ERICA DIPLACIDO & Others v. ASSURANCE WIRELESS OF SOUTH CAROLINA, LLC, & Others.

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

22-P-950

ERICA DIPLACIDO & others1

vs.

ASSURANCE WIRELESS OF SOUTH CAROLINA, LLC, & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants jointly appeal from an order of a Superior

Court judge that refused to compel arbitration of the

plaintiffs' claims. In July 2019, the plaintiffs filed a

class action complaint, alleging that the various defendants

violated Massachusetts wage laws and failed to pay the

plaintiffs fully for work performed. As set forth in the

complaint, the defendants fall into two groups: (1) the

defendants Boss Enterprises and Kuralay Bekbossynova (the Boss

defendants), with whom the plaintiffs had a written employment

agreement that contained an arbitration clause, and (2)

defendants Assurance Wireless of South Carolina and Sprint

1 Tyler Keeley and Ryan LaBrie.
2 Kuralay Bekbossynova; Boss Enterprise, Inc.; and Sprint
Corporation.
Corporation (collectively, Sprint), with whom the plaintiffs

did not have a written agreement but whom the plaintiffs

allege were also their employer. The judge denied arbitration

as to the Boss defendants on the ground that the motion was

moot, due to his (incorrect) understanding that the claims as

to Boss had been settled. He denied arbitration as to Sprint

because Sprint was a nonsignatory to the arbitration

agreement, and because in light of the nature of the

plaintiffs' claims, Sprint could not compel arbitration under

a theory of equitable estoppel. For the following reasons, we

affirm the denial of the motion as to Sprint, although

arbitration is appropriate as to the Boss defendants.

Background. We summarize the relevant background as

follows. Sprint Corporation and Assurance Wireless of South

Carolina, LLC, are corporations that jointly sell wireless

services. Boss Enterprise, Inc. (Boss), is a corporation that

entered a partnership with Sprint to obtain the services of

representatives to go door to door to market Sprint's wireless

services. Appellant Kuralay Bekbossynova is the president and

treasurer of Boss. The plaintiffs are some of the

representatives who went door to door in 2018 to market Sprint's

wireless services.

2
Before performing their door-to-door marketing, each

plaintiff signed a document labeled "Employment Agreement" (the

employment agreements). The employment agreements contained an

arbitration provision which provided that "[a]ny claims that an

Employee may have against the Company (except for worker's

compensation or unemployment insurance benefits), and any claims

the Company may have against Employee shall be resolved by an

arbitrator and not in a court proceeding." The employment

agreements listed "Company/Employer" as Boss Enterprise and each

respective plaintiff as "Employee." The employment agreements

also stated that the arbitration provision in the employment

agreements is explained more fully in a separate document (the

arbitration agreements).

On July 12, 2019, the plaintiffs filed a class action

complaint, alleging nine claims in total, with three claims

against each defendant individually3: failure to pay plaintiffs

all the wages to which they were entitled; violation of minimum

wages laws; and failure to pay one and a half times the regular

hourly rate for overtime. On February 11, 2021, all defendants

jointly moved to compel arbitration, arguing that the employment

agreements and the arbitration agreements compelled the

plaintiffs to arbitrate their claims against all defendants.

3 Defendants Sprint Corporation and Assurance Wireless of South
Carolina, LLC are collectively treated as Sprint.

3
The plaintiffs filed an opposition to the defendants' motion to

compel, and the motion judge heard oral arguments on July 21,

2021. On July 29, 2021, the motion judge denied the motion as

to the claims against Sprint. In his decision, the judge

erroneously stated, that the "plaintiffs settled their claims

against Boss and Bekbossynova" and accordingly found that the

motion to compel as it related to those defendants was moot.

Discussion. All parties agree that Sprint was not a party

to the employment agreements or the incorporated arbitration

agreements. The defendants argue that despite this, the judge

erred in denying their motion to compel arbitration as to Sprint

for two reasons. First, they argue that the judge erred in

concluding that the doctrine of equitable estoppel did not apply

in this case. Second, they contend that the judge based his

decision on an untrue fact: that Boss and Bekbossynova had

settled with the plaintiffs. In reviewing this decision, we

defer to the motion judge on questions of fact unless they are

clearly erroneous, Licata v. GGNSC Malden Dexter LLC, 466 Mass.

793, 796 (2014), but we review the denial of the motion to

compel arbitration de novo. Machado v. System4 LLC, 471 Mass.

204, 208 (2015). We address each of the defendants' arguments

in turn.

1. Equitable estoppel. "[I]t remains a fundamental

principle that arbitration is a matter of contract, not

4
something to be foisted on the parties at all costs." Landry v.

Transworld Sys. Inc., 485 Mass. 334, 338 (2020) (citations and

quotations omitted). Despite this general principle,

"[e]quitable estoppel typically allows a nonsignatory to compel

arbitration in either of two circumstances: (1) when a

signatory must rely on the terms of the written agreement in

asserting its claims against the nonsignatory or (2) when a

signatory raises allegations of substantially interdependent and

concerted misconduct by both the nonsignatory and one or more of

the signatories to the contract." Machado, 471 Mass. at 211

(citations and quotations omitted). Defendants argue, as they

did below, that the second circumstance applies because the

plaintiffs' claims against the Boss defendants and Sprint are

substantially interdependent and alleged concerted misconduct.

We disagree.

To determine whether the claims of misconduct are

substantially interdependent and concerted, we first look to the

face of the complaint. See Machado, 471 Mass. at 215. Here,

the plaintiffs have crafted separate counts in the complaint

against each defendant based upon their individual actions and

have not alleged that the misconduct was conducted in concert.

Compare Id. at 215-216 (finding equitable estoppel applies where

"plaintiffs have lumped the two defendants together[and]. . .

consistently charged both [defendants] with equal wrongs, [and]

5
fail[ed] to distinguish them."). Moreover, it is evident from

the complaint that the claims against the two defendants

actually rely on differing facts: the claims against the Boss

defendants are based upon an express contractual agreement and

allegations of what the plaintiffs did for Boss; the claims

against the Sprint defendants are not based upon that

contractual agreement, but instead are based upon factual

allegations regarding actions of Sprint, and upon the contention

that the plaintiffs were "actually the employees" of Sprint, and

that Sprint misclassified them as independent contractors.

Accordingly, the complaint expressly does not "lump

together" the Boss defendants and Sprint, and the theory of

liability as to Sprint is distinct, requiring proof of facts

that are not necessary as to the claims against Boss. The case

is thus quite different than Machado, supra. While we recognize

that the claims against the Boss defendants and the claims

against Sprint will have some overlap of witnesses and evidence,

that is not the test for whether a nonsignatory to an

arbitration agreement can compel arbitration.4 A plaintiff who

did not enter an arbitration agreement with another party should

not be forced to arbitrate their separate and distinct claims

4 Our de novo review of this motion to compel arbitration is not,
and cannot be, solely based on judicial economy. See Miller v.
Cotter, 448 Mass. 671, 684-685 (2007).

6
against that party. Here the plaintiffs have treated the

defendants differently for substantive reasons, and equitable

estoppel does not bind the plaintiffs to arbitrate their claims

against Sprint in this case.

2. Untrue fact. All parties agree that the judge's

factual finding that that "plaintiffs settled their claims

against Boss and Bekbossynova" was erroneous. The record does

not support, however, the defendants' argument that the judge's

ruling against Sprint as to the motion to compel was based on

that fact. Even if it was, our review of the motion to compel

is de novo and does not rely on this error. For that reason, we

affirm the judge's ruling as it relates to Sprint. However,

inasmuch as the plaintiffs agree that they had an express

arbitration agreement with Boss, and because the plaintiffs did

not settle their claims with the Boss defendants, we hold that

the motion to compel as it related to the Boss defendants was

not moot. Accordingly, the denial of the motion to compel

arbitration as to the Boss defendants was in error and must be

reversed.

Conclusion. So much of the order as denied the motion to

compel arbitration as to the defendants Assurance Wireless of

South Carolina, LLC, and Sprint Corporation is affirmed. So

much of the order as denied the motion to compel arbitration as

to the defendants Boss Enterprises, Inc. and Kuralay

7
Bekbossynova is reversed. The matter is remanded to the

Superior Court for further proceedings consistent with this

decision.

So ordered.

By the Court (Blake,
Englander & Walsh, JJ.5),

Clerk

Entered: April 21, 2023.

5 The panelists are listed in order of seniority.

8