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 , theref ore , 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 & others 1

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 fo r 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 arbitr ation 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.2



### 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 arbitr ation 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 , an d 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 , a re corporation s 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 p resident and

t reasurer of Boss. The p laintiffs are some of the representatives who went door to door in 2018 to market Sprint ' s wireless services

.3

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 resolve d 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 clai ms against each defendant individual ly 3 : 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 d efend ants 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.4

The plaintiff s 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 , t he judge erroneously stated , tha t the " plaintiffs settled their claims against Boss and Bekboss y nova " 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 th e incorporated arbitration agreements. T he 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 Bekboss y nova had settled with the plaintiffs. In reviewing this decision , w e 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 d enial of the motion to compel arbitration de novo. Machado v. System4 LLC , 471 Mass.
204 , 208 (2015). We address each of the defendants ' a rgument s in turn.
1. Equitable estoppel

. " [ I ] t remains a fundamental principle that arbitration is a matter of contract , not5

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

asser ting 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 ). D efendants 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 toge ther [ and ]

. . . consistently charged both [defendants] with equal wrongs , [and]6

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 exp ressly 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 . Whi le 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 w ho 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 arbitrat ion is not , and cannot be , solely based on judicial economy. See Miller v. Cotter , 448 Mass. 671 , 684

- 685 (2007)

.7

against that party. Here the plaintiffs have treated the defendants differently for substantive reasons , and equitable estopp el 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 Bekboss y nova " 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 r eason , 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 relate d 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

comp el 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 Kuralay8

Bekbossynova is reve rsed. The matter is remanded to the Superior Court for further proceedings consistent with this
decision.

So o rder ed

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

Clerk

Entered: April 21 , 2023.

5 The panelists are listed in order of seniority.