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Commonwealth of Massachusetts
County of Middlesex
The Superior Court
CIVIL DOCKET#: MICV2013-03194-C
RE: Lariviere et al v Aarm Corporation et al
TO: Richard A. Goren, Esquire
101 Federal St Suite 1900
Boston, MA 02110-4210
SEE ATTACHED COPIES.
CLERK'S NOTICE
Dated at Woburn, Massachusetts this 3rd day of December,
2013.
Telephone: 781-939-2757
Michael A. Sullivan,
Clerk of the Courts
BY: Arthur DeGuglielmo
Assistant Clerk
Disabled individuals who need handicap accommodations should contact the Administrative Office
of the Superior Court at (617) 788-8130
cvdblanknotlce~2.wpd 4077407 memord johnson
Diane Kottmyer
MIDDLESEX, ss.
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
CIVIL ACTION NO.
MICV2013-03194-C
DAVID LARIVIERE and
HAFTWARE CORPORATION
Plaintiffs
vs.
AARM CORPORATION,
GITANJALI SWAMY
Defendants
and
ZUCI REALTY, LLC
Reach and Apply Defendant
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANTS' MOTION TO DISMISS1
INTRODUCTION
The plaintiffs, David Lariviere and Haftware Corporation, filed this action against AARM
Corporation and its President, Gitanjali Swamy, asserting various claims arising out of a
1
Both parties have relied on matters outside the pleadings in connection with this motion.
Because this is a motion to dismiss, with one exception, I have not considered these materials In
deciding a Rule 12(b)(6) motion, the court generally may only consider the allegations of the complaint
and any exhibits attached to it, and it may also consider matters of public record, orders and items
appearing in the record of the case. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The plaintiffs
did not attach the Consulting Agreement (the "Agreement") to the complaint, but the defendants
submitted it in connection with their motion to dismiss. Where the defendant attaches a written
instrument to its motion to dismiss, consideration ofthat document does not convert the motion to one
for summary judgment as long as the plaintiff had notice of the document and relied on it in framing the
complaint Marram Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n. 4 (2004). In ruling on this motion,
I have considered only those portions ofthe Agreement that identify the parties to the Agreement and/or
relate to payment for services rendered pursuant to the Agreement.
Consulting Agreement for Professional Services (the "Agreement"). The defendants have moved
to dismiss Counts I and II assetiing claims under the Wage Act; Count IV to the extent that it
asserts claims by Lariviere; Count V (Quantum Meruit); Count VI (Fraud); Count VII (Chapter
93A), and Count VIII entitled, "Pierce the Corporate Veil." For the following reasons,
Defendants' Motion to Dismiss is allowed.
DISCUSSION
In reviewing the sufficiency of a complaint on a motion to dismiss, the court accepts the
allegations in the complaint as true, and draws all reasonable inferences in the plaintiffs favor.
Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011). Howevet~ factual allegations
must be "sufficient to raise a right to relief above the speculative level ... (based] on the
assumption that all the allegations in the complaint are true (even if doubtful in fact) ....."
Jannacchino v. Ford Motor Co., 451 Mass. 623,636 (2008) (ellipses and alteration in original;
internal quotations omitted), quoting Bell At!. Corp. v. Twombly. 550 U.S. 544, 555 (2007). At
the pleading stage, the plaintiff is required to present "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." Id.
at 636, quoting Bell Atl. Corp., 550 U.S. at 557 (internal quotations and alterations omitted).
A. Wage Act Claims - Counts I and II
In Cmmt I, plaintiff Lariviere seeks a declaratory judgment that defendants AARM and
Swamy violated the Wage Act, G.L. c.l49, §148B, by classifying him as an independent
contractor. In Count II, he asserts a claim under the Wage Act.
1. Factual Allegations re Wage Act Violation
2
The complaint alleges that Haftware Corporation was a party to a consulting agreement in
which it agreed to provide services to the defendant, AARM Corporation ('1['1[12, 13). According
to the complaint, Lariviere agreed "to provide software development and machine learning
research services" and AARM agreed to pay "him" $125.00 per hour for most services and to pay
"the amounts due within 45 days of invoice." ('1[13). Lariviere began providing software
development and related services to AARM on or about January of2010 and began working
exclusively for AARM from April to October of2010 ('1[14). Lariviere's duties included
"Architectural Design, Care Implementation," and AARM and its principal, the defendant
Swamy, "referred to Lariviere as their employee." ('1[18). Swamy ordered business cards for
Lariviere and referred to Lariviere as "Chief Architect." ('1['1[18, 19).
Lariviere provided verbal and written estimates for tasks assigned to him ('1[21), as well as
budget estimates ('1[22). In late May of2010, Lariviere informed Swamythat from Janumy
tlu·ough Mm·ch 2010, services totaled $22,000 ('1[25). On or about July 20,2010, Lariviere
submitted his first invoice for services rendered from January to April of2010, totaling
$37,613.75. ('[27). Swmny approved the invoice for payment. On September 17, 2010, Lariviere
sent a second invoice for services provided from May through August 2010 (totaling
$62,116.25), and noted that $12,613.75 was outstanding on the first invoice ('1[31). AARM made
no payments on the second invoice ('1[31). Lariviere complained that he was entitled to be paid
and he provided "two month's advance notice ofthe expected hours." ('1[32). On October 18,
2010, Lariviere submitted his third invoice for services for the month of September (totaling
$17,483.75), "and AARM approved the invoice." ('1[36). On April25, 2011, Lariviere issued a
fourth invoice to AARM, covering the months of October and November ($8,906.25) ('1[53). The
3
complaint alleges, "AARM and Swamy have failed to pay Haftware and Lariviere about
$89,125.00 in fees and wages."
Lariviere alleges in Counts I and II that AARM "mischaracterized him as an independent
contractor" in violation of GL. c.149, §148B, that AARM failed to pay the amounts due under
the Agreement and that AARM is liable for treble damages under the Wage Act.
2. Provisions of Consulting Agreement re Identification ofthe Parties, Determination and
Payment ofWages
The parties to the Agreement are identified as Haftware Corporation, "Consultant" and
AARM Corporation, "Client." Lariviere and Swamy signed the Agreement as Presidents of
Haftware and ARM respectively. They did not sign in their individual capacities. In a section
entitled "Payment," the Agreement provides that the Consultant [Haftware] shall be paid at
varying rates as follows: "$125/hour for all work not otherwise covered by another rate; $105/per
hour for work that shall be equally owned by both Consultant and Client; $85/per hour for work
over which the consultant retains complete ownership ofthe created Intellectual Property;
$75/per hour for work developing statistical models funded by the NSF grant, subject to the
maximum $600/day (8 hours/day) NSF limit; $0/hour for 1) work learning Ruby on Rails or 2)
writing academic papers.
The section continues:
"This payment is all inclusive and the client will not withhold any amounts for tax
or miscellaneous deductions. Consultant is required to submit for approval, a scoped
estimate on time required prior to start of work, timesheets and any IP intent at
submission oftimesheets on work performed. The payment is contingent upon
reasonable adherence to the approved scope of work."
In the next section, the Agreement provides that the Consultant "shall submit invoices for
4
all services rendered and associated end product." Client shall pay the amounts due within forty-
five days of the date ofeach invoice. In a section entitled "Contract Changes," the parties
recognize that "Consultant's original cost and time estimates may be too low due to unforeseen
events, or to factors unknown to Consultant when this agreement was made" or the Client may
desire a mid-product change, and that should either occur, the parties will make a good faith
effort to agree on "all necessary particulars."
3. Discussion-Wage Act
On its face, the complaint fails to state a claim under the Wage Act? TI1e Wage Act
provides: "Every person having employees in his service shall pay weekly or bi-weekly each such
employee the wages earned by him ... and any employee discharged from such employment
shall be paid in full on the day ofhis discharge. The word "wages" shall include any holiday or
vacation payments due an employee under an oral or written agreement. The Wage Act applies
"so far as apt, to the payment of commissions when the amount of such commissions, less
allowable or authorized deductions, has been definitely determined and has become due and
payable to such employee, and commissions so determined and due such employees shall be
subject to the provisions of [§150]." G.L. c.149, §148. The statute permits "employees engaged
in a bona fide executive, administrative or professional capacity" to be paid monthly at their
option and defines salaried employee to include "any employee whose remuneration is on a
weekly, bi-weekly, semi-monthly, monthly or annual basis ..." !d.
The Wage Act inlposes criminal penalties and "has been construed 'narrowly,' the courts
2
In addition to the fact that, as set forth in the text, the complaint fails to state a claim for unpaid
"wages" within the meaning ofthe Wage Act, the three-year statute oflimitations, see G.L. c.l49, §150,
bars all claims from compensation due prior to July 15,2010.
5
being reluctant to extend its reach beyond the wages, salary, 'holiday pay, vacation pay and
definitely determined commissions' which the statute expressly mentions." Prozinski v.
Northeast Real Estate Servs., LLC., 59 Mass. App. Ct. 599, 603 (2003) (holding that severance
pay is outside the jmisdiction ofthe Wage Act because it is contingent on severance). The
legislative intent is to ensure that employees are paid their wages at regular intervals promptly
after they have been earned to prevent the unreasonable detention of earned wages. See id. at
603. The Act is designed to prevent the unreasonable detention of earned wages and the
"question ... is not how broadly to defme wages, but rather, ... what earned wages are within
the meaning ofthe act. Weems v. Citigroup, Inc., 453 Mass. 147, 154, n. 10 (2009).
Even if one were to assume that Lariviere was a party to the contract, the Wage Act
claims would be frivolous. The Agreement did not contemplate compensation on a weekly, bi-
weekly, semi-monthly, monthly or annual basis. The compensation due under the Agreement
varied depending on the nature of the work and whether Haftware was retaining ownership of
intellectual property. Estimates were required before any work was performed and payment was
contingent upon reasonable adherence to the approved scope ofwork. Ifthe invoice was
approved, payment was due 45 days after invoices were sent. As a matter oflaw, any payments
due under the Agreement do not constitute "earned" wages under the statute and G.L. c.l49,
§148 does not apply.
Because the facts as alleged, iftrue, would not establish a violation ofthe Wage Act, the
defendant's motion to dismiss Counts I and II is allowed.
B. Count IV- Breach ofthe Covenant of Good Faith and Fair Dealing
The plaintiffs allege in ,13 that AARM and Haftware executed a Consulting Agreement
6
and in Count III asserts a Breach of Contract Claim by Haftware against AARM. In Count IV,
Lariviere and Haftware assert claims against AARM and Swamy for Breach ofthe Covenant of
Good Faith and Fair Dealing. Lariviere incorporates the allegations in ,!~1 through 80, including
~13. The complaint does not allege that either Lariviere or Swamy was a partyto the Agreement.
The Agreement identifies the parties as Haftware (Consultant) and AARM (Client). It is signed
by Lariviere and Swamy in their representative capacities only. Accordingly, Count IV is
dismissed 1) to the extent that it purports to assert a claim for breach of the covenant of good
faith and fair dealing on behalf ofLmiviere; and 2) to the extent either Haftware or Lariviere
asserts claims against Swamy for breach ofthe covenant of good faith and fair dealing.
C. Count V-Quantum Meruit
In Count V, Lariviere asserts a claim in quantum meruit. He asserts that "to the extent
that any contract between Haftware and AARM is unenforceable or voidable, AARM and
Swamy made implicit promises to pay him in a timely fashion at the rate of$125 per hour." ('I!
89). "Quantum meruit is a claim independent of an assertion for damages under the contract,
although both claims have as a common basis the contract itself. ' Liss v. Studeny, 450 Mass.
473,479-480 (2008) (quotations and citations omitted). Lariviere was not a party to the
Agreement and therefore does not allege facts plausibly suggesting that he is entitled to payment
on a theory of quantum meruit. The motion to dismiss Count V is allowed.
D. Count VI- Fraud byLariviere Against AARM and Swamy
Rule 9(b) requires that "[i)n all averments offraud, mistake, duress or undue influence,
the circumstances constituting fraud, mistake, duress or undue influence shall be stated with
pmticularity." Mass. R. Civ. P. 9(b). "The primary purpose ofmle 9(b) is to place the defendant
7
in a fraud case on notice ofthe specific acts that are alleged to have been fraudulent." Go-Best
Assets Ltd v. Citizens Bank ofMass., 79 Mass. App. Ct. 473, 489 (2011). "At a minimum, a
plaintiff alleging fraud must particularize the identity ofthe person(s) making the representation,
the contents ofthe misrepresentation, and where and when it took place. In addition, the plaintiff
should specify the materiality ofthe misrepresentation, its reliance thereon, and resulting harm."
Equipment & Sys. for Indus., Inc. v. Northmeadows Constr. Co., Inc., 59 Mass. App. Ct. 931,
931-932 (2003). Fragmentary information that is misleading may constitute a fraudulent
representation. Kannavos v. Annino, 356 Mass. 42,48 (1969). "To sustain a claim of
misrepresentation, a plaintiff must show a false statement of a material fact made to induce the
plaintiffto act, together with reliance on the false statement by the plaintiffto the plaintiffs
detriment." Zimmerman v. Kent, 31 Mass. App. Ct. 72,77 (1991).
In Count VI Lariviere alleges that the defendants misrepresented to him that he would be
paid for the work he performed "in accordance with the contract" and refused to pay. The
contract referred to is the Agreement to which Haftware was a party. Lariviere was not a party to
the Agreement and suffered no cognizable legal injury as a result ofthe alleged fraud.
Assun1ing, without deciding, that the allegations were otherwise sufficient to allege fraud with
particularity, Count VI is dismissed on that basis.
E. Count VII-Chapter 93A
The complaint alleges a garden variety breach of contract, i.e., an alleged failure to pay
for services performed pursuant to and in accordance with the Agreement. To the extent the
allegations in Count VII are relevant to this claim, Haftware alleges nothing more than promises
to pay and a failure to pay in accordance with the terms ofthe Agreement. A breach of contract,
8
mere self-interest, see Atkinson v. Rosenthal, 33 Mass.App.Ct. 219,225-226 (1992), rising
instead "to the level of'commercial extortion' or a similar degree of culpable conduct."
Commercial Union Ins. Co. v. Seven Provinces Ins. Co., Ltd., 217 F.3d 33, 40 (1st Cir.2000),
ce1t. denied, 531 U.S. 1146, 121 S.Ct. 1084, 148 L.Ed.2d 959 (2001), citing Anthony's Pier Four,
Inc. v. HBC Assocs., 411 Mass. 451, 474 (1991). Thus, where one withholds payment not
because of "inability to pay," but for the purpose of securing benefits to which one was not
entitled under the contract, there is a violation of Chapter 93A. Id. To the extent the allegations
in Count VII are relevant to this claim, Haftware alleges nothing more than promises to pay and a
failure to pay in accordance with the terms ofthe Agreement. Accordingly, the defendants'
motion to dismiss Count VII is allowed.
F. Count VIII - Pierce the Corporate Veil
Count VIII essentially states nothing more than legal conclusions, see, e.g., ~~115, 117,
119-120. In ruling on a motion to dismiss, the Court does not accept legal conclusions cast as
facual allegations. Schaer, supra, 432 Mass. at 477. Count VIII fails to state a claim upon which
relief may be granted.
G. Count IX - Action to Reach and Apply
Count IX is dismissed. Swan1y was not a party to the Agreement and, for the reasons
stated at pp. 16-17 ofDefendants' Memorandum in Support ofMotion to dismiss, the complaint
does not adequately plead either a common law or statutory right to relief via an action to reach
and apply property in the name ofZUCI Realty, LLC.
9
CONCLUSION AND ORDER
For the reasons stated herein, it is ORDERED that the defendants' Motion to Dismiss is
ALLOWED as to the following counts and/ or claims:
A. Counts I, II, V, VI, VII, VIII and IX, and
B. Count IV alleging Breach ofthe Covenant of Good Faith and Fair Dealing to the
extent that it asserts a claim on behalf ofLariviere and to the extent that it asserts a claim against
Swamy.
Diarie M. Kottmyer
Justice ofthe Superior Court
~.. . /.o ·f_ /.' ·; _,
Dated: '/UU).:L r ...L!J ,;
10

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11-27-13 ORDER GRANTING MOTION TO DISMISS SWAMY

  • 1. Commonwealth of Massachusetts County of Middlesex The Superior Court CIVIL DOCKET#: MICV2013-03194-C RE: Lariviere et al v Aarm Corporation et al TO: Richard A. Goren, Esquire 101 Federal St Suite 1900 Boston, MA 02110-4210 SEE ATTACHED COPIES. CLERK'S NOTICE Dated at Woburn, Massachusetts this 3rd day of December, 2013. Telephone: 781-939-2757 Michael A. Sullivan, Clerk of the Courts BY: Arthur DeGuglielmo Assistant Clerk Disabled individuals who need handicap accommodations should contact the Administrative Office of the Superior Court at (617) 788-8130 cvdblanknotlce~2.wpd 4077407 memord johnson
  • 2. Diane Kottmyer MIDDLESEX, ss. COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT CIVIL ACTION NO. MICV2013-03194-C DAVID LARIVIERE and HAFTWARE CORPORATION Plaintiffs vs. AARM CORPORATION, GITANJALI SWAMY Defendants and ZUCI REALTY, LLC Reach and Apply Defendant MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS1 INTRODUCTION The plaintiffs, David Lariviere and Haftware Corporation, filed this action against AARM Corporation and its President, Gitanjali Swamy, asserting various claims arising out of a 1 Both parties have relied on matters outside the pleadings in connection with this motion. Because this is a motion to dismiss, with one exception, I have not considered these materials In deciding a Rule 12(b)(6) motion, the court generally may only consider the allegations of the complaint and any exhibits attached to it, and it may also consider matters of public record, orders and items appearing in the record of the case. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The plaintiffs did not attach the Consulting Agreement (the "Agreement") to the complaint, but the defendants submitted it in connection with their motion to dismiss. Where the defendant attaches a written instrument to its motion to dismiss, consideration ofthat document does not convert the motion to one for summary judgment as long as the plaintiff had notice of the document and relied on it in framing the complaint Marram Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n. 4 (2004). In ruling on this motion, I have considered only those portions ofthe Agreement that identify the parties to the Agreement and/or relate to payment for services rendered pursuant to the Agreement.
  • 3. Consulting Agreement for Professional Services (the "Agreement"). The defendants have moved to dismiss Counts I and II assetiing claims under the Wage Act; Count IV to the extent that it asserts claims by Lariviere; Count V (Quantum Meruit); Count VI (Fraud); Count VII (Chapter 93A), and Count VIII entitled, "Pierce the Corporate Veil." For the following reasons, Defendants' Motion to Dismiss is allowed. DISCUSSION In reviewing the sufficiency of a complaint on a motion to dismiss, the court accepts the allegations in the complaint as true, and draws all reasonable inferences in the plaintiffs favor. Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011). Howevet~ factual allegations must be "sufficient to raise a right to relief above the speculative level ... (based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ....." Jannacchino v. Ford Motor Co., 451 Mass. 623,636 (2008) (ellipses and alteration in original; internal quotations omitted), quoting Bell At!. Corp. v. Twombly. 550 U.S. 544, 555 (2007). At the pleading stage, the plaintiff is required to present "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." Id. at 636, quoting Bell Atl. Corp., 550 U.S. at 557 (internal quotations and alterations omitted). A. Wage Act Claims - Counts I and II In Cmmt I, plaintiff Lariviere seeks a declaratory judgment that defendants AARM and Swamy violated the Wage Act, G.L. c.l49, §148B, by classifying him as an independent contractor. In Count II, he asserts a claim under the Wage Act. 1. Factual Allegations re Wage Act Violation 2
  • 4. The complaint alleges that Haftware Corporation was a party to a consulting agreement in which it agreed to provide services to the defendant, AARM Corporation ('1['1[12, 13). According to the complaint, Lariviere agreed "to provide software development and machine learning research services" and AARM agreed to pay "him" $125.00 per hour for most services and to pay "the amounts due within 45 days of invoice." ('1[13). Lariviere began providing software development and related services to AARM on or about January of2010 and began working exclusively for AARM from April to October of2010 ('1[14). Lariviere's duties included "Architectural Design, Care Implementation," and AARM and its principal, the defendant Swamy, "referred to Lariviere as their employee." ('1[18). Swamy ordered business cards for Lariviere and referred to Lariviere as "Chief Architect." ('1['1[18, 19). Lariviere provided verbal and written estimates for tasks assigned to him ('1[21), as well as budget estimates ('1[22). In late May of2010, Lariviere informed Swamythat from Janumy tlu·ough Mm·ch 2010, services totaled $22,000 ('1[25). On or about July 20,2010, Lariviere submitted his first invoice for services rendered from January to April of2010, totaling $37,613.75. ('[27). Swmny approved the invoice for payment. On September 17, 2010, Lariviere sent a second invoice for services provided from May through August 2010 (totaling $62,116.25), and noted that $12,613.75 was outstanding on the first invoice ('1[31). AARM made no payments on the second invoice ('1[31). Lariviere complained that he was entitled to be paid and he provided "two month's advance notice ofthe expected hours." ('1[32). On October 18, 2010, Lariviere submitted his third invoice for services for the month of September (totaling $17,483.75), "and AARM approved the invoice." ('1[36). On April25, 2011, Lariviere issued a fourth invoice to AARM, covering the months of October and November ($8,906.25) ('1[53). The 3
  • 5. complaint alleges, "AARM and Swamy have failed to pay Haftware and Lariviere about $89,125.00 in fees and wages." Lariviere alleges in Counts I and II that AARM "mischaracterized him as an independent contractor" in violation of GL. c.149, §148B, that AARM failed to pay the amounts due under the Agreement and that AARM is liable for treble damages under the Wage Act. 2. Provisions of Consulting Agreement re Identification ofthe Parties, Determination and Payment ofWages The parties to the Agreement are identified as Haftware Corporation, "Consultant" and AARM Corporation, "Client." Lariviere and Swamy signed the Agreement as Presidents of Haftware and ARM respectively. They did not sign in their individual capacities. In a section entitled "Payment," the Agreement provides that the Consultant [Haftware] shall be paid at varying rates as follows: "$125/hour for all work not otherwise covered by another rate; $105/per hour for work that shall be equally owned by both Consultant and Client; $85/per hour for work over which the consultant retains complete ownership ofthe created Intellectual Property; $75/per hour for work developing statistical models funded by the NSF grant, subject to the maximum $600/day (8 hours/day) NSF limit; $0/hour for 1) work learning Ruby on Rails or 2) writing academic papers. The section continues: "This payment is all inclusive and the client will not withhold any amounts for tax or miscellaneous deductions. Consultant is required to submit for approval, a scoped estimate on time required prior to start of work, timesheets and any IP intent at submission oftimesheets on work performed. The payment is contingent upon reasonable adherence to the approved scope of work." In the next section, the Agreement provides that the Consultant "shall submit invoices for 4
  • 6. all services rendered and associated end product." Client shall pay the amounts due within forty- five days of the date ofeach invoice. In a section entitled "Contract Changes," the parties recognize that "Consultant's original cost and time estimates may be too low due to unforeseen events, or to factors unknown to Consultant when this agreement was made" or the Client may desire a mid-product change, and that should either occur, the parties will make a good faith effort to agree on "all necessary particulars." 3. Discussion-Wage Act On its face, the complaint fails to state a claim under the Wage Act? TI1e Wage Act provides: "Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him ... and any employee discharged from such employment shall be paid in full on the day ofhis discharge. The word "wages" shall include any holiday or vacation payments due an employee under an oral or written agreement. The Wage Act applies "so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of [§150]." G.L. c.149, §148. The statute permits "employees engaged in a bona fide executive, administrative or professional capacity" to be paid monthly at their option and defines salaried employee to include "any employee whose remuneration is on a weekly, bi-weekly, semi-monthly, monthly or annual basis ..." !d. The Wage Act inlposes criminal penalties and "has been construed 'narrowly,' the courts 2 In addition to the fact that, as set forth in the text, the complaint fails to state a claim for unpaid "wages" within the meaning ofthe Wage Act, the three-year statute oflimitations, see G.L. c.l49, §150, bars all claims from compensation due prior to July 15,2010. 5
  • 7. being reluctant to extend its reach beyond the wages, salary, 'holiday pay, vacation pay and definitely determined commissions' which the statute expressly mentions." Prozinski v. Northeast Real Estate Servs., LLC., 59 Mass. App. Ct. 599, 603 (2003) (holding that severance pay is outside the jmisdiction ofthe Wage Act because it is contingent on severance). The legislative intent is to ensure that employees are paid their wages at regular intervals promptly after they have been earned to prevent the unreasonable detention of earned wages. See id. at 603. The Act is designed to prevent the unreasonable detention of earned wages and the "question ... is not how broadly to defme wages, but rather, ... what earned wages are within the meaning ofthe act. Weems v. Citigroup, Inc., 453 Mass. 147, 154, n. 10 (2009). Even if one were to assume that Lariviere was a party to the contract, the Wage Act claims would be frivolous. The Agreement did not contemplate compensation on a weekly, bi- weekly, semi-monthly, monthly or annual basis. The compensation due under the Agreement varied depending on the nature of the work and whether Haftware was retaining ownership of intellectual property. Estimates were required before any work was performed and payment was contingent upon reasonable adherence to the approved scope ofwork. Ifthe invoice was approved, payment was due 45 days after invoices were sent. As a matter oflaw, any payments due under the Agreement do not constitute "earned" wages under the statute and G.L. c.l49, §148 does not apply. Because the facts as alleged, iftrue, would not establish a violation ofthe Wage Act, the defendant's motion to dismiss Counts I and II is allowed. B. Count IV- Breach ofthe Covenant of Good Faith and Fair Dealing The plaintiffs allege in ,13 that AARM and Haftware executed a Consulting Agreement 6
  • 8. and in Count III asserts a Breach of Contract Claim by Haftware against AARM. In Count IV, Lariviere and Haftware assert claims against AARM and Swamy for Breach ofthe Covenant of Good Faith and Fair Dealing. Lariviere incorporates the allegations in ,!~1 through 80, including ~13. The complaint does not allege that either Lariviere or Swamy was a partyto the Agreement. The Agreement identifies the parties as Haftware (Consultant) and AARM (Client). It is signed by Lariviere and Swamy in their representative capacities only. Accordingly, Count IV is dismissed 1) to the extent that it purports to assert a claim for breach of the covenant of good faith and fair dealing on behalf ofLmiviere; and 2) to the extent either Haftware or Lariviere asserts claims against Swamy for breach ofthe covenant of good faith and fair dealing. C. Count V-Quantum Meruit In Count V, Lariviere asserts a claim in quantum meruit. He asserts that "to the extent that any contract between Haftware and AARM is unenforceable or voidable, AARM and Swamy made implicit promises to pay him in a timely fashion at the rate of$125 per hour." ('I! 89). "Quantum meruit is a claim independent of an assertion for damages under the contract, although both claims have as a common basis the contract itself. ' Liss v. Studeny, 450 Mass. 473,479-480 (2008) (quotations and citations omitted). Lariviere was not a party to the Agreement and therefore does not allege facts plausibly suggesting that he is entitled to payment on a theory of quantum meruit. The motion to dismiss Count V is allowed. D. Count VI- Fraud byLariviere Against AARM and Swamy Rule 9(b) requires that "[i)n all averments offraud, mistake, duress or undue influence, the circumstances constituting fraud, mistake, duress or undue influence shall be stated with pmticularity." Mass. R. Civ. P. 9(b). "The primary purpose ofmle 9(b) is to place the defendant 7
  • 9. in a fraud case on notice ofthe specific acts that are alleged to have been fraudulent." Go-Best Assets Ltd v. Citizens Bank ofMass., 79 Mass. App. Ct. 473, 489 (2011). "At a minimum, a plaintiff alleging fraud must particularize the identity ofthe person(s) making the representation, the contents ofthe misrepresentation, and where and when it took place. In addition, the plaintiff should specify the materiality ofthe misrepresentation, its reliance thereon, and resulting harm." Equipment & Sys. for Indus., Inc. v. Northmeadows Constr. Co., Inc., 59 Mass. App. Ct. 931, 931-932 (2003). Fragmentary information that is misleading may constitute a fraudulent representation. Kannavos v. Annino, 356 Mass. 42,48 (1969). "To sustain a claim of misrepresentation, a plaintiff must show a false statement of a material fact made to induce the plaintiffto act, together with reliance on the false statement by the plaintiffto the plaintiffs detriment." Zimmerman v. Kent, 31 Mass. App. Ct. 72,77 (1991). In Count VI Lariviere alleges that the defendants misrepresented to him that he would be paid for the work he performed "in accordance with the contract" and refused to pay. The contract referred to is the Agreement to which Haftware was a party. Lariviere was not a party to the Agreement and suffered no cognizable legal injury as a result ofthe alleged fraud. Assun1ing, without deciding, that the allegations were otherwise sufficient to allege fraud with particularity, Count VI is dismissed on that basis. E. Count VII-Chapter 93A The complaint alleges a garden variety breach of contract, i.e., an alleged failure to pay for services performed pursuant to and in accordance with the Agreement. To the extent the allegations in Count VII are relevant to this claim, Haftware alleges nothing more than promises to pay and a failure to pay in accordance with the terms ofthe Agreement. A breach of contract, 8
  • 10. mere self-interest, see Atkinson v. Rosenthal, 33 Mass.App.Ct. 219,225-226 (1992), rising instead "to the level of'commercial extortion' or a similar degree of culpable conduct." Commercial Union Ins. Co. v. Seven Provinces Ins. Co., Ltd., 217 F.3d 33, 40 (1st Cir.2000), ce1t. denied, 531 U.S. 1146, 121 S.Ct. 1084, 148 L.Ed.2d 959 (2001), citing Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 474 (1991). Thus, where one withholds payment not because of "inability to pay," but for the purpose of securing benefits to which one was not entitled under the contract, there is a violation of Chapter 93A. Id. To the extent the allegations in Count VII are relevant to this claim, Haftware alleges nothing more than promises to pay and a failure to pay in accordance with the terms ofthe Agreement. Accordingly, the defendants' motion to dismiss Count VII is allowed. F. Count VIII - Pierce the Corporate Veil Count VIII essentially states nothing more than legal conclusions, see, e.g., ~~115, 117, 119-120. In ruling on a motion to dismiss, the Court does not accept legal conclusions cast as facual allegations. Schaer, supra, 432 Mass. at 477. Count VIII fails to state a claim upon which relief may be granted. G. Count IX - Action to Reach and Apply Count IX is dismissed. Swan1y was not a party to the Agreement and, for the reasons stated at pp. 16-17 ofDefendants' Memorandum in Support ofMotion to dismiss, the complaint does not adequately plead either a common law or statutory right to relief via an action to reach and apply property in the name ofZUCI Realty, LLC. 9
  • 11. CONCLUSION AND ORDER For the reasons stated herein, it is ORDERED that the defendants' Motion to Dismiss is ALLOWED as to the following counts and/ or claims: A. Counts I, II, V, VI, VII, VIII and IX, and B. Count IV alleging Breach ofthe Covenant of Good Faith and Fair Dealing to the extent that it asserts a claim on behalf ofLariviere and to the extent that it asserts a claim against Swamy. Diarie M. Kottmyer Justice ofthe Superior Court ~.. . /.o ·f_ /.' ·; _, Dated: '/UU).:L r ...L!J ,; 10