a independent contractor model and mr deming along with hundreds of other people in massachusetts sign operating agreements with fedex and they operate agreements purported to be independent contractors rather employees after the changes in the law are chapter one forty eight section one for nicer she won forty two thousand and four massachusetts had what is called probably the strictest independent contractor test in the country in his complaint which was reading your complaint as only an exclusively pleading a theory that required you to be an employee and not as alternatively played in any of the grounds right or wrong why itself still contained enough allegations sufficient allegations that if he was to be determined to be not an employee that his allegations were still sufficient enough to raise a claim on the ninety three i believe the complaint talked about given the judge's decision that the overall gist of the complaint was focused on one forty three he didn't specifically come out and say well the allegations themselves are insufficient on the one three but because you're arguing more towards over time he had to pay money for these had to be approved by fax and then when his contract was terminated by fed ex they took those routes away from him they didn't compensate them form they gave him two other drivers those were the gist of his n allegations that in the business contacts they could of there were sufficient allegations at least at the motion to dismiss now granted later on and summary judgment says after a factual record is developed those claim but that wasn't a decision at that time eventually after summary judgment the judge district court did rule that he was in a business to business relationship with fed ex and therefore he couldn't bring in one forty eight b claim so had to be approved by fredericks he complained about some packages being diverted from his service area the whole program is set up on package delivery in payment for per package and the allegations in the claim was  he wants them complained about packed as being diverted from his proprietary service area and he alleged that he was summarily walked off the property later on in his rooms were taken from him and he wasn't compensated for that but let's be fair the district court structure your complaint is you alleged facts right and then you say these facts all add up to the fact that my client is that the plaintiff is a employee of the defendant no matter what they are and then you have a series of course action all right and those was an action of very brief because they won't refer back to one incorporate the facts and just record based on the complaint and i did have to sort out the facts which i believe supported at the time that he was an employee of the massachusetts law and a case in that and the allegations do go to that as well not specifically move on that issue that it was you know there was insufficient allegations they merely moved on the on the correct assumption that if he's an employee camper united three a quick breath time for action to this day is always said he wasn't an employee opposition and again they don't mention ninety three and it's simply on other issues so i think it was a judgement call by the court i'm arguing that it was an error at that early stage for him to dismiss ninety three acres given the fact that it wasn't at that as pleading not clued in you going down both route and let's say we agree with that that it then told that the district court judge reads it differently and you intended it to then perhaps someone else may read it and actually throws out  coin more or less to respond take based on what i'm having trouble with when i think of that scenario the very next thing that i see in my mind happening is you saying well judge it was supposed to be alternative i see you're not reading it that way i think you're wrong but i'm going to move to amend now at the beginning of this case and what happened trouble understanding why you didn't why i might my interpretation of the jury's decision is that he believed that you know the case was going to fall on whether he was employed it was leaning towards one forty and therefore an early signal to me was that he was thinking that the case was going to be decided on whether he was strictly an employee and based on year after the district court's decision on the motion to dismiss within which to seek leave to amend and he didn't take that opportunity as this court has often said this court does not sit to review amendments that are never presented t pled the alternative theory and as i understand it when you read it and move to dismiss you did not move to dishonest on the grounds that it was as a natural law inconsistent with that because the complaint alleges that he was an employee that this ninety three claim could not stand we have that is the argument that we made and what i understand my friend to be saying here is that we didn't argue that for any other reason essentially read the complaints of conclusory allegations were there and we look at the factual of them and if you delete from this complaint the conclusion that he was an employee the legal conclusion that is then isn't the complaint it pleading both ninety three and anon ninety three a claim and they have allegations for example buying the truck how he acquired the business how your client was character zing him that would support that or no for two reasons your honor number one it's the plaintiff's burden to allege among other things to state a claim or ninety three that he interacted with the defendant in trade or commerce if the holding of manning is that that is that language is not ordinary english it is used in a special way to exclude among other things employer employee i know that but we're not we're not doing some kind of technical employee and respectfully your honor your question suggests that the allegations show that there is a commercial relationship here but respectfully that's not enough under chapter ninety three and we know for we know indeed and this is well i think you would have had to allege that he had a business to business relationship with fed ex ground that was not the kind of exclusive relationship that he was alleging he said he alleges in the complaint at page fifteen of the appendix for example that the nature of the relationship between phenix ground and its contractors is that they are prevented from offering their services to the general public and the test under ninety three that is where their services are being offered generally by a person for sale to the public in a business transaction that's the that's a quote from manning versus aquaman so he it is true that our position is that he pleaded himself out of court but it's not just by using the word employee more than half a dozen times as he does it's also the indicia that he gives factual and issue about the nature of the relationship between fed ex ground and its contractors that establish that  taking his allegations as true which of course that's grounded not with the just reporters required to do that he was he had the kind of relationship with fed ex ground that massachusetts would regard as an interest in her prize do you like joint ventures like partners in a partnership business is working together to work toward a common aim they are not supposed to sue each other in chapter ninety three so that is why it's not just his invocation of the word employee that matters it's his failure to plead the element of trader commerce now and if judge a tool misread his complaint and he wanted to sue or that deficiency again he had ample opportunity to do so now and he seems to proceed under the assumption that if you lost on the misclassification and wage claims then kind of if so facto automatically the other side of the coin is he gets to proceed under chapter ninety three day and that's just not so for the reason i alluded to before which is that even some independent contractors may not proceed under chapter ninety three a that's the holding of the benoit case from massachusetts courts and in particular the reason that he did not prevail on his misclassification and wage act claims was that he failed to establish that he was an individual that's the key term under chapter under section one forty eight b for purposes of the misclassification i wish to add shoes but that has nothing to do with whether he's an employee and even a common law sense or whether he's acting and interacting in trade or commerce with fed ex ground i'll just say a word about why we think that ninety three a claim doesn't state a claim in any event this court could affirm on that alternative ground if it shows  in a nutshell it's because this is a claim for garden variety breach of contract maybe it rises to the level of breach of the blood covenant of good faith and fair dealing but is this court has said you need something more to sue hundred ninety complaints that he had made but he doesn't establish it doesn't leave any plausible facts to show either way that he was not subject to terminations because of his own conduct in other words that fed ex ground was not perfectly justified within the terms of the operating agreement in terminating him and indeed he goes so far as to allege that fed ex ground has the sole authority under the agreement to terminate contractors for cause he doesn't allege that he was in conformity with the contract that was necessary even to state a breach  contract claim the district court threw out his breach of contract claim on that ground he didn't he didn't appeal that we think it follows that he can state a ninety three claim with necessarily requires a higher version is just a conclusion reallocation of retaliation not supported by any