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 FOR JUDGMENT ON THE PLEADINGS
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
the latest chapter in a preemption saga. Defendant J.B. Hunt
contends that the Federal Aviation Administration
Authorization Act (FAAAA), 49 U.S.C. § 14501 et seq.,
and the Employee Retirement Income Security Act (ERISA), 29
U.S.C. § 1001 et seq., preempt what remains of
plaintiffs' state law employee misclassification claims.
factual allegations of the two class-action Complaints are
set out in this court's decision on defendants'
consolidated motion to dismiss, see Remington v. J.B.
Hunt Transp., Inc. (Remington III), 2016 WL
4975194 (D. Mass. Sept. 16, 2016), and will be repeated here
only to the extent necessary. Plaintiffs are owner-operator
drivers for J.B. Hunt Transport Inc., a freight and package
delivery service. Plaintiffs allege that while their job
descriptions and work requirements essentially replicate
those of non-owner drivers hired by J.B. Hunt, they are not
given the same employment benefits. Plaintiffs base their
claims on the Massachusetts Independent Contractor Statute,
Mass. Gen. Laws ch. 149, § 148B, and the Massachusetts
Wage Act, Mass. Gen. Laws ch. 149, §§ 148, 150.
They also press an equitable claim for unjust
first motion to dismiss, J.B. Hunt argued that the
FAAAA's express preemption of state laws “related
to a price, route, or service of any motor carrier, ”
49 U.S.C. § 14501(c)(1), usurps prong two of the
Independent Contractor Statute. J.B. Hunt further asserted that
because prong two was not severable, the Statute as a whole
was preempted. This court agreed. Remington v. J.B. Hunt
Transp., Inc. (Remington I), 2015 WL 501884, at
*1-2 (D. Mass. Feb. 5, 2015); Schwann v. Fedex Ground
Package Sys., Inc., 2015 WL 501512, at *1-2 (D. Mass.
Feb. 5, 2015). In addition, this court ruled that the
FAAAA preempted the Statute as a whole because
“enforcing prongs one and three of section 148B against
motor carriers would end the same - the ‘price,
route[s], [and] services' offered by motor carriers would
be impacted by forbidding the preferred business
model.” Remington I, 2015 WL 501884, at *2.
appeal, the First Circuit affirmed this court's holding
with respect to prong two of the Statute. See Schwann v.
FedEx Ground Package Sys., Inc., 813 F.3d 429,
435-440 (1st Cir. 2016). However, the Court of Appeals went
on to hold that, contrary to this court's opinion, prong
two is severable. Id. at 440-441. The First Circuit
also reversed this court's decision with respect to
prongs one and three of the Statute because defendants had
not raised the issue in the district court or on appeal.
Id. at 441; Remington v. J.B. Hunt Transp.
(Remington II), No. 15-1252 (1st Cir. Feb. 22,
the cases were remanded, J.B. Hunt filed a consolidated
renewed motion to dismiss in Remington and in the
later-filed Silfani,  arguing that the
misclassification claims were independently preempted by the
federal Truth-in-Leasing Regulations, 49 C.F.R. § 376.
This court held that plaintiffs' claims were preempted
insofar as they were based on contractually allocated
cost-sharing, Remington III, 2016 WL 4975194, at
*3-5, but that claims based on other forms of unregulated
compensation and benefits were not so preempted,
id., at *5-6. J.B. Hunt now, for the first time,
contends that the FAAAA preempts prongs one and three of the
Independent Contractor Statute. J.B. Hunt also maintains that
ERISA preempts the recovery of employee benefits administered
by ERISA-governed plans.
assert, as a threshold matter, that because the First Circuit
reversed this court's FAAAA preemption ruling as to
prongs one and three on the prior appeal, the law of the case
doctrine bars J.B. Hunt from attempting to revisit the issue
on remand. See United States v. Matthews,
643 F.3d 9, 12-13 (1st Cir. 2011) (“In other words, the
doctrine bars a party from resurrecting issues that either
were, or could have been, decided on an earlier
appeal.”). J.B. Hunt counters that because the First
Circuit did not substantively decide the issue, it remains
fair game. See Biggins v. Hazen Paper Co., 111 F.3d
205, 209 (1st Cir. 1997) (“Broadly speaking, mandates
require respect for what the higher court decided, not for
what it did not decide.”).
careful review of the prior proceedings, the court agrees
with plaintiffs that the doorway to further FAAAA preemption
is now permanently closed. In dismissing the Complaint in
Remington I, the court ruled that the Independent
Contractor Statute as a whole was preempted as applied to
motor carriers both because preempted prong two was not
severable from prongs one or three, and because prongs one
and three were independently preempted. See Remington
I, 2015 WL 501884, at *2. On appeal,
plaintiffs-appellants advanced arguments challenging both of
these conclusions. See Schwann, 813 F.3d at 441.
Defendant-appellee, however, elected not to defend the
independent preemption of prongs one and three. Id.,
Remington II, No. 15-1252. Having kept silent when
the issue was squarely presented on appeal, Remington let go
its opportunity and cannot now claim buyer's remorse.
See United States v. Rodriguez, 311 F.3d 435, 437
(1st Cir. 2002) (a right is waived if intentionally
relinquished or abandoned, and forfeited if not timely
asserted); see also Remington II, No. 15-1252
(permitting the district court, on remand, to “address
for the first time” other Wage Act preemption arguments
raised by J.B. Hunt).
Hunt is on firmer footing, however, with respect to its ERISA
preemption contention. ERISA “supersede[s] any and all
State laws insofar as they . . . relate to any [qualified]
employee benefit plan.” 29 U.S.C. § 1144(a). The
ERISA preemption analysis proceeds in in two steps:
“(1) whether the plan at issue is an ‘employee
benefit plan' and (2) whether the cause of action
‘relates to' this employee benefit plan.”
McMahon v. Digitial Equip. Corp., 162 F.3d
28, 36 (1st Cir. 1998). The parties do not dispute under step
one that plaintiffs seek to recover benefits that they would
have received had they been classified as employees under
parties contest whether, at step two, plaintiffs' Wage
Act claims are “related to” the ERISA plans. J.B.
Hunt argues that its ERISA-administered benefit plans are
integral to plaintiffs' claims because the court
necessarily has to construe and interpret the plans in order
to adjudicate plaintiffs' alleged eligibility and to
determine the value of any benefits they would have received
under the plans. For their part, plaintiffs characterize this
connection as “incidental.” Opp'n at 20.
See Boston Children's Heart Found., Inc. v.
Nadal-Ginard, 73 F.3d 429, 439 (1st Cir. 1996).
Plaintiffs maintain that they are not seeking to recover
benefits under the plans, and that the Wage Act claims are
not dependent on the existence of an ERISA plan. Rather, the
value of any lost benefits is simply a component of their
damages writ large. More to the point, according to
plaintiffs, their Wage Law claims do not impede any of
ERISA's enforcement interest - as they are not plan
participants, plaintiffs concede they have no standing to
assert an ERISA claim. Finally, plaintiffs assert that any
preclusion of the Wage Act benefits claims would leave them
essentially without a remedy for their wrongs.
plaintiffs accurately note that their Wage Act claims do not
intrude on the internal administration of an ERISA plan, that
is not the test of ERISA preemption. ERISA preemption is
“deliberately expansive.” Ingersoll-Rand Co.
v. McClendon, 498 U.S. 133, 138 (1990) (quoting
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46
(1987)). A state law may be preempted as related to an ERISA
plan “even if the law is not specifically designed to
affect such plans, or the effect is only indirect and even if
the law is consistent with ERISA's substantive
requirements.” District of Columbia v. Great
Washington Bd. of Trade, 506 U.S. 125, 130 (1992)
(internal quotation marks and citations omitted); see
also Rosario-Cordero v. Crowley Towing & Transp.
Co., 46 F.3d 120, 123 (1st Cir. 1995). A
“forbidden connection” between a state law and
ERISA is determined by “the objectives of the ERISA
statute as a guide to the scope of the state law that
Congress understood would survive, as well as to the nature
of the effect of the state law on ERISA plans.”
California Div. of Labor Standards Enforcement v.
Dillingham Constr., 519 U.S. 316, 325 (1997) (internal
quotation marks and citations omitted). “ERISA's
objectives include providing a uniform national
administration of ERISA plans and avoiding inconsistent state
regulation of such plans.” Zipperer v. Raytheon
Co., 493 F.3d 50, 53 (1st Cir. 2007) (internal quotation
Three categories of state regulation that have been
identified as conflicting with these objectives are: 1) those
that mandate employee benefit structures or their
administration; 2) those that bind plan administrators to a
particular choice; and 3) causes of action that provide
alternative enforcement mechanisms to ERISA's own
claims, whatever the basis of the underlying cause of action,
can be distilled as non-participants seeking to recover the
value of benefits they would have received as ERISA plan
participants. The First Circuit has squarely held ...