            United States Court of Appeals
                       For the First Circuit


No. 13-2335

                         DARRELL D. DEBNAM,

                        Plaintiff, Appellant,

                                 v.

                        FEDEX HOME DELIVERY,
          a division of FEDEX GROUND PACKAGE SYSTEM, INC.,

                        Defendant, Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. George A. O'Toole, U.S. District Judge.]


                               Before

                    Kayatta, Baldock,* and Selya,
                           Circuit Judges.


          James W. Simpson for appellant.
          William M. Jay, with whom James C. Rehnquist, Kate E.
MacLeman, Molly Rhodes, and Goodwin Procter LLP were on brief, for
appellee.




                          September 8, 2014




     *
         Of the Tenth Circuit, sitting by designation.
             KAYATTA, Circuit Judge. Darrell Debnam filed a complaint

against FedEx asserting wage payment claims that can only be

brought by an employee against an employer, and also asserting an

unfair business practice claim under Massachusetts' so-called

"Chapter 93A," Mass. Gen. Laws Ann. 93A, that cannot be brought by

an employee against his employer as such. The actual facts alleged

in the complaint painted an ambiguous relationship between Debnam

and FedEx.      Conclusory allegations of the complaint, however,

forcefully and without reservation staked out the position that

Debnam was a FedEx employee.              Reading the complaint through the

prism of the unambiguous conclusory allegations, the district court

dismissed     the    Chapter   93A        claim   as   incompatible    with    an

employer/employee relationship.            Debnam thereafter made no attempt

to amend his complaint, despite ample opportunity to do so.               After

discovery, the district court ruled on summary judgment that Debnam

was not an employee under the wage law, dismissing his remaining

claim.     Debnam now appeals the district court's earlier dismissal

of   his   Chapter   93A   claim     to    the    extent   that   dismissal   was

predicated on his being an employee.               We affirm, concluding that

regardless of whether Debnam was an employee, the allegations in

his complaint do not plausibly establish that his actions satisfied

Chapter 93A's conception of "trade or commerce," as required to

prevail under the relevant provision of Chapter 93A.




                                          -2-
                                   I. Background

                 Because this appeal challenges the dismissal of Debnam's

claim       on   a   motion   to   dismiss    under   Federal   Rule   of   Civil

Procedure 12(b)(6), we take as true the facts presented in his

complaint and draw all reasonable inferences in his favor. A.G. ex

rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013).

                 Debnam began work for FedEx in 2004.            Starting as a

driver with a single route, he soon acquired the rights to service

multiple routes, operating nine of them as of June 2009.                In this

capacity, Debnam owned or leased eleven delivery vehicles, which he

paid to maintain, repair, and insure.                 He also oversaw drivers

working under him, paid their federal employment taxes, purchased

their uniforms, and hired temporary replacements when they took

time off.

                 Debnam signed a form agreement with FedEx classifying him

as an independent contractor.1 Under the agreement, FedEx retained

the right to:

                 •      promulgate mandatory standards regarding              the
                        appearance of vehicles and drivers;

                 •      promulgate mandatory standards regarding the
                        qualifications of people employed as drivers;




        1
       Debnam did not attach the actual contract to his complaint,
but FedEx submitted it in briefing the motion to dismiss, and
Debnam has never opposed its consideration. See Maloy v. Ballori-
Lage, 744 F.3d 250, 251 n.1 (1st Cir. 2014).


                                        -3-
            •        reconfigure the size or layout of the area
                     serviced by Debnam at the company's sole
                     discretion (and adjust his pay accordingly),
                     after giving five days' notice; and,

            •        terminate the agreement for any reason after
                     giving thirty days' notice.2


            In his complaint, Debnam claimed that "the behavioral and

financial       control   manifested    over   the   drivers   by    [FedEx]

demonstrates that the drivers are employees rather than independent

contractors."      He therefore pressed two claims under Massachusetts

statutes that apply only to employees, including the state's basic

wage law, Mass. Gen. Laws ch. 149, § 148.            He also alleged (in a

separate count) that FedEx engaged in unfair or deceptive business

in violation of Chapter 93A.           That claim is the subject of this

appeal.   The remainder of Debnam's fourteen counts for relief are

not material here.

            FedEx moved to dismiss the complaint. As to Chapter 93A,

the company argued that because Debnam had asserted that he was an

employee of FedEx, he could not press a claim under the statute.

As   FedEx's     motion   explained,     the   statute   applies    only   to

transactions occurring in "trade or commerce," Mass. Gen. Laws Ann.

93A, § 2, and Massachusetts courts have held that employees and



     2
      Debnam's complaint also alleges that the contract gave FedEx
various other ways to control his operations, such as the right to
disapprove the hiring of any driver. These mechanisms of control
are not evident from the agreement, but they do not affect our
analysis in any event.

                                       -4-
employers do not act in trade or commerce when they interact with

each other as such, see Manning v. Zuckerman, 388 Mass. 8, 13

(1983).     As to the wage claims, FedEx made only a procedural

objection, claiming that Debnam failed to submit a complaint to the

attorney general as required to file suit under the statute, but

the company later dropped this argument.

            The district court dismissed Debnam's Chapter 93A claim,

citing the rule that the statute generally does not apply to

employer/employee        relationships.          See   Debnam   v.   FedEx      Home

Delivery, 2011 WL 1188437, *2 (D. Mass. Mar. 31, 2011).                The court

held that "it is inconsistent with the overall gist of [Debnam's]

complaint, especially the claims under the Massachusetts statutes

[applying only to employees], for him to assert that he is within

the scope of Chapter 93A because he is an independent contractor."

Id.   The court added that the "subsidiary factual pleadings of the

complaint"      did    not   support   a   conclusion    that   Debnam    was    an

independent contractor.         Id.

            FedEx eventually sought summary judgment on Debnam's

remaining claims. The company argued that Debnam could not recover

under     the   wage     law   because     the    statute   applies      only    to

"'individuals' and not to business entities," citing Mass. Gen.

Laws ch. 149, § 148B.            Debnam, the company pointed out, had

operated his delivery business at "first as a partnership and then

as limited liability company."             The district court rejected the


                                         -5-
notion that "a person acting under the legal form of a partnership

or limited liability company" is automatically ineligible to sue as

an "individual" under the wage law. It nevertheless found that, in

the circumstances of this case, "the plaintiff's relationship with

FedEx   Ground      was    that     of    .     .    .   a    'legitimate   independent

contractor' in a 'business-to-business relationship," precluding

Debnam from recovering under the wage statute.                         Debnam v. FedEx

Home Delivery, 2013 WL 5434142, *1 (D. Mass. Sept. 27, 2013)

(quoting an advisory from the Massachusetts Attorney General). The

district court therefore granted summary judgment to FedEx on

Debnam's remaining claims.

            Debnam appeals only the district court's decision to

dismiss his Chapter 93A claim.

                            II. Standard of Review

            We review de novo the district court's dismissal of a

claim under Federal Rule of Civil Procedure 12(b)(6). A.G. ex rel.

Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013).                             In

deciding whether the district court properly dismissed a claim, we

ask whether the complaint "state[s] a claim to relief that is

plausible     on    its    face,"        accepting           the   plaintiff's   factual

allegations        and    drawing        all     reasonable        inferences    in   the

plaintiff's favor.         Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007).     Moreover, "we may affirm on any basis apparent in the




                                               -6-
record."   Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237 n.11

(1st Cir. 2013).

                             III. Analysis

           Chapter   93A   prohibits    "unfair   or    deceptive   acts   or

practices in the conduct of any trade or commerce."             Mass. Gen.

Laws Ann. 93A, § 2(a). The statute contains one section pertaining

to consumer transactions and another pertaining to transactions

between businesses or people engaging in business.           See Mass. Gen.

Laws Ann. 93A, §§ 9, 11.    We assume that Debnam is proceeding under

the latter section, section 11, rather than the former.3

           The relevant statutory provision creates a cause of

action only if both parties were engaged in "trade or commerce"

when they took part in the transactions giving rise to the suit.

Mass. Gen. Laws Ann. 93A, § 11 (creating liability when "[a]ny

person who engages in the conduct of any trade or commerce . . .

suffers any loss of money or property, real or personal, as a

result of the use or employment by another person who engages in

any trade or commerce of an unfair method of competition or an

unfair or deceptive act or practice"); Linkage Corp. v. Trustees of

Boston Univ., 425 Mass. 1, 23 & n.33 (1997).           Massachusetts courts

have narrowed the scope of the statute by interpreting "trade or


     3
       If Debnam were pursuing a claim under section 9, his claim
would fail because, among other things, Debnam did not plead that
he sent a demand letter to FedEx thirty days before filing his
complaint, a prerequisite for such a consumer suit. See Mass. Gen.
Laws Ann. 93A, § 9(3).

                                  -7-
commerce" to exclude various kinds of activities. For example, the

offering of services for sale qualifies as "trade or commerce" only

when the services are "offered generally by a person for sale to

the public in a business transaction."            Manning v. Zuckerman, 388

Mass. 8, 13 (1983).         Consequently, the statute     "is not available

to parties in a strictly private transaction," such as someone

seeking to sue his or her business partner.             Linkage Corp., 425

Mass. at 23 n.33.        For the same reason, an employee cannot bring a

suit against his or her employer under Chapter 93A.            Id.; Manning,

388 Mass. at 13-14.

             The parties therefore focus on whether Debnam's complaint

precluded him from arguing that he was an independent contractor

rather than employee. The complaint was inartfully drawn, inviting

a narrow reading as staking out only the position that Debnam was

an employee.         It repeatedly alleged expressly that he was not an

independent contractor. And it contained neither the structure nor

the   express    language     of   a   pleading   asserting   claims   in   the

alternative.         On the other hand, the factual allegations in the

complaint could support a claim that Debnam was (as the court

eventually held) an independent contractor.           As for the conclusory

allegations that Debnam was not an independent contractor, we

ordinarily      do    not   heed   a   complaint's    assertion   of   "legal

conclusions couched as fact," relying only on its "[n]on-conclusory

factual allegations." Ocasio-Hernández v. Fortuño-Burset, 640 F.3d


                                        -8-
1, 12 (1st Cir. 2011) (internal quotation marks, alterations

omitted).4       That being said, it is remarkable that, once the

district court announced how it read the complaint, Debnam never

sought to amend it to make clear his intention to plead alternative

characterizations of his relationship with FedEx.

             Ultimately, we need not decide whether the district court

properly read the complaint as necessarily incompatible with an

alternative      claim    that   Debnam      was   an    independent     contractor.

Rather, we affirm because, even if the facts in the complaint can

be   read   as    preserving     such    a   claim      in   the   alternative,    the

complaint still fails to plead a violation of Chapter 93A.                          As

FedEx points out, the Chapter 93A claim depends in large but not

sufficient       part    on   establishing      that     Debnam    and   FedEx    were

interacting       in    "trade   or     commerce,"       within    the   meaning    of

Chapter 93A. As we have previously suggested, the relevant inquiry

"hinge[s] not on the label of 'independent contractor,' but on a

fact-specific, case-by-case analysis into the type of relationship

that the independent contractor has with the company at issue."

McAdams v. Massachusetts Mut. Life Ins. Co., 391 F.3d 287, 303 (1st




      4
        While one might argue that the conclusory statements
nevertheless amounted to a judicial admission, FedEx does not take
that position, perhaps aware of precedent indicating that "legal
conclusions are rarely considered to be binding judicial
admissions.” Harrington v. City of Nashua, 610 F.3d 24, 31 (1st
Cir. 2010) (quoting parenthetically Commercial Money Ctr., Inc. v.
Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007)).

                                          -9-
Cir. 2004).5   Specifically, under Massachusetts precedent, we must

determine    whether    Debnam's   allegations     plausibly    support   a

conclusion that he was offering his delivery services "generally

. . . for sale to the public in a business transaction."          Manning,

388 Mass. at 13.      If not, Debnam's claim is barred whether or not

he was an independent contractor. See id.; Benoit v. Landry, Lyons

& Whyte Co., Inc., 31 Mass. App. Ct. 948, 948-49 (1991) (holding

that a real estate salesman, even if an independent contractor of

the defendant, was not engaged in "trade or commerce" because his

relationship   with    the   defendant    was   exclusive);    Speakman   v.

Allmerica Fin. Life Ins., 367 F. Supp. 2d 122, 140 (D. Mass. 2005)

(reaching the same result on similar facts).

            As described in the complaint, Debnam's business was

devoted entirely to providing delivery services to FedEx alone.

Consequently, the complaint does not plausibly support a conclusion

that Debnam engaged in trade or commerce by offering services for

sale to the public. Because Debnam has thus failed to allege facts

that would plausibly support a conclusion that his interactions




     5
        We noted in McAdams that it was not entirely clear
"[w]hether an independent contractor can recover for a 93A
violation . . . under Massachusetts law." 391 F.3d at 303. We
therefore resolved the case on other grounds. Here, we ask not
whether independent contractors are categorically ineligible to sue
under Chapter 93A but rather whether Debnam was eligible under the
facts alleged in his complaint. We think that Massachusetts law
clearly resolves that question.

                                   -10-
with FedEx occurred in trade or commerce within the meaning of

Chapter 93A, his claim was properly dismissed.

           Having   reached   this    conclusion,   we   need   not   devote

significant attention to Debnam's argument that some of FedEx's

conduct occurred immediately after his contract was terminated,

thereby post-dating any employment relationship that may have

existed.   As we have explained, our conclusion does not depend on

whether Debnam was employed by FedEx at any time.          Rather, Debnam

cannot prevail because his complaint fails to allege facts that his

relevant conduct was undertaken in trade or commerce, either while

he worked for FedEx, immediately afterwards, or at any other time.

                              IV. Conclusion

           For the foregoing reasons, we affirm the dismissal of

Debnam's complaint.

           So ordered.




                                     -11-
