneously sought bids from potential purchasers,
including Quality Med, and allowed the potential bidders to
examine the contents stored at the warehouse. (Id.
¶¶ 50, 51). Plaintiff's Complaint asserts that,
during the examination, Plaintiff's ophthalmic equipment
remained segregated from OER's assets and was tagged as
belonging to Plaintiff, but Touchmark informed at least one
bidder that Plaintiff's ophthalmic equipment was subject
to the sale. (Id. ¶¶ 52, 54).
December 14, 2015, Touchmark emailed Quality Med to accept
Quality Med's bid to purchase all contents of the
warehouse. (Id. ¶ 57). Touchmark, after
accepting Quality Med's bid, next emailed Plaintiff to
express “concerns about the identification of the
equipment” and “to set up a conference call to
further discuss” Touchmark's concerns.
(Id. ¶ 58).
December 16, 2015, Quality Med began removing the contents
from the warehouse, and Touchmark disclosed to Plaintiff that
its ophthalmic equipment had been sold. (Id.
¶¶ 46, 60). Touchmark did not provide Plaintiff
with any information regarding the sale or identify Quality
Med as the purchaser. (Id. ¶¶ 60-70).
Complaint alleges that Quality Med sold all the items it
removed from the warehouse, including Plaintiff's
ophthalmic equipment, to various ...