United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
J. Barbadoro United States District Judge.
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.
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 ¶¶
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 U.S.
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 ¶
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 payment of fees and costs to remove
[his] name from the corporate records . . . .” Doc. No.
12 at 7 ¶ 51.
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
STANDARD OF REVIEW
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, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (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.”
Id. 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.”
Id. Although the complaint need not set forth
detailed factual allegations, it must provide “more
than an unadorned, the-defendant-unlawfully-harmed-me
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, 640 F.3d 1, 12 (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, 939 F.3d 47, 49 (1st Cir. 2019)
(quoting Arturet-Vélez v. R.J. Reynolds Tobacco
Co., 429 F.3d 10, 13 n.2 (1st Cir. 2005)).
Andrews is a pro se litigant, I construe his complaint very
liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam); Boivin v. Black, 225 F.3d 36,
43 (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 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.
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
reasons explained above, I grant the motion to dismiss the