Rayan Toby v. Allied Universal Security Services.

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

24-P-657

RAYAN TOBY

vs.

ALLIED UNIVERSAL SECURITY SERVICES.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After at least four previous lawsuits relating to the same

incident were dismissed,2 the plaintiff filed a fifth complaint

1The plaintiff refers to the defendant as "Allied Universal
Security Services" in his complaint, while the defendant
identifies itself as "Universal Protection Services, LLC," doing
business as "Allied Universal Protection Services." As is our
custom, we set forth the parties' names as they appear in the
complaint.

2(1) Toby vs. Delhaize, Suffolk Sup. Ct., No. 2184CV00620-H
(Jan. 3, 2022 and May 31, 2022) (defendant's motion to dismiss
allowed in part and finding that plaintiff had not been
assaulted; defendant's motion for summary judgment allowed as to
remaining claims); (2) Toby vs. Delhaize, Plymouth Sup. Ct., No.
2283CV00415C (dismissed on basis of improper
venue/jurisdiction); (3) Toby vs. Jones, Suffolk Sup. Ct., No.
2284CV01734 (October 26, 2022) (defendant's motion to dismiss
granted because, among other reasons, court lacked personal
jurisdiction over defendant); (4) Toby vs. Stop & Shop, Suffolk
Sup. Ct., No. 2284CV01735 (October 18, 2022) (dismissed on
collateral estoppel grounds).
on February 6, 2024, arising from the same incident, alleging

that a security officer working for the defendant, Allied

Universal Security Services ("AUSS"), assaulted him and caused

him pain, suffering, and emotional distress.3 On March 8, 2024, a

different judge of the Superior Court granted the defendant's

motion to dismiss. On appeal, the defendant argues that the

judge erred in dismissing the case because, inter alia, he

produced sufficient evidence demonstrating that an AUSS security

guard assaulted him. We affirm.

Background. On March 14, 2021, the plaintiff was grocery

shopping at Stop & Shop. The plaintiff grew concerned about

catching coronavirus while at the store and made efforts to

distance himself from other patrons. The plaintiff began to use

his cellphone to record store employees and customers who were

not adhering to the COVID-19 social distancing guidelines and

were coming within six feet of him. An AUSS security officer

approached the plaintiff and removed him from the store. In

removing the plaintiff, the plaintiff alleges that the officer

grabbed him by his clothing and forcibly pushed and shoved him

3 Six days later, on February 12, 2024, a judge of the
Superior Court, addressing several unrelated actions the
plaintiff also had commenced, entered a serial and vexatious
litigant order, noting the plaintiff's "pattern of bringing
frivolous suits" that "pose an undue burden on court resources."

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out of the store. No criminal charges resulted from this

incident.

Discussion. "We review the allowance of a motion to

dismiss de novo." Buffalo-Water 1, LLC v. Fidelity Real Estate

Co., 481 Mass. 13, 17 (2018). To survive a motion to dismiss,

the complaint must be "more than labels and conclusions,"

Cannata v. Mashpee, 496 Mass. 188, 191 (2025), and go beyond a

"formulaic recitation of the elements of a cause of action"

(citations omitted). Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007). See Iannacchino v. Ford Motor Co., 451 Mass.

623, 636 (2008). Although the complaint does not necessarily

require "detailed factual allegations," it must contain enough

to "raise a right to relief above the speculative level" when

"assessed on the assumption that all the allegations in the

complaint are true" (quotations and citation omitted). Cannata,

supra.

The defendant makes several arguments as to why the judge

erred in allowing the defendant's motion to dismiss, all of

which are based on the allegation that a security officer

working for the defendant assaulted him. All of these claims

are barred by res judicata.

The doctrine of res judicata is based on the principle that

once a claim has been litigated and decided, public policy,

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considerations of fairness and the requirements of efficient

judicial administration entitle an opposing party, and the

court, to be free from attempts of a party to relitigate the

same claim. See DeGiacomo v. Quincy, 476 Mass. 38, 41-42

(2016). Res judicata refers to claim preclusion and issue

preclusion, the latter of which applies here. See id. at 41.

"Issue preclusion prevents relitigation of an issue determined

in an earlier action where the same issue arises in a later

action, based on a different claim, between the same parties or

[parties in privity with the same parties]" (citations and

quotations omitted). Brookline v. Alston, 487 Mass. 278, 298

(2021). "A party is precluded from relitigating an issue where

(1) there was a final judgment on the merits in the prior

adjudication; (2) the party against whom preclusion is asserted

was a party (or in privity with a party) to the prior

adjudication; and (3) the issue in the prior adjudication was

identical to the issue in the current adjudication, was

essential to the earlier judgment, and was actually litigated in

the prior action" (citations and quotations omitted). Id.

Here, a Superior Court order, dated May 31, 2022, allowing

summary judgment against the plaintiff satisfies all of these

elements. The order, which dismissed the plaintiff's charge of

civil assault against the AUSS security guard at the center of

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his allegations, was a final judgment against the plaintiff and

determined the exact issue underlying all the plaintiff's claims

here -- whether an AUSS security officer assaulted the

plaintiff. The judge concluded that "the evidence of record

permits no reasonable inference that [the security officer

officer] assaulted [the plaintiff] in any fashion cognizable

under Massachusetts tort law," which was dispositive of the

plaintiff's claim. Further, a review of the record demonstrates

that in opposing summary judgment, the plaintiff had the

opportunity to fully litigate the issue. See Jarosz v. Palmer,

436 Mass. 526, 531-532 (2002) (issue "actually litigated" when

issue "was subject to an adversary presentation and consequent

judgment that was not a product of the parties' consent"

[citations and quotations omitted]). The plaintiff, in his

brief, fails to address the preclusive effect of his earlier

cases and the May 31, 2022 judgment entered by the Superior

Court judge. Because all the elements of issue preclusion are

met, the plaintiff's arguments on appeal -- directed solely to

the merits of his claims -- fail.

Asserting that this appeal is frivolous, the defendant has

requested appellate attorney's fees and costs. We agree. See

Marion v. Massachusetts Hous. Fin. Agency, 68 Mass. App. Ct.

208, 212 (2007) ("We may award appellate attorney's fees when we

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determine that an appeal is frivolous"). Consistent with the

procedure set out in Fabre v. Walton, 441 Mass. 9, 10-11 (2004),

the defendant may submit an application for attorney's fees and

costs, with supporting documentation, to this court within

fourteen days of the date of rescript. The plaintiff shall have

fourteen days thereafter to respond.

Judgment of dismissal
affirmed.

By the Court (Henry, Smyth &
Toone, JJ.4),

Clerk

Entered: September 23, 2025.

4 The panelists are listed in order of seniority.

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