2016 Mass. App. Div. 37

February 19, 2016 - April 1, 2016

Appellate Division Northern District

Court Below: District Court, Cambridge Division

Present: Swan, P.J., Crane & Nestor, JJ.

Dana H. Fox, pro se.

Thomas W. Kirchofer and John C. LaLiberte, for the defendant.

CRANE, J. The plaintiff, Dana H. Fox (“Fox”), appeals from the dismissal of his claims against the defendant, Volvo Cars of North America, LLC (“Volvo”). Fox served Volvo with four documents entitled “civil cover sheet,” “addendum and motions,” “discovery subpoena,” and “addendum to discovery subpoena.” In response, Volvo filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6). The motion judge conducted a hearing on November 5, 2014, and allowed the motion but granted Fox leave to file an amended complaint within sixty days. On December 3, 2014, Fox filed a document entitled “complaint.” After a hearing on Volvo’s second motion to dismiss, the same motion judge allowed Volvo’s motion on January 30, 2015. [Note 1]

Fox’s complaint and other documents fail to contain factual allegations plausibly suggesting an entitlement to relief. “What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief, in order to ‘reflect[] the threshold requirement of [Fed. R. Civ. P.] 8(a)(2) that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to relief.”’” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007).

Fox describes a series of conditions in a Volvo car that he characterizes as design and safety flaws. He complains that dealership service departments in New Mexico and California will not correct the conditions to his satisfaction. The documents filed by Fox do not assert that he owns the car in question or that Volvo may have been involved in the design, manufacture, distribution, or sale of the car in question. Collectively, Fox’s documents make no claim that Volvo caused these conditions or that Fox was damaged by them. We affirm the motion judge’s rulings because, taken together, Fox’s documents do not meet the aforementioned standard.


[Note 1] While no judgment of dismissal appears to have been entered, the parties have treated the judge’s order as being final. We shall address the merits. See GTE Prod. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995); Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 14 n.5 (2003).