94 N.E.3d 420
Mass. App. Ct.2018Background
- David King delivered the Patriot Ledger using his own car (up to 250 copies, six days/week) under a written "Wholesale Agreement" with GateHouse; GateHouse terminated the contract in 2011 and King sued claiming misclassification.
- King sought a class action and contended he was an employee under G. L. c. 149, § 148B; related wage-and-deduction claims depended on employee status.
- On cross-motions for summary judgment limited to misclassification, the trial judge found King was an employee because GateHouse failed to prove the delivery service was "outside the usual course of the business" (prong two of §148B).
- The judge entered a Rule 54(b) final judgment on that issue in November 2015; GateHouse appealed and later sought Rule 60 relief, arguing §148B prong two is preempted by the FAAAA (49 U.S.C. §14501(c)(1)) based on recent First Circuit decisions.
- The trial court denied GateHouse's motion to vacate the judgment, concluding GateHouse waived the FAAAA preemption defense by not pleading it earlier and that changed federal decisions did not excuse waiver; the Appeals Court affirmed both rulings.
Issues
| Issue | Plaintiff's Argument (King) | Defendant's Argument (GateHouse) | Held |
|---|---|---|---|
| Whether delivery drivers perform services "outside the usual course of the business" under G. L. c.149, §148B(a)(2) | Drivers perform services in GateHouse's usual course of business; GateHouse publishes and distributes newspapers and delivery is part of that business | Delivery is merely distribution/wholesale or incidental; drivers are independent contractors akin to third‑party carriers | Held drivers performed services in the usual course of GateHouse's business; King is an employee under §148B |
| Whether GateHouse waived the FAAAA preemption defense by failing to plead it or raise it earlier | Waiver applies; plaintiff relied on the judgment and defendant delayed asserting preemption | Defense should be allowed because First Circuit decisions (2016) held prong two preempted by FAAAA; changed law warrants relief | Held GateHouse waived the preemption defense; trial court did not abuse discretion denying Rule 60 relief |
| Whether the change in federal case law (First Circuit) excuses waiver or warrants Rule 60(b)(6) relief | N/A (plaintiff opposed relief) | Changed law (Schwann / Mass. Delivery Assn.) shows preemption and makes earlier defense futile or newly available | Held the FAAAA's meaning did not change as a statute; later appellate rulings did not excuse waiver or justify Rule 60(b)(6) relief |
| Whether FAAAA preemption is jurisdictional and therefore nonwaivable | N/A | FAAAA prohibits States from "enforcing" laws related to motor‑carrier price/route/service, which GateHouse says divests state courts of jurisdiction | Not decided; court declined to resolve jurisdictional question and noted GateHouse may raise it later in proceedings |
Key Cases Cited
- Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321 (Mass. 2015) (analyzes §148B three‑prong test and factors for "usual course of business")
- Chambers v. RDI Logistics, Inc., 476 Mass. 95 (Mass. 2016) (addresses FAAAA preemption issue in Massachusetts context)
- Athol Daily News v. Board of Review of the Div. of Employment & Training, 439 Mass. 171 (Mass. 2003) (newspaper carriers held within usual course of publisher's business)
- Somers v. Converged Access, Inc., 454 Mass. 582 (Mass. 2009) (interpreting §148B prongs and precedent)
- Central Transp., Inc. v. Package Printing Co., 429 Mass. 189 (Mass. 1999) (preemption is an affirmative, waivable defense when it affects applicable law rather than jurisdiction)
- Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214 (Mass. 2003) (preemption treated as waivable affirmative defense)
- Schwann v. FedEx Ground Packaging Sys., Inc., 813 F.3d 429 (1st Cir. 2016) (First Circuit: FAAAA preempted similar state law restriction as to certain delivery drivers)
- Massachusetts Delivery Assn. v. Healey, 821 F.3d 187 (1st Cir. 2016) (First Circuit: FAAAA preemption in motor‑carrier context)