Claudio Brandao et al. 
Jan-Pro Franchising International, Inc. No. 133539
Date May 9, 2016
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION TO COMPEL ARBITRATION OF PLAINTIFF BRANDAO'S
CLAIMS AND TO DISMISS PLAINTIFF LIMA FROM THIS
J. CURRAN, Associate Justice.
Brandao and Rommel Lima have sued, on behalf of themselves
and all others similarly situated, for alleged violations of
the Independent Contractor Statute, G.L.c. 149, § 148B,
and the Wage Act, G.L.c. 149, § 148, by Jan-Pro
Franchising International, Inc. They allege that in contracts
between themselves and BradleyMktg Enterprise, an "
intermediate franchisor" of Jan-Pro, they were
misclassified as independent contractors rather than
employees, and were subject to improper fees and paycheck
deductions. Jan-Pro now seeks to compel the arbitration of
Mr. Brandao's claims, because those claims " arise
out of and [are] directly intertwined with" the contract
between Mr. Brandao and Bradley, Jan-Pro is entitled to
invoke that contract's arbitration clause. Machado v.
System4 LLC, 471 Mass. 204, 211, 28 N.E.3d 401
(2015). For the same reason, Jan-Pro seeks to dismiss Mr.
Lima's claims under the forum selection clause of his
contract with Bradley. For the reasons that follow,
Jan-Pro's motion must be allowed.
2004, Mr. Brandao signed a contract with Bradley to perform
commercial cleaning work as a " unit franchiser."
In May 2008, Mr. Lima signed a similar, but not identical,
unit franchise contract. Bradley entered into these unit
franchise contracts under an intermediate franchise contract
between itself and Jan-Pro, the " master
unit franchise agreements stated that the plaintiffs would
work as independent contractors, required them to pay Jan-Pro
large franchise fees for the cleaning work they received, and
mandated the use of Jan-Pro's name, logo, practices, and
procedures in their work. In addition, Jan-Pro deducted
payments for insurance, supplies, and the like from the
plaintiffs allege that Jan-Pro misclassified them as
independent contractors, in violation of the Independent
Contractor Statute and, in accordance with that
misclassification, charged them fees inappropriate to their
true status as employees, in violation of the Wage Act. They
contend that they are entitled to sue Jan-Pro because it is
Bradley's master franchisor, but that Jan-Pro cannot
invoke the arbitration or forum selection clauses in their
contracts because those contracts were signed only by
Bradley. However, " [w]hen [a] signatory's claims
against a nonsignatory refer to . . . the existence of [a]
written agreement that compels arbitration, the
signatory's claims may be considered to arise out of and
be directly intertwined with that agreement, rendering
arbitration appropriate." Machado, 471 Mass. at
case, if the contracts properly deemed the plaintiffs
independent contractors, then their claims under both the
Independent Contractor Statute and the Wage Act would fail.
Therefore here, as in Machado, " a
decisionmaker [assessing the merits of plaintiffs'
claims] would be compelled to . . . compare the rights and
responsibilities assigned to the plaintiffs in the franchise
agreements to the elements of employee status" in order
to adjudicate their claims. Id. at 213-14. The
contracts are central to Mr. Brandao and Mr. Lima's
claims against Jan-Pro, and so they must in turn abide by,
respectively, the arbitration clause and the forum selection
clause of those contracts.
plaintiffs cannot evade their obligations by claiming that
the complaint does not refer specifically to the unit
franchise contracts, because it is their " actual
dependence on [those agreements] in making out the claim[s]
against" Jan-Pro that makes it appropriate to enforce
the arbitration and forum selection clauses. Id. at
211 (citation omitted). Nor is Jan-Pro bound in this action
by any inconsistent position it may have taken in a prior
action regarding the enforceability of the unit franchising
agreements. To the contrary, it is a foundational rule of
pleading that even in the course of a single action, "
[a] party may . . . state as many separate . . . defenses as
he has regardless of consistency . . ." MassR.Civ.P.
Brandao's argument that Jan-Pro has waived its right to
arbitration is unpersuasive. The court perceives no "
dilatory conduct" by Jan-Pro or " substantial
prejudice" to Mr. Brandao as a result of Jan-Pro's
invocation of the arbitration clause. Carpenter v.
Pomerantz, 36 Mass.App.Ct. 627, 632, 634 N.E.2d 587
(1994). Jan-Pro filed this motion before any discovery,
promptly after the denial of its motion to dismiss, and
relied upon a case issued some six weeks after the filing of
although Mr. Lima contends that the forum selection clause is
an unconscionable result of Jan-Pro's " overweening
bargaining power, " Karty v. Mid-America Energy,
Inc., 74 Mass.App.Ct. 25, 29, 903 N.E.2d 1131 (2009), he
has adduced no facts specific to his case, or evidence of
unfair conduct by Jan-Pro, that would indicate such presence.
Rather, he asserts simply that he is not a native English
speaker and that the forum selection clause was not
specifically highlighted, translated into his native
Portuguese, and explained to him. To hold the clause
unenforceable on these grounds, and thus charge Jan-Pro with
the duty of explaining each clause to preserve its
contractual rights, would relieve Mr. Lima of all
responsibility for his signature and render meaningless the
fundamental precept that " one who signs a written
agreement is bound by its terms whether he reads and
understands them or not." St. Fleur v. WPI Cable
Sys./Mutron, 450 Mass. 345, 355, 879 N.E.2d 27 (2008),
citing Cohen v. Santoianni, 330 Mass. 187, 193, 112
N.E.2d 267 (1953).
Supreme Judicial Court has spoken: a plaintiff who files suit
against a master franchisor and asserts claims dependent upon
a contract to which the master franchisor is a non-signatory
must be prepared to be bound in turn by the arbitration and
forum selection clauses of that same contract. Messrs.
Brandao and Lima have done so here, and must so be bound. The
defendant's motion is ALLOWED; Mr. Brandao is hereby
ORDERED to submit his claims against ...