UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Stephen Andrews Case No. 19-cv-817-PB v. Opinion No.

Earl’s Restaurants USA Inc. and Earl’s Restaurants Ltd.

MEMORANDUM AND ORDER

Pro se plaintiff Stephen Andrews (“Plaintiff” or “Andrews”)

has sued Earl’s Restaurants USA Inc. and Earl’s Restaurants Ltd

(collectively “Defendants” or “Earl’s Restaurants”) for one

count of breach of contract and one count of identity theft and

fraud. Earl’s Restaurants filed a motion to dismiss the identity

theft and fraud claim, asserting that Andrews has no private

right of action under federal or state criminal identity theft

statutes. For the reasons that follow, I grant Earl’s

Restaurants’s motion to dismiss the identity theft and fraud

claim.

I. BACKGROUND

Earl’s Restaurants employed Andrews as the Vice President

of Real Estate from January 9, 2012 through August 9, 2018. Am.

Compl., Doc. No. 12 at 2 ¶¶ 13, 15; 3 ¶ 17. During Andrews’s

employment, Earl’s Restaurants listed him as a director on corporation documents filed with the Massachusetts and Texas

Secretary of State Offices. See Doc. No. 12 at 5 ¶ 41. Earl’s

Restaurants terminated Andrews on August 9, 2018. Doc. No. 12 at

3 ¶ 23. Nevertheless, Andrews erroneously appeared as a director

in documents subsequently filed by Earl’s Restaurants with those

offices. See Am. Answer, Doc. No. 17 at 6–7 ¶¶ 41, 42; see also,

Doc. No. 12 at 5 ¶¶ 41, 42.

Andrews alleges that Earl’s Restaurants failed to remove

him, a citizen of New Hampshire, as a director on the

Massachusetts filings in order “to remain in compliance with US

citizenship requirements for liquor licensing under”

Massachusetts law. Doc. No. 12 at 5–6 ¶ 43. He also claims that

he “was forced to expend his own funds to hire an attorney to .

. . file a Notice of Resignation with the Massachusetts

Secretary of State” and that his subsequent “request for

reimbursement from [Earl’s Restaurants] was rejected.” Doc. No.

12 at 6 ¶ 44. 1 Andrews contends that, by filing the state

documents that erroneously included him as a director, Earl’s

Restaurants used his “identity without authorization or

consent.” Doc. No. 12 at 7 ¶ 50. He seeks “damages in the

1 Andrews does not mention whether he took action to remedy the State of Texas filings.

2 payment of fees and costs to remove [his] name from the

corporate records . . . .” Doc. No. 12 at 7 ¶ 51.

Earl’s Restaurants has filed a motion to dismiss the

identity theft and fraud claim pursuant to Rule 12(b)(6),

asserting that Andrews has failed “to state a claim upon which

relief can be granted.” Mot. to Dismiss Identity and Fraud Cl.

Pursuant to Fed. R. Civ. P. 12 (b)(6), Doc. No. 18; accord Fed.

R. Civ. P. 12(b)(6).

II. STANDARD OF REVIEW

To overcome a motion to dismiss under Rule 12(b)(6), the

plaintiff must make factual allegations sufficient to “state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

,

,

(2009) (quoting Bell Atlantic Corp. v. Twombly,

,

,

(2007)). Under this

plausibility standard, the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

This

pleading requirement demands “more than a sheer possibility that

[the] defendant has acted unlawfully,” or “facts that are merely

consistent with [the] defendant’s liability.”

Although the

complaint need not set forth detailed factual allegations, it

3 must provide “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.”

In evaluating the pleadings, I remove any conclusory

statements from the complaint, and then I credit as true all

non-conclusory factual allegations and the reasonable inferences

drawn from those allegations to determine if the claim is

plausible. Ocasio-Hernández v. Fortuño-Burset,

(1st Cir. 2011). I “may also consider ‘facts subject to judicial

notice, implications from documents incorporated into the

complaint, and concessions in the complainant’s response to the

motion to dismiss.’” Breiding v. Eversource Energy,

,

49 (1st Cir. 2019) (quoting Arturet-Vélez v. R.J. Reynolds

Tobacco Co.,

, 13 n.2 (1st Cir. 2005)).

III. ANALYSIS

Because Andrews is a pro se litigant, I construe his

complaint very liberally. See Haines v. Kerner,

(1972) (per curiam); Boivin v. Black,

(1st

Cir. 2000). Even so, his complaint states only a conclusory

claim for relief. In his objection to the motion to dismiss, he

explains that the sole basis of his identity theft and fraud

claim is the Massachusetts criminal identity theft statute. Mem.

of Law in Support of Obj. to Mot. to Dismiss Identity Theft and

4 Fraud Claim Pursuant to Fed. R. Civ. P. 12(b)(6), Doc. No. 19-1

at 2; accord Mass. Gen. Laws Ann. ch. 266, § 37E.

Andrews’s claim for relief fails because no private right

of action for damages exists under either the Massachusetts

criminal identity theft statute or its federal law counterpart. 2

IV. CONCLUSION

For the reasons explained above, I grant the motion to

dismiss the identity theft and fraud count (Doc. No. 18).

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

December 17, 2019

cc: Stephen Andrews, pro se Michael D. Ramsdell, Esq.

2 Defendants raise and reject other possible legal theories that Andrews might have raised to support his claim. Because Andrews argues that his identity theft and fraud claim is based solely on the Massachusetts identity theft statute, I need not consider defendants' arguments challenging potential claims based on alternative theories.

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