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17-P-82 Appeals Court

SUZANNE E. CAREY, personal representative,1 vs. GATEHOUSE MEDIA 

MASSACHUSETTS I, INC.

No. 17-P-82.

Norfolk. September 14, 2017. - February 27, 2018.

Present: Green, Sullivan, & Sacks, JJ.

Independent Contractor Act. Newspaper. Carrier. Federal 

Preemption. Statute, Federal preemption. Waiver.

Practice, Civil, Summary judgment, Waiver.

Civil action commenced in the Superior Court Department on 

September 22, 2011. 

Motions for summary judgment were heard by Angel Kelley 

Brown, J.; the entry of separate and final judgment was ordered 

by her; and a motion for postjudgment relief was heard by her.

Mark W. Batten for the defendant.

James W. Simpson, Jr., for the plaintiff.

Peter J. Caruso & Robert J. Ambrogi, for Massachusetts 

Newspaper Publishers Association, amicus curiae, submitted a 

brief.

 

1 Of the estate of David King, who passed away while the 

appeal was pending. King had filed suit individually and on 

behalf of other similarly situated individuals.
2

SACKS, J. Defendant GateHouse Media Massachusetts I, Inc.

(GateHouse), publisher of the Patriot Ledger newspaper, appeals

from a separate and final judgment under Mass.R.Civ.P. 54(b), 

365 Mass. 821 (1974), declaring that David King, who had 

delivered the Patriot Ledger by automobile to some of its 

subscribers, was, under G. L. c. 149, § 148B (§ 148B), 

GateHouse's employee rather than an independent contractor. 

Gatehouse also appeals from the denial of its motion for relief 

from the rule 54(b) judgment, which asserted that the relevant 

portion of § 148B is preempted by the Federal Aviation 

Administration Authorization Act of 1994 (FAAAA), codified at 49 

U.S.C. § 14501(c)(1). We affirm.

2

Background. We recount certain undisputed material facts 

from the summary judgment record, reserving for later discussion

the details of GateHouse's contract with King. GateHouse, a 

subsidiary of New York-based GateHouse Media, "publishes and 

distributes" a variety of daily and weekly newspapers within 

Massachusetts. Gatehouse describes itself as a publisher and 

distributor of publications in its "Wholesale Agreements" with 

newspaper delivery drivers such as King. GateHouse employs a 

sales and advertising department, which works to increase 

circulation and advertising revenue. Among GateHouse's 

 

2 We acknowledge the amicus brief submitted by the 

Massachusetts Newspaper Publishers Association.
3

newspapers is the Patriot Ledger, published on all five weekday 

afternoons and on Saturday mornings.

GateHouse distributes the Patriot Ledger out of a 

distribution center in Braintree, employing supervisors, 

district managers, distribution managers, and others to manage 

that process. GateHouse has three main distribution methods. 

First, to distribute the newspaper to residential and business 

subscribers, GateHouse enters into agreements with individual 

carriers,

3 whom it classifies as independent contractors. The 

carriers are required to buy copies of the newspaper from 

GateHouse at wholesale rates, for resale and distribution within 

delivery areas designated by GateHouse. Second, GateHouse hires 

unionized employees to distribute bulk quantities of the 

newspaper to various types of stores, where they are resold at 

retail. Third, GateHouse reaches some customers through online 

publishing.

King became a carrier for GateHouse in 2009, using his own 

automobile to deliver up to 250 copies of the Patriot Ledger,

six days per week, in the Weymouth area. His contract was 

terminated in 2011, apparently by GateHouse, for reasons not 

stated in the record.

 

3 In this opinion we use the terms "carriers" and "drivers" 

interchangeably; although not material for present purposes, we 

note that some carriers cover their delivery areas on foot.
4

King then filed this action in Superior Court, asserting 

that GateHouse had misclassified him as an independent 

contractor rather than an employee under § 148B. He also 

asserted claims -- dependent on his being an employee under 

§ 148B4 -- that GateHouse had deducted unauthorized charges and 

fees from its payments to him, in violation of G. L. c. 149, 

§§ 148 and 150; failed to pay him a minimum wage, in violation 

of G. L. c. 151, § 1; and violated his rights under the tipsharing statute, G. L. c. 149, § 152A. He also asserted an 

unjust enrichment claim. King sought to represent, and later 

obtained certification of, a class consisting of all individuals 

who had signed a written contract to deliver the Patriot Ledger 

and had provided delivery services under those contracts, during 

the "class period."

5

On cross motions for summary judgment limited to the 

misclassification claim, the judge ruled in July, 2014, that 

under § 148B, King was an employee, rather than an independent 

contractor. She based her ruling on GateHouse's inability to 

meet its burden of proving that the service furnished by King 

was "performed outside the usual course of the business of the 

 

4 Section 148B determines employee status "[f]or the purpose 

of this chapter [149] and chapter 151." G. L. c. 149, 

§ 148B(a), as appearing in St. 2004, c. 193, § 26.

5 That period is not specified in the record materials 

before us.
5

employer," as is required under prong two of § 148B's threeprong test. See Somers v. Converged Access, Inc., 454 Mass.

582, 588-589 (2009), citing Athol Daily News v. Board of Review 

of the Div. of Employment & Training, 439 Mass. 171, 175 (2003)

(Athol Daily News), and its interpretation of "nearly identical 

language in G. L. c. 151A, § 2." The judge therefore did not 

decide whether GateHouse could meet its burden under prongs one 

and three.

6 After an additional sixteen months of motion 

practice over individual damages, prejudgment interest, and 

class certification, the parties moved for, and in November, 

2015, the judge ordered, entry of a separate and final judgment, 

under Mass.R.Civ.P. 54(b), on the misclassification claim.

GateHouse appealed.

After the appeal was docketed in this court in August, 

2016, GateHouse sought and obtained a stay of appellate 

proceedings and leave to file a motion for relief from judgment 

in the trial court. The basis for GateHouse's motion was that 

two recent Federal appellate decisions had held prong two of 

§ 148B to be preempted, as to certain delivery drivers, by a 

 

6 The judge observed as to the first prong that the question 

of GateHouse's "control" over its drivers was "a close call." 

As to the third prong, the judge noted King's failure to contest 

GateHouse's contention that he was customarily engaged in an 

independently established trade or business and that King and 

other drivers also delivered newspapers other than the Patriot 

Ledger, but she reached no conclusion as to that prong.
6

section of the FAAAA, codified at 49 U.S.C. § 14501(c)(1), 

concerning motor carriers' transportation of property. See

Schwann v. FedEx Ground Packaging Sys., Inc., 813 F.3d 429 (1st 

Cir. 2016) (Schwann); Massachusetts Delivery Assn. v. Healey, 

821 F.3d 187 (1st Cir. 2016) (Massachusetts Delivery Assn.). 

GateHouse asked that the rule 54(b) judgment be vacated so that 

it could assert a similar preemption defense. In December, 

2016, the judge denied the motion on the ground, among others, 

that GateHouse had waived the issue by not asserting the 

preemption defense in its answer or summary judgment motion.

7 

GateHouse's appeal of this ruling was consolidated with its 

appeal of the rule 54(b) judgment on the misclassification 

issue.

Discussion. 1. Usual course of business. As the purpose 

and operation of § 148B's three prong test8 have been recently 

 

7 Apparently before receiving that ruling, GateHouse 

notified the judge that the Supreme Judicial Court had just 

reached a similar conclusion regarding FAAAA preemption of 

§ 148B's prong two, in Chambers v. RDI Logistics, Inc., 476 

Mass. 95 (2016).

8 "[A]n individual performing any services, except as 

authorized under this chapter, shall be considered to be an 

employee . . . unless: --

"(1) the individual is free from control and direction 

in connection with the performance of the service, both 

under his contract for the performance of service and in 

fact; and
7

and thoroughly reviewed in Sebago v. Boston Cab Dispatch, Inc., 

471 Mass. 321 (2015) (Sebago), and Chambers v. RDI Logistics, 

Inc., 476 Mass. 95 (2016) (Chambers), we proceed directly to the 

question whether GateHouse has proven under prong two -- as it 

must to defeat King's claim of employee status -- that King 

performed newspaper delivery services "outside the usual course 

of the business" of GateHouse. G. L. c. 149, § 148B(a)(2), as 

appearing in St. 2004, c. 193, § 26. No single test controls 

this inquiry, so we consider several factors previously held 

relevant.

a. Business's self-description. Essentially the same 

question arose in Athol Daily News, under the usual course of 

business portion of the closely-related three-prong employment 

test of G. L. c. 151A, § 2. 439 Mass. at 175, 178-179. In 

addressing that question, albeit briefly, the Supreme Judicial 

Court observed that the manner in which a business defines 

itself is relevant to determining its usual course of business. 

Id. at 179. "In light of the fact that the News itself defines 

 

"(2) the service is performed outside the usual course 

of the business of the employer; and,

"(3) the individual is customarily engaged in an 

independently established trade, occupation, profession or 

business of the same nature as that involved in the service 

performed."

G. L. c. 149, § 148B(a), as appearing in St. 2004, c. 193, § 26.
8

its business as 'publishing and distributing' a daily newspaper, 

we agree that the carriers' services are performed in 'the usual 

course of [the News's] business.'" Ibid. See Sebago, 471 Mass.

at 333 (stating, in a § 148B case, "We have recognized that a 

purported employer's own definition of its business is 

indicative of the usual course of that business"); id. at 335 

(analyzing how various defendant businesses advertised and 

otherwise held themselves out).

9

Gatehouse describes its business as "[n]ewspaper 

[p]ublishing" in its annual corporate filing with the Secretary 

of the Commonwealth, and describes itself as a publisher and 

distributor in its agreements with delivery drivers. This 

description is notable because, even aside from its use of the 

term "distribute," GateHouse acknowledges that it is a 

"publisher," and to "publish" means, among other things, "to 

place before the public (as through a mass medium); 

DISSEMINATE." Webster's Third New International Dictionary 1837

(2002). A newspaper publisher not only creates newspaper 

 

9 Of course, this approach must have its limits. A business 

cannot alter the substance of its usual course of business 

merely by careful (or careless) self-labeling in its dealings 

with contractors, employees, customers, or the public. Cf. 

Sebago, 471 Mass. at 330 (referring to hypothetical business 

owners "creating a false dichotomy between the administrative 

and operational aspects of their business"); id. at 335 (wording 

of defendant entities' advertising, although helpful to 

plaintiffs' claim of employee status, did "not override the 

realities of the [entities'] actual business operations").
9

content but also disseminates it to the public in physical or 

digital form.

Indeed, an integral part of "publishing" a daily newspaper 

is making it immediately available to customers and potential 

customers, because in twenty-four hours or less much of its 

content will be largely obsolete and of limited, if any,

interest to most readers. It is not too much to say that 

immediate availability to customers is a part of the product 

GateHouse sells. That GateHouse achieves such immediate 

availability through a variety of means -- including direct 

carrier delivery to paper subscribers, bulk distribution by 

GateHouse employees to stores for resale to the stores' walk-in 

customers, and via the Internet -- does not make carrier 

delivery any less a part of GateHouse's business.

10 Rather, it 

reinforces the point that, one way or another, GateHouse goes to 

considerable lengths, six days per week, to put the Patriot 

Ledger quickly into the hands (and onto the screens) of 

readers.

11

 

10 The summary judgment record does not establish what 

proportion of the Patriot Ledger's circulation is achieved 

through each of these methods. The most the record shows is 

that "GateHouse's Massachusetts newspapers reach 1.4 million 

print readers and 1.2 million monthly unique [online] visitors."

11 We refer to "customers" and "readers" interchangeably, 

while noting that in addition to "customers" who purchase a

paper or online subscription or a copy at a store, GateHouse 

benefits from having nonpaying "readers," to the extent that it 
10

Thus, the record shows that GateHouse has a "posted promise 

in the newspaper to the subscriber" regarding the time by which 

the newspaper will be delivered, and GateHouse mandated that

carriers such as King deliver the newspaper to subscribers by 

5 P.M. on weekdays and by 8 A.M. on Saturdays. The agreement 

required carriers to deliver the newspapers in a dry, readable 

condition and to the satisfaction of each subscriber. It 

further provided that if a carrier could not deliver his or her 

newspapers on a given day, the carrier was required to engage 

and train a substitute at his or her own expense. If the 

carrier failed to do so, and GateHouse had to distribute any 

copy of the newspaper, GateHouse could charge the carrier 

"liquidated damages" of $2 per weekday copy and $4 per Saturday 

copy.

12 The agreement did not impose charges for late (as 

opposed to missed) deliveries, but if a carrier was chronically 

late in completing his or her route, the Patriot Ledger's home 

delivery manager stated that GateHouse could consider 

terminating the agreement with that carrier.

 

can document them (e.g., through tracking unique online visits). 

The record shows that GateHouse markets itself to potential 

advertisers based on the number of people that its publications 

"reach," through both paid circulation and on the Internet.

12 GateHouse asserted that there was no evidence it had 

actually imposed such charges, but that any dispute over that 

issue was immaterial for summary judgment purposes.
11

In sum, GateHouse's self-description as a newspaper 

publisher and distributor, and the manner in which it held

itself out to the public and its drivers, support the conclusion 

that the drivers performed services in the usual course of 

GateHouse's business.

b. Necessary vs. incidental services. "Another factor [in 

the usual course of business inquiry] is 'whether the service 

the individual is performing is necessary to the business of the 

employing unit or merely incidental.'" Sebago, 471 Mass. at 333

(quotation omitted). As to this factor, we view it as 

significant that the Athol Daily News court, in concluding that 

newspaper carriers furnished services in the usual course of a 

newspaper publisher's business, gave three other illustrations 

of services within the usual course of an employer's business:

art instructor services performed on a "regular or continuous" 

basis within an art museum, musicians performing as a "usual and 

customary" activity at a "beer bar," and an organist playing 

music as a "usual part of" a funeral home's business. Athol 

Daily News, 439 Mass. at 179.

13 These illustrations indicate 

that a service need not be the sole, principal, or core product 

 

13 The court drew these illustrations, respectively, from 

Mattatuck Museum-Mattatuck Historical Soc. v. Administrator, 

Unemployment Compensation Act, 238 Conn. 273, 280 (1996); 

Bigfoot's, Inc. v. Board of Review of the Industrial Commn. of 

Utah, 710 P.2d 180, 181 (Utah 1985); and Yurs v. Director of 

Labor, 94 Ill. App. 2d 96, 104 (1968).
12

that a business offers its customers, or inherently essential to 

the economic survival of that type of business, in order to be 

furnished in the usual course of that business. And the 

delivery service that GateHouse's drivers furnished to its 

Patriot Ledger subscribers appears, if anything, to be more 

necessary than incidental to GateHouse's business.

The Sebago decision further illuminated the distinction 

between necessary and incidental services by comparing two 

Illinois decisions, one involving taxi drivers using leased 

medallions and the other involving drivers of leased limousines. 

Sebago, 471 Mass. at 333-334, citing Parks Cab Co. v. Annunzio, 

412 Ill. 549 (1952) (Parks Cab Co.), and O'Hare-Midway Limousine 

Serv., Inc. v. Baker, 232 Ill. App. 3d 108 (1992) (O'HareMidway). In Parks Cab Co., "taxicab drivers paid flat fees to 

lease taxicab medallions"; the medallion owners were "not 

concerned with the operation of the cabs or the results of their 

operation" and those owners' "leasing business [was] not 

directly dependent on the success of the drivers' endeavors." 

Sebago, 471 Mass. at 333-334. Indeed, "the drivers rendered no 

services for" the medallion-leasing businesses. Id. at 333 

(quotation omitted). In O'Hare-Midway, in contrast, the 

limousine drivers "picked up customers who had 'booked' 

limousine services with [the employer]" and "paid a percentage 

of their commissions to [the employer], thus establishing a 
13

financial interdependence, or a direct financial stake with the 

limousine company." Sebago, 471 Mass. at 334 (quotation 

omitted). The limousine drivers, "although they did share a 

percentage of the commissions, were performing services for 

O'Hare-Midway (driving customers booked by the limousine 

service) and not for themselves." O'Hare-Midway, 232 Ill. App.

3d at 112.

GateHouse's delivery drivers are, in several respects, more 

like the limousine drivers in O'Hare-Midway than the taxi 

drivers in Parks Cab Co. First, GateHouse takes an active role 

in securing subscribers for its drivers to service, and for that 

purpose it deals directly with potential customers. GateHouse 

employs staff in a sales department that works to increase 

circulation, as well as district managers who work to retain 

existing subscribers and to obtain new subscribers in particular 

territories. Individuals wishing to subscribe to the Patriot 

Ledger may telephone its call center or send back a card that 

they were mailed (or had obtained in a store-bought copy) as 

part of a subscription solicitation. Thus, like the limousine 

service in O'Hare-Midway, Gatehouse books customers for its 

drivers.

Although individuals may also arrange subscriptions by 

dealing directly with a delivery driver, GateHouse is hardly 

indifferent to such dealings (as were the taxi medallion owners 
14

in Parks Cab Co.), but instead, under the agreement with its 

drivers, actively encourages them. That agreement requires 

GateHouse to make free copies of the newspaper available to 

drivers to "use as samples to drum up more business," and it 

pays drivers a bounty for each subscription they obtain (in 

King's case, $20 for an eight-week subscription). If GateHouse 

acquires a new subscriber within a driver's delivery area, the 

agreement requires the driver to service that subscriber.

Second, unlike the taxi drivers in Parks Cab Co., the 

delivery drivers pay no flat fee to GateHouse, but instead pay 

GateHouse a wholesale price for each Patriot Ledger newspaper 

they purchase from GateHouse and deliver to a subscriber. The 

subscriber pays a retail price,

14 plus an optional tip, and the 

price difference plus any tip is the driver's net profit (or 

compensation). In substance, like the limousine drivers in 

O'Hare-Midway, the drivers here pay GateHouse a portion of the 

revenue they receive from each customer; the more customers they 

have, the more they pay GateHouse. Moreover, it is only "in 

some cases" that the subscriber pays the driver; other 

subscribers pay the retail prices plus tips directly to 

 

14 The agreement assumes that the retail price will be 

GateHouse's "suggested resale price," elsewhere termed by 

Gatehouse its "published retail rate." The agreement leaves 

carriers free to charge less (or more) than that price, although 

the parties did not agree on whether any carrier had ever done 

so. That dispute is not material for present purposes.
15

GateHouse.

15 And subscribers may provide specific delivery 

instructions, and complaints about deliveries, directly to 

GateHouse, which maintains systems for conveying this 

information to the drivers.

16

In sum, GateHouse is not merely a wholesaler that takes 

little interest in whether and how its drivers succeed in 

reselling newspapers at retail to customers. Rather, GateHouse 

deals directly with potential customers in selling subscriptions 

that include the drivers' delivery services; GateHouse assigns 

subscribers to delivery territories, deals directly with 

subscribers in accepting payments, specific delivery 

instructions, and delivery complaints and conveys those 

instructions and complaints to the drivers; and GateHouse 

maintains contractual disincentives to poor delivery service, as 

well as contractual incentives for expanding delivery service to 

new customers.

Thus it can fairly be said that the drivers, like the 

limousine drivers in O'Hare-Midway, perform services on behalf 

of GateHouse, not merely for their own account. GateHouse, 

unlike the taxi medallion owners in Parks Cab Co., is very much 

 

15 GateHouse then applies these amounts as a credit against 

the wholesale price charged to the driver, and it pays any 

positive balance to the driver.

16 Such information may alternatively be conveyed directly 

from subscriber to driver.
16

"concerned with the results of the [drivers'] operations"; 

GateHouse's "business is . . . directly dependent on the success 

of the drivers' endeavors." Sebago, 471 Mass. at 334. Notably, 

many features of the publisher-driver-customer relationship set 

forth above were also present in Athol Daily News, see 439 Mass.

at 172-174, and the Sebago court characterized the Athol Daily 

News case as one where the owner's business was "directly 

dependent on the drivers' services." Sebago, 471 Mass. at 335.

c. GateHouse's arguments. While acknowledging that it 

"needs to get its product into the hands of consumers," 

GateHouse asserts that the same is true of businesses like 

consumer-electronics manufacturers and online retailers. 

GateHouse asserts that drivers for the delivery services used by 

those businesses, such as private delivery companies or the 

United States Postal Service, cannot be considered those 

businesses' employees, and thus that newspaper delivery drivers 

cannot be considered GateHouse employees. But GateHouse has not 

offered any evidence as to those other businesses' actual 

operations, including their relationships, if any, with delivery 

drivers, or the centrality of immediate delivery to the nature 

of the products they offer.17 We also recognize that retail 

 

17 As the Sebago court recognized:

"One may also be engaged in a business that cannot be 

conducted unless he . . . can ship the finished product to 
17

sales and associated services are in a period of rapid 

transition, due to technical change and other factors. We deal 

only with the case and the evidence presently before us, and we 

imply no comment on the employment status of workers in any of 

the industries in GateHouse's examples.

GateHouse's remaining argument is premised on the fact that 

another of its distribution mechanisms involves wholesaling its 

newspaper to stores and similar businesses, which then retail 

the newspaper to individual readers. Gatehouse argues that to 

view delivery to readers as occurring in GateHouse's usual 

course of business would create the "inescapable" yet 

unreasonable result that "none of these stores can be 

independent contractors -- even though they are unquestionably 

independent businesses that fully satisfy the first and third 

prongs" of § 148B -- and that GateHouse would become the 

employer of the stores' employees who actually sell the 

newspapers to customers. Again, however, GateHouse has not 

offered any evidence as to those retailers' actual operations.

Nor has it addressed, in a manner rising to the level of 

 

the various markets. It is hard to imagine a business that 

is not dependent in some way upon transportation. In such 

instances, while transportation is a necessity, it does not 

thereby become a part of or a process in the business but 

it continues as ancillary and incidental thereto."

Sebago, 471 Mass. at 336, quoting from Cannon v. Crowley, 318 

Mass. 373, 376 (1945).
18

appellate argument, see Mass.R.A.P. 16(a)(4), as amended, 367 

Mass. 921 (1975), how the result it posits is inescapable.18

We therefore conclude that the delivery drivers furnish 

services in the ordinary course of GateHouse's business and 

accordingly are GateHouse employees under § 148B.

2. Waiver of preemption defense. In denying GateHouse's 

FAAAA preemption-based motion for relief from judgment -- filed 

more than two years after the judge ruled that King was a 

GateHouse employee, and nearly one year after the entry of a 

rule 54(b) judgment embodying that ruling -- the judge observed

that GateHouse had failed to raise the preemption defense in its 

answer or in a pretrial motion. See Mass.R.Civ.P. 8(c), 365 

Mass. 749 (1974) (party's responsive pleading shall set forth 

any affirmative defense). She then correctly stated that where 

a Federal statute achieves its preemptive effect not by 

depriving State courts of subject matter jurisdiction, but 

instead by altering the law that such courts must apply, 

 

18 In this connection, GateHouse fails to address "[t]he 

threshold question" under § 148B: whether putative employees 

provide services to a particular entity. Sebago, 471 Mass. at 

329. If not, they are not that entity's employees, and no 

analysis of § 148B's three prongs is necessary. See id. at 331-

332. Nor does GateHouse address the principle that the usual

course of business prong of § 148B "should not be construed to 

include all aspects of a business such that [the first and 

third] prongs . . . become unnecessary." Id. at 334-335 

(quotation omitted). See Athol Daily News, 439 Mass. at 180. 

We therefore do not consider these questions.
19

preemption is a waivable affirmative defense. See Central 

Transp., Inc. v. Package Printing Co., 429 Mass. 189, 191-195 

(1999) (Central Transp., Inc.); Ritter v. Massachusetts Cas.

Ins. Co., 439 Mass. 214, 217 (2003) (Ritter). She rejected 

GateHouse's argument that its waiver should have been excused, 

premised on GateHouse's assertions that raising a preemption 

defense at the time it answered in 2011 or moved for summary 

judgment in 2014 would have been futile, and that the governing 

law had been changed by the 2016 Federal appellate decisions 

underlying GateHouse's motion.

There was no abuse of discretion in these rulings. The 

Federal courts may "excuse a party for failing to raise a 

defense only when the defense, if timely asserted, would have 

been futile under binding precedent." Bennett v. Holyoke, 362 

F.3d 1, 7 (1st Cir. 2004). Assuming without deciding that the 

Supreme Judicial Court or this court would apply the same 

principle in a civil case,

19 GateHouse's argument still fails. 

Although, as of 2014, various unreported Federal district court 

and Massachusetts trial court decisions had rejected FAAAA 

preemption challenges to prong two of § 148B, those decisions 

were not "binding precedent." And as of 2013, both Federal 

Express and the Massachusetts Delivery Association were pressing 

 

19 Compare Commonwealth v. Vasquez, 456 Mass. 350, 358-359

(2010); Commonwealth v. Loadholt, 460 Mass. 723, 727 (2011).
20

the same preemption argument, on which they ultimately 

succeeded. See Schwann, 813 F.3d at 434 (noting trial court's 

2013 preemption decision); Massachusetts Delivery Assn., 821 

F.3d at 190 (noting that plaintiff had filed its preemption suit 

in September, 2010). Thus Gatehouse's assertion of a preemption 

defense in 2014 would not have been "futile" for excuse-ofwaiver purposes.

Next, although a change in governing law may sometimes 

warrant relief under Mass.R.Civ.P. 60(b)(6), 365 Mass. 829 

(1974), see Pielech v. Massasoit Greyhound, Inc., 47 Mass. App.

Ct. 322, 326-327 (1999) (amendment of statute), and may apply to 

cases appealable or on appeal at the time the law is changed, 

see Lindor v. McDonald's Restaurants of Mass., Inc., 80 Mass.

App. Ct. 909, 909-910 (2011) (judicial change of common-law 

rule), this case involves no such change in law. The FAAAA has 

had the same meaning since the moment of its enactment in 1994, 

even if that meaning was not declared in a binding manner for 

First Circuit and Massachusetts purposes until the Schwann, 

Massachusetts Delivery Assn., and Chambers20 decisions in 2016. 

See generally Shawmut Worcester County Bank, N.A. v. Miller, 398 

Mass. 273, 281 (1986) ("[A]lthough this court has not previously 

dealt with the issues raised here, we are not announcing common 

 

20 See note 7, supra.
21

law rules but rather are construing certain statutory 

provisions. Those provisions have had the same meaning since 

the effective date of the statutes"). The judge did not abuse 

her discretion in rejecting GateHouse's claim that a change in 

law warranted rule 60(b)(6) relief from GateHouse's waiver.

At oral argument in this appeal, GateHouse raised an 

argument never made in the trial court or in its appellate 

briefs: that the FAAAA deprives State courts of subject matter 

jurisdiction and, accordingly, that FAAAA preemption is a 

jurisdictional matter that cannot be waived. See Central 

Transp., Inc., 429 Mass. at 191-195; Ritter, 439 Mass. at 217. 

GateHouse bases its argument on language in the FAAAA 

prohibiting a State from "enact[ing] or enforc[ing] a law" 

related to a price, route, or service of a motor carrier with 

respect to the transportation of property (emphasis added). 49 

U.S.C. § 14501(c)(1) (2012).

21 In GateHouse's view, the 

prohibition on enforcement deprives State courts of subject 

matter jurisdiction. GateHouse has not addressed the fact that 

 

21 The relevant portion of the FAAAA, codified at 49 U.S.C. 

§ 14501(c)(1), provides as follows:

"Except as provided in paragraphs (2) and (3), a State

. . . may not enact or enforce a law, regulation, or other 

provision having the force and effect of law related to a 

price, route, or service of any motor carrier . . . or any 

motor private carrier, broker, or freight forwarder with 

respect to the transportation of property."
22

this prohibition by its terms applies "[e]xcept as provided in 

paragraphs (2) and (3)" of section 14501(c), suggesting that 

States (including State courts) are not ousted of all 

enforcement authority in this area. See Chambers, 476 Mass. at

108 n.16. Regardless, as the parties have not briefed whether 

FAAAA preemption is jurisdictional, and as further proceedings 

will be required in the trial court on, among other things,

relief for the class members, we do not resolve the issue. 

GateHouse may assert its argument that the point is 

jurisdictional, which under Mass.R.Civ.P. 12(h)(3), 365 Mass. 

754 (1974), must be considered by the court whenever raised, 

during those further proceedings. 

Conclusion. The judgment entered November 12, 2015, is 

affirmed. The order entered December 19, 2016, denying 

GateHouse's motion for relief from judgment is affirmed.

So ordered.