United States District Court, D. Massachusetts
WILLIAM REMINGTON and MUSAN DURAKOVIC, on behalf of themselves and others similarly situated
J.B. HUNT TRANSPORT, INC. ABE SILFANI, on behalf of himself and others similarly situated
J.B. HUNT TRANSPORT, INC.
MEMORANDUM AND ORDER ON DEFENDANT'S CONSOLIDATED
MOTION TO DISMISS
RICHARD G. STEARNS DISTRICT JUDGE
are owner-operator truck drivers for defendant J.B. Hunt
Transport Inc., a freight and package delivery service. They
allege that J.B. Hunt improperly classified them to their
detriment as independent contractors, instead of company
employees. J.B. Hunt moves to dismiss the two Complaints as
preempted by the federal Truth-in-Leasing regulations, 49
C.F.R. Part 376.
Remington and Musan Durakovic contracted with J.B. Hunt as
owner-operator drivers in October and November of 2013,
respectively. Remington Compl. ¶¶ 2-3. In
December of 2014, Remington and Durakovic brought a class
action against J.B. Hunt in Middlesex Superior Court,
asserting violations of the Massachusetts Independent
Contractor Statute, Mass. Gen. Laws ch. 149, § 148B,
(Remington Count I) and the Massachusetts Wage Act,
Mass. Gen. Laws ch. 149, §§ 148, 150
(Remington Count II), or, in the alternative, unjust
enrichment (Remington Count III). Remington alleges
that J.B. Hunt hires two classes of truck drivers - employee
drivers and owner-operator drivers. Remington Compl.
¶ 11. While the job descriptions and work requirements
are essentially the same for both classes, id.
¶¶ 14-17, 26-41, owner-operator drivers do not
receive the same benefits as do the employee drivers,
including paid vacation time, personal days, and sick days.
Id. ¶ 18. Remington also alleges that J.B. Hunt
improperly deducts company expenses from the pay of the
owner-operator drivers, including the costs of equipment
repairs, cargo loss and damage, vehicle insurance, and
administrative fees. Id. ¶¶ 19-24.
Hunt removed the Remington Complaint to the federal
district court on diversity grounds. This court, adhering to
its decision in Schwann v. FedEx Ground Package
Sys., Inc., 2015 WL 501512 (D. Mass. Feb. 5, 2015),
allowed J.B. Hunt's motion to dismiss, determining that
the Federal Aviation Administration Authorization Act
(FAAAA), 49 U.S.C. § 14501(c)(1), preempted the second
prong of the Massachusetts Independent Contractor Statute.
Remington v. J.B. Hunt Transp., Inc., 2015 WL
501884, at *1-2 (D. Mass. Feb. 5, 2015).
The FAAAA explicitly preempts state laws “related to a
price, route, or service of any motor carrier . . . with
respect to the transportation of property.” 49 U.S.C.
§ 14501(c)(1). . . . [T]he First Circuit [has]
emphasized that “a statute's ‘potential'
impact on carriers' prices, routes, and services can be
sufficient if it is significant, rather than tenuous, remote,
or peripheral.” [Massachusetts Delivery Ass'n
v. Coakley, 769 F.3d, 11, ] 21 [(1st Cir. 2014)].
Empirical evidence in this regard is not necessary, and
“courts [may] look [ ] to the logical effect that a
particular scheme has on the delivery of services or the
setting of rates.” Id. Such “logical
effect can be sufficient even if indirect.”
Looking to such logical (if indirect) effects, the
application of section 148B to J.B. Hunt and other similar
motor carriers would unquestionably have an impact on
“price, route[s], [and] services” by in effect
proscribing the carrier's preferred business model.
Id., at *1. The court also held that the second
prong of section 148B was not severable from the remaining
two prongs, and that enforcing prongs one and three of
section 148B against motor carriers would produce the same
result - the “‘price, route[s], [and]
services' offered by motor carriers would be impacted by
forbidding the preferred business model.” Id.,
plaintiffs in Remington and Schwann
appealed. While the consolidated appeal was pending, in July
of 2015, plaintiff Abe Silfani filed a similar putative class
action in Middlesex Superior Court. Silfani had contracted as
an owner-operator driver with J.B. Hunt in October of 2013.
Silfani Compl. ¶ 2. In his Complaint, Silfani
alleges that J.B. Hunt failed to pay him the contractually
agreed rate for all of the miles, pick-ups, and deliveries
that he was required to make (Silfani Count I), and
because of his misclassification as an independent
contractor, see Id. ¶¶ 22-38, his wages
were effectively withheld in violation of the Massachusetts
Wage Act (Silfani Count II). J.B. Hunt promptly removed
the Silfani Complaint to this court. At the joint
request of the parties, the court stayed the Silfani
matter pending the outcome of the Remington and
Schwann appeals. See Silfani Dkt. # 12. On
appeal, the First Circuit agreed with this court that the
FAAAA preempted the second prong of section 148B, see
Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d
429, 437-440 (1st Cir. 2016), but disagreed with the ruling
of non-severability. Id. at 442 (“We therefore
think that the legislature's plain aim in enacting this
statute favors two-thirds of this loaf over no loaf at all as
applied to motor carriers with respect to the transportation
of property.”). The First Circuit also reversed this
court's holding that the FAAAA preempted prongs one and
three of section 148B, not on substantive grounds, but
“based on FedEx's decision not to advance any
argument that Prongs 1 and 3 were preempted by the
FAAAA.” Remington v. J.B. Hunt Transp., No.
15-1252 (1st Cir. Feb. 22, 2016).
remand, the court consolidated the Remington and
Silfani cases for pretrial
proceedings. In May of 2016, J.B. Hunt filed a renewed
motion to dismiss the Complaints. The court heard oral
argument on the motion on August 31, 2016.
as it is in the Supremacy Clause of the United States
Constitution, federal preemption is a “pure question of
law.” United States v. Rhode Island Insurers'
Insolvency Fund, 80 F.3d 616, 619 (1st Cir. 1996).
Noting the three separate categories of preemption - express,
field, and conflict, see SPGGC, LLC v. Ayotte, 488
F.3d 525, 530-531 (1st Cir. 2007) - J.B. Hunt argues that
plaintiffs' claims are preempted not only because they
conflict with the federal Truth-in-Leasing regulations, 49
C.F.R. Part 376, but also because the Truth-in-Leasing
regulations occupy the entire field of owner-operator driver
compensation. Conflict preemption arises “when
compliance with both state and federal statutes and
regulations is a physical impossibility, or when compliance
with the state statute would frustrate the purposes of the
federal scheme.” Id. at 531. Field preemption
occurs when “Congress  enact[s] a regulatory scheme
‘so pervasive as to make reasonable the inference that
Congress left no room for the States to supplement
it.'” Id. at 530 (citation omitted).
“Federal statutes and the regulations adopted
thereunder have equal preemptive effect.” Id.
court agrees with J.B. Hunt that the Truth-in-Leasing
regulations preempt Remington's allegations of improper
deductions insofar as these deductions constitute permitted
cost-sharing under a compliant lease. The Truth-in-Leasing
regulations govern “[t]he leasing of equipment with
which to perform transportation regulated by the Secretary
[of Transportation].” 49 C.F.R. § 376.1. The
regulations mandate that when “[an] authorized carrier
 perform[s] authorized transportation in equipment it does
not own, ” “[t]here shall be a written lease
granting the use of the equipment.” 49 C.F.R. §
376.12 sets out the requirements of a compliant written
The lease shall provide that the authorized carrier lessee
shall have exclusive possession, control, and use of the
equipment for the duration of the lease. The lease shall
further provide that the authorized carrier lessee shall
assume complete responsibility for the operation of the
equipment for the duration of the lease.
49 C.F.R. § 376.12(c)(1). With respect to operational
costs, “[t]he lease shall clearly specify the
responsibility of each party with respect to the cost of
fuel, fuel taxes, empty mileage, permits of all types, tolls,
ferries, detention and accessorial services, base plates and
licenses, and any unused portions of such items.” 49
C.F.R. § 376.12(e). Although the lessee is required to
obtain certain types of insurance for its operations, 49
C.F.R. § 376.12(j)(1),  the regulations leave it to the
parties to negotiate the responsibility for other types of
regulations further permit the lessee to make deductions from
the lessor's compensation for cargo or property damage.
The lease shall clearly specify the conditions under which
deductions for cargo or property damage may be made from the
lessor's settlements. The lease shall further specify
that the authorized carrier must provide the lessor with a
written explanation and itemization of any deductions for
cargo or property damage made from any compensation of money
owed to the lessor. The written ...