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Khan v. East Coast Critical, LLC

Superior Court of Massachusetts, Suffolk

May 27, 2016

Shahzad Khan on Behalf of Himself and Others Similarly Situated
East Coast Critical, LLC et al. [1] No. 135807

          Filed May 31, 2016


          Douglas H. Wilkins, Justice

         This is a putative wage and hour class action brought by Shahzad Khan on behalf of himself and others similarly situated (" Plaintiffs") against East Coast Critical, LLC (" ECC"), Coram Healthcare Corporation of Massachusetts (" CHCM") and Coram Alternate Site Services, Inc. (" CASS") (collectively " Coram" or " Coram Defendants"), as well as Apria Healthcare Group, Inc. The Coram Defendants have filed the " Motion To Dismiss of Defendants Coram, LLC, Coram Healthcare Corporation of Massachusetts and Coram Alternate Site Services, Inc.'s Motion to Dismiss Plaintiff's Class Action Complaint" (" Motion"), which the plaintiffs have opposed. After hearing, for the reasons set forth below, the Motion is DENIED .


         Mr. Khan alleges that he worked as a delivery driver for the defendants and maintained, insured and fueled a motor vehicle that he used to make deliveries. He alleges that he received compensation from ECC, but did not receive the benefits that the defendants' employees received. In Count I, he claims that all of the defendants misclassified him and other drivers as independent contractors in violation of the Massachusetts Independent Contractor Statute, G.L.c. 149, § 148B.

         Based upon his alleged status as an employee, he also alleges violation of the wage and hour statute, G.L.c. 149, § 148 (Count II); violation of the state overtime wage law, G.L.c. 151, § 1A (Count III) and unjust enrichment (Count IV).


         The Coram Defendants assert that the complaint fails to state a claim, " because the Massachusetts Independent Contractor Statute as applied to delivery drivers working for courier companies like ECC has been deemed to be preempted by" the Federal Aviation Administration Authorization Act of 1994, 49 U.S.C. § 14501(c)(1) (" FAAAA"). Def. Mem. at 3.

          At this early stage of the proceeding, the only question is whether the challenged counts and the facts incorporated therein plausibly suggest that the plaintiff is entitled to relief. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008). The court takes the well-pled facts in the complaint as true only for purposes of decision on the Motion. Galiastro v. Mortg. Elec. Regis. Sys., 467 Mass. 160, 171, 4 N.E.3d 270 (2014). The court also reviews documents attached to or specifically referenced in the pleadings for purposes of Mass.R.Civ.P. 12(b)(6). See generally Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000).

         Significantly here, the rules of pleading do not require naming specific statutes and legal theories, as opposed to the facts underlying those theories. Pontremoli v. Spaulding Rehabilitation Hosp., 51 Mass.App.Ct. 622, 626 n.4, 747 N.E.2d 1261 (2001), quoting Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d 243 (1979) (" It is not fatal to the complaint that [the statute in question] was not specifically pleaded . . .'[A] complaint is not subject to dismissal if it would support relief on any theory of law'") (emphasis in original).

         FAAAA preemption of the Massachusetts received extensive discussion in Schwann v. FedEx Ground Package System, Inc., 813 F.3d 429, 432 (1st Cir. 2016), which held:

We find that the express preemption provision of the Federal Aviation Administration Authorization Act of 1994 (" FAAAA"), 49 U.S.C. § 14501(c)(1), preempts the application of [G.L.c. 149, § 148B(a)(2) (" Prong 2")] to FedEx. We also find that the preempted requirement is severable from the two remaining requirements of the Massachusetts Statute, and we remand for further consideration of whether Plaintiffs may prevail on their claims under Massachusetts law by relying on either of those requirements.

See also Massachusetts Delivery Ass'n v. Coakley, 769 F.3d 11 (1st Cir. 2014). However, the FAAAA does not preempt " state laws that have only a 'tenuous, remote or peripheral' impact on prices, routes, or services. Id. at 436, quoting Rowe v. N.H. Motor Transp. Ass'n, 552 U.S. 364, 371, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008). The First Circuit found that Prong 2 did not meet this test. Schwann, 813 F.3d at 440. This court follows that ruling in this case.

         The court also follows the First Circuit's statements on two crucial issues in this case. First, the court adopts that Court's statement ( id., ) that " state laws that are more or less nationally uniform, and therefore pose no patchwork problem, or that have less of a reference to and effect on a carrier's service and routes pose closer questions than that presented" by Prong 2. Prongs 1 and 3 of § 148B(a) on their face adopt wide-spread and apparently nationally uniform tests for determining the employer/employee relationship, including the degree of control and the employee's investment in the business. See, e.g., Commonwealth v. Savage, 31 Mass.App.Ct. 714, 583 N.E.2d 276 (1991). The complaint alleges sufficient facts to show an ...

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