MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Pamela Foster
4
appeals from the judgment, under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), dismissing her claim against New England Ballistic Services (NEBS) and Steven B. Dahl. We affirm.
This case arose from the Easton police departments (department) seizure of firearms from Ernest Preciado.
5
As permitted under G. L. c. 140, § 129D, the department transferred the firearms to a private storage facility, operated by NEBS, for storage. Such facilities may charge reasonable fees for such storage. See G. L. c. 140, § 129D. The complaint is devoid of any allegation that Foster (or anyone else) paid NEBS its permitted storage fees before it sold the firearms.
We review the granting of a motion to dismiss de novo. Martinez v. Waldstein, 89 Mass. App. Ct. 341, 345 (2016). In doing so, we accept the plaintiffs well-pleaded factual allegations as true and consider whether they “raise a right to relief above the speculative level” (citation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). We may also consider “any favorable inferences reasonably drawn from” the plaintiffs factual allegations. Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). “[W]e do not accept legal conclusions cast in the form of factual allegations.” Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2010).
On appeal, Foster contends that NEBS is liable “after profiting from an illegal seizure by local law enforcement in violation of” constitutional and statutory claims. The seizure was illegal, she maintains, because “no written notification was given” that Preciados firearms license had been revoked, and such notification is required by G. L. c. 140, § 129B. According to Foster, the absence of written notice rendered the seizure unlawful under the Fourth Amendment to the United States Constitution. She also appears to contend that, by sending the firearms to storage at NEBS within weeks of the seizure, the department deprived Foster of an opportunity to request return of the property.
Foster did not sue the department. As the Superior Court judge properly ruled, this omission disposes of allegations against the department, including its purported failure to notify Preciado that his firearms license had been revoked and to provide a receipt for the seizure. The one-paragraph complaint alleges no theory under which NEBS would be liable for the acts or omissions of the department. See, e.g., Eaton v. Walker, 244 Mass. 23, 30 (1923) (“Resort must be had to the writ to ascertain the parties”). See also G. L. c. 140, § 129D (no provision assigning to private party liability for actions of police).
Fosters claim that NEBS unlawfully refused to return the firearms is similarly unavailing. The applicable statute allows a licensing authority to “transfer possession of such weapon[s] for storage purposes to a federally and state licensed dealer of such weapons and ammunition” and provides that the owner “shall be liable to such dealer for reasonable storage charges.” G. L. c. 140, § 129D. Foster does not allege that the required storage fees for the firearms were ever paid. As the judge ruled, “G. L. c. 140, § 129D does not require an entity like NEBS to turn over such property without first being paid its storage fees.” Absent such payment, Foster had no right to retrieve the firearms, and no claim that they were improperly converted and sold.
Given this analysis, and the lack of any allegation linking Dahl to any purported legal violation, the claims against him were also properly dismissed.
6
Judgment affirmed.
FOOTNOTES
4
. Although the briefs speak of multiple plaintiffs, only Pamela Foster entered an appeal with this court.
5
. Preciado maintains that, although the firearms were in a gun safe in his home, they belonged to Foster and another. Because the ownership of the guns does not affect our analysis, we assume without deciding that Foster owned the firearms.
6
. The defendants’ request for appellate attorneys fees and costs is denied. See Perry v. Zoning Bd. of Appeals of Hull, 100 Mass. App. Ct. 19, 25 n.10 (2021).