The opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-587
RAYAN TOBY
vs.
GREG DECIOUS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The pro se plaintiff filed a complaint in the Superior
Court alleging that the defendant, the owner or principal of the
plaintiff's former employer, Bay State Linen/Laundry Companies,
Inc., failed to pay him the minimum wage and committed tax
fraud. The defendant filed a motion to dismiss the complaint
pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974),
which the Superior Court judge granted. We affirm.
Discussion. "We review the allowance of a motion to
dismiss de novo, accepting as true the facts alleged in the
plaintiff’s complaint as well as any favorable inferences that
reasonably can be drawn from them" (quotation omitted). Braley
v. Bates, 100 Mass. App. Ct. 259, 260 (2021). "What is required
at the pleading stage are factual allegations plausibly
suggesting (not merely consistent with) an entitlement to
relief, in order to reflect the threshold requirement . . . that
the plain statement possess enough heft to show that the pleader
is entitled to relief" (quotations and internal punctuation
omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636
(2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007).
Insofar as we can discern, the plaintiff lodged two
allegations in his complaint.1 With respect to each, we conclude
that the complaint was properly dismissed for its failure to
state a plausible claim for relief.2 First, the plaintiff
1 The plaintiff's complaint also referenced larceny,
identity theft, and embezzlement, but it is clear from its
content that he pressed arguments grounded in failure to pay the
minimum wage and purported tax fraud.
2 We note the procedural issues involved with this appeal.
The appellant is responsible for providing a record appendix to
this court that includes the documentation required to support
appellate review. See Mass. R. A. P. 18 (a) (1) (A) (v), as
appearing in 481 Mass. 1637 (2019) (appellant's appendix must
include "any parts of the record relied upon in the brief [and]
any document, or portion thereof, filed in the case relating to
an issue which is to be argued on appeal"). "A pro se litigant
is bound by the same rules of procedure as litigants with
counsel." International Fid. Ins. Co. v. Wilson, 387 Mass. 841,
847 (1983).
The plaintiff's appendix in this case arguably fails to
satisfy this standard. His complaint refers to "exhibit (1)" as
being a W-2 form and "exhibit (2)" as being "evidence of the
taxes filed with the [Internal Revenue Service.]" The appendix,
2
alleged that, in 2017, the defendant paid a portion of his
earned wages to the federal government, apparently in a scheme
to recover that payment in the form of a refund.3 In support of
this claim, he referred to a screenshot of a website headed
"Massachusetts Tax Summary," showing, according to his
complaint, an inaccurate reporting of his 2017 income. See
supra, n.2. However, this screenshot clearly depicts "a summary
of [the plaintiff's] 2020 Massachusetts tax return." As the
plaintiff's complaint misapprehends the exhibit purportedly in
however, plainly does not include the exhibits that were
attached to the complaint, if any were attached at all. It does
seem to include the exhibits attached to the plaintiff's
memorandum in opposition to the defendant's motion to dismiss
the complaint, but, there, "exhibit (1)" is labeled
"Massachusetts Tax Summary" and "exhibit (2)" is a 2017 W-2 form
that is nearly impossible to read. Moreover, the complaint
describes "exhibit (3)" as being the plaintiff's pay stubs, but
the "exhibit (3)" presented in the record appendix appears to be
handwritten instructions about how to obtain a finding of
indigency in the trial court. Understanding that "some leniency
is appropriate in determining whether pro se litigants have
complied with rules of procedure," Brown v. Chicopee Fire
Fighters Ass'n, Local 1710, IAFF, 408 Mass. 1003, 1004 n.4
(1990), we proceed under the assumption that "exhibit (1)" in
the record appendix is referred to as "exhibit (2)" in the
complaint, and vice versa. See Iannacchino, 451 Mass. at 631
n.14 ("In evaluating a motion pursuant to Mass. R. Civ. P. 12
(b) (6), we take into consideration . . . items appearing in the
record of the case" [quotation and citation omitted]).
3 The plaintiff stated in his complaint "I . . . did a
little research on my own and saw on the Federal Government Tax
website that the $8,818.37 that was missing off my earnings and
2017 W-2 form which the company stole was filed and reported to
the [Internal Revenue Service (IRS)] in taxes to collect the
refund from [the IRS]."
3
support of it, the complaint cannot be said to be plausible on
its face. See Iannacchino, 451 Mass. at 636. Further, we agree
with the judge below that the federal statutes referenced by the
plaintiff in support of this claim do not give rise to private
causes of action. Cf. Loffredo v. Center for Addictive
Behaviors, 426 Mass. 541, 544-545 (1998).
Second, the plaintiff argued that the defendant failed to
pay him the minimum wage in 2017 and 2018. He contends that he
was paid eleven dollars per hour during both those years, even
though the state minimum wage was twelve dollars per hour in
2018. We agree with the judge that the plaintiff is incorrect
regarding the state minimum wage for both the years 2017 and
2018 -- it remained eleven dollars per hour and was not raised
from eleven to twelve dollars per hour until 2019. See G. L.
c. 151, § 1, as amended through St. 2018, c. 121, § 17
(effective Jan. 1, 2019). Accordingly, the plaintiff's version
of events does not give rise to a cognizable legal claim under
the Wage Act. See id. Given these discrepancies, we cannot say
that the plaintiff's complaint contains "allegations plausibly
suggesting . . . an entitlement to relief." Iannacchino, 451
Mass. at 636, quoting Bell Atl. Corp., 550 U.S. at 557.
In the end, we are unpersuaded by the plaintiff's arguments
on appeal. His brief consists primarily of conclusory
4
assertions about the defendant's alleged wrongdoing without
citation to the record or supporting legal authority; the
assertions accordingly do not rise to the level of appellate
argument.4 See Mass. R. A. P. 16 (a) (9) (A), as appearing in
481 Mass. 1628 (2019). To the extent that any cognizable
argument can be discerned from the plaintiff's papers, it
appears to be that the exhibits he attached to his complaint
support the allegations he asserts. As we have discussed,
however, they plainly do not.
Judgment affirmed.
By the Court (Desmond, Shin &
Singh, JJ.5),
Assistant Clerk
Entered: June 14, 2024.
4 The plaintiff's conclusory assertion that the defendant
violated a list of statutes is not enough to save his appeal or
satisfy this rule.
5 The panelists are listed in order of seniority.
5