          United States Court of Appeals
                     For the First Circuit


No. 14-1567

          MARYANGELA TOBIN, INDIVIDUALLY AND AS PARENT
           ON BEHALF OF HER MINOR CHILDREN, L. AND M.,

                     Plaintiff, Appellant,

                               v.

                  FEDERAL EXPRESS CORPORATION,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
               Selya and Kayatta, Circuit Judges.



     Rory FitzPatrick, with whom Cetrulo LLP was on brief, for
appellant.
     Thomas W. Southerland III, with whom Gareth W. Notis and
Morrison Mahoney LLP were on brief, for appellee.



                       December 30, 2014
            SELYA, Circuit Judge.          Plaintiff-appellant Maryangela

Tobin sued defendant-appellee Federal Express Corporation (FedEx)

for invasion of privacy, infliction of emotional distress, and

negligence.     After some preliminary skirmishing, FedEx asked the

district court to enter summary judgment in its favor on the

principal ground that the plaintiff's claims are barred by the

preemption provision of the Airline Deregulation Act (ADA), 49

U.S.C. § 41713(b)(1).         The court, ruling ora sponte, granted

FedEx's motion.     The plaintiff appeals.

            Our primary task is to determine whether and to what

extent ADA preemption fits the atypical fact pattern limned by the

record.    After careful consideration, we conclude that preemption

fits as to the plaintiff's common-law claims.               Accordingly, we

affirm    the   district   court's   decision   (although    our   reasoning

differs in certain respects).

I.   BACKGROUND

            We draw the facts from the summary judgment record,

construing them in the light most flattering to the plaintiff. See

Griggs-Ryan v. Smith, 904 F.2d 112, 114 (1st Cir. 1990).

            In October of 2012, a package was shipped from a FedEx

location in Eureka, California.            The sender requested priority

overnight delivery and specified the recipient's address on a

handwritten label.     That label, affixed to the package, reflected




                                     -2-
a sender name of "R. Mason" and an intended delivery address of "L.

Tobin, 21 Standish Avenue" in Plymouth, Massachusetts.

            At the drop-off facility, a FedEx employee inputted the

handwritten information into a computer and produced a printed

address label, which inadvertently showed an incorrect address.

This incorrect address was the plaintiff's home address.1                  The

package made its way across the country and, for aught that

appears, no FedEx employee sought to reconcile the two inconsistent

labels.   A FedEx courier responsible for delivering the package to

its final destination brought it to the address shown on the

printed label (the plaintiff's home).

            Plaintiff and her eleven-year-old daughter opened the

package. Two vacuum-sealed bags of what turned out to be marijuana

were inside.      The plaintiff and her daughter understandably became

agitated.

            The    police   responded   quickly    to   a   call    from   the

plaintiff. An officer told the plaintiff that he was concerned for

the safety of her and her children as the intended recipient could

come looking for the package.

            The officer then asked FedEx to flag the shipment and

refrain   from    disclosing   any   information   regarding       the   actual

delivery address to anyone who might inquire about the package.              A


     1
       The plaintiff's address was in Plymouth, but on a different
street (the name of which also began with the letter "S"). Her
house number, like that of the intended recipient, was 21.

                                     -3-
FedEx    customer    service    agent    noted    this   request       in   FedEx's

electronic customer service system.

            That same day, an individual identifying herself as Sue

Mason called FedEx, stated that she was expecting a package that

had not been received, supplied the tracking number, and requested

the address to which the package had been delivered.                        A FedEx

customer service agent initiated a "trace."              Later that day, Mason

contacted FedEx for a second time. She maintained that the package

had been misdelivered and voiced her belief that it had been

dropped off somewhere in Plymouth (at a house numbered 21 on a

street   beginning     with    the   letter    "S").     At    the   end    of   the

conversation, she indicated that she would simply get the package

herself.

            Meanwhile, a man came to the plaintiff's door asking

whether the plaintiff had received a package.                 The visitor's car

was parked in the plaintiff's driveway with two men seated inside.

Terrified, the plaintiff slammed the door shut and again contacted

the police.    In the aftermath of these events, the plaintiff and

her minor daughters have suffered fear and anxiety manifested in a

range of symptoms.

            Alleging    that    FedEx    was     responsible     not    only     for

mislabeling and misdelivering the package but also for wrongfully

disclosing her address to the sender or intended recipient, the

plaintiff (on her own behalf and on behalf of her minor children)


                                        -4-
sued for damages in a Massachusetts state court.               Her complaint

contained claims for invasion of privacy under Mass. Gen. Laws ch.

214, § 1B, intentional and negligent infliction of emotional

distress, and negligence.       FedEx removed the case to the federal

district court.     See 28 U.S.C. §§ 1332(a), 1441.

            Following discovery, FedEx sought summary judgment.           Its

motion papers raised, inter alia, the argument that the claims were

preempted by the ADA.       The plaintiff opposed FedEx's motion and

cross-moved for partial summary judgment on certain of her common-

law claims. Ruling from the bench, the court below granted FedEx's

motion and denied the plaintiff's cross-motion. This timely appeal

ensued.

II.   ANALYSIS

            We review a district court's grant of summary judgment de

novo.     See Iverson v. City of Bos., 452 F.3d 94, 98 (1st Cir.

2006).     We take the facts in the light most favorable to the

nonmoving party and draw all reasonable inferences therefrom in

that party's favor.    See Griggs-Ryan, 904 F.2d at 115.          We are not

married to the district court's rationale but, rather, may uphold

its entry of summary judgment on any ground made manifest by the

record.    See Iverson, 452 F.3d at 98.

            The   object   of   summary   judgment   is   to    "pierce   the

boilerplate of the pleadings and assay the parties' proof in order

to determine whether trial is actually required."          Wynne v. Tufts


                                    -5-
Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992).               Summary

judgment is proper only when no genuine issue of material fact

exists and the moving party is entitled to judgment as a matter of

law.   See Fed. R. Civ. P. 56(a).           When the nonmovant bears the

burden of proof on a particular issue, she can thwart summary

judgment only by identifying competent evidence in the record

sufficient to create a jury question.                 See Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Borges ex rel. S.M.B.W. v.

Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010).

          Refined to bare essence, the plaintiff's claims rest on

three factual premises: that FedEx mislabeled the package; that

FedEx misdelivered the package; and that FedEx disclosed the

plaintiff's   address   to    third   parties    (the    sender   and/or   the

intended recipient).     FedEx does not dispute the accuracy of the

first two premises.     It does, however, dispute the accuracy of the

third premise, vigorously denying that any FedEx employee revealed

the plaintiff's address to a third party.          Our initial task, then,

is to ascertain what the record shows (or fails to show) as to

whether such a disclosure occurred.           Once that task is performed,

we will examine the effect of ADA preemption on the plaintiff's

remaining claims.

                              A.   Disclosure.

          The plaintiff's claims were brought under Massachusetts

law.    Disclosure    (that    is,    proof    that   FedEx   disclosed    the


                                      -6-
plaintiff's address to a third party) is an essential element of

the plaintiff's privacy claim.       See Mass. Gen. Laws ch. 214, § 1B;

Spencer v. Roche, 755 F. Supp. 2d 250, 271-72 (D. Mass. 2010),

aff'd, 659 F.3d 142 (1st Cir. 2011).        To prevail on that claim, the

plaintiff must, at a bare minimum, carry the burden of proving that

a disclosure took place.        See Spencer, 755 F. Supp. 2d at 271-72.

Insofar as the plaintiff's common-law claims rest on the alleged

disclosure of her information, the plaintiff likewise must carry

the burden of proving disclosure.          See Sena v. Commonwealth, 629

N.E.2d 986, 994 (Mass. 1994); Sullivan v. Bos. Gas Co., 605 N.E.2d

805, 807 (Mass. 1993); see also Fithian v. Reed, 204 F.3d 306, 308

(1st Cir. 2000).

            In support of its summary judgment motion, FedEx asserted

that the record contained no competent evidence of any disclosure

of the plaintiff's address. At first blush, this assertion appears

ironclad: a veritable army of FedEx employees were deposed and all

of them staunchly denied that any leak of the plaintiff's address

to   a   third   party   ever    transpired.     FedEx's   records   fully

corroborate this denial.

            In an effort to vault this formidable wall of evidence,

the plaintiff argues that FedEx's policies for responding to

tracking inquiries, combined with the routine implementation of

those policies, compels the conclusion that a FedEx employee

disclosed or confirmed the plaintiff's address to a third party at


                                     -7-
some point after the package was delivered to her home.                  To

buttress this argument, the plaintiff points to FedEx policies

indicating that when a customer service inquiry is resolved in a

single call with no follow up needed, a record of the call may not

be maintained. Moreover, if a caller possesses certain information

regarding a package (such as the sender's address, the tracking

number, and the intended or actual delivery address), a customer

service agent may confirm or disclose the actual delivery address.

The   plaintiff   submits    that   these    policies,   taken    together,

constitute affirmative evidence that FedEx released or confirmed at

least a portion of the plaintiff's address.

           This   argument   will   not     wash.    What   the   plaintiff

characterizes as evidence amounts to nothing more than a laundry

list of possibilities and hypotheticals.            Although the policies

relied on by the plaintiff make it possible that some unknown FedEx

agent at some unknown time disclosed or confirmed the delivery

address to a third party, the plaintiff has not pointed to a shred

of competent evidence adequate to elevate her surmise from the

realm of the possible to the realm of the probable.           Speculation

about mere possibilities, without more, is not enough to stave off

summary judgment.   See Mack v. Great Atl. & Pac. Tea Co., 871 F.2d

179, 181 (1st Cir. 1989). Here, there is no more: conjecture about




                                    -8-
customer service scenarios does not bridge the gap.2   See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (confirming

appropriateness of summary judgment when nonmovant's evidence is

"merely colorable, or is not significantly probative" (citation

omitted)).   Accordingly, we affirm the district court's entry of

summary judgment on the plaintiff's statutory invasion of privacy

claim and on her three common-law claims to the extent that those

claims hinge on the supposed disclosure of information by FedEx.

                         B.   Preemption.

          What remains are the plaintiff's three common-law claims

(intentional infliction of emotional distress, negligent infliction

of emotional distress, and general negligence) to the extent that

those claims hinge on FedEx's admitted mislabeling and misdelivery

of the package.    Despite FedEx's confessed failings, the court

below granted summary judgment for FedEx based on ADA preemption.

We turn to the propriety of that ruling.

          A preemption inquiry begins with the Supremacy Clause,

which mandates that federal law is the "supreme Law of the Land."

U.S. Const. art. VI, cl. 2.     Any state law that contravenes a



     2
       The fact that a stranger showed up at the plaintiff's house
is not significantly probative of any address disclosure by FedEx.
The stranger's visit might have been prompted by, say, information
gleaned from the police, a process of inductive reasoning, or a
lucky guess.    Indeed, FedEx customer service records contain a
contemporaneous note, buttressed by later sworn testimony,
indicating that Sue Mason may have figured out on her own that the
package went to another Tobin in the very same town.

                                -9-
federal law is null and void.             See Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1, 210-11 (1824); Brown v. United Airlines, Inc., 720 F.3d

60, 63 (1st Cir. 2013).

             Preemption may be express or implied.              See Brown, 720

F.3d at 63. Express preemption occurs when congressional intent to

preempt state law is made explicit in the language of a federal

statute.     See Grant's Dairy - Me., LLC v. Comm'r of Me. Dep't of

Agric., Food & Rural Res., 232 F.3d 8, 15 (1st Cir. 2000).                    The

case at hand is an express preemption case: the ADA contains an

express preemption clause, and the parties do not dispute that

FedEx is a regulated air carrier and, thus, subject to the ADA.

             The ADA's preemption provision states in pertinent part

that "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    an   air    carrier."      49   U.S.C.

§   41713(b)(1).         Our   inquiry,    then,     reduces   to   whether   the

plaintiff's common-law claims are swept into the maw of ADA

preemption. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996);

Mass. Ass'n of HMOs v. Ruthardt, 194 F.3d 176, 179 (1st Cir. 1999).

             Congressional intent is the touchstone of any effort to

map the boundaries of an express preemption provision.                        See

Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992); Grant's

Dairy, 232 F.3d at 14.         To illuminate this intent, we start with

the text and context of the provision itself.              See Mass. Ass'n of


                                     -10-
HMOs, 194 F.3d at 179-80.                   Our analysis is informed by the

statutory structure, purpose, and history.                 See Brown, 720 F.3d at

63; DiFiore v. Am. Airlines, Inc., 646 F.3d 81, 86 (1st Cir. 2011).

               In applying the ADA's preemption provision, the analysis

breaks down into two parts: the "mechanism" question and the

"linkage" question. Brown, 720 F.3d at 63. The mechanism question

asks whether the plaintiff's claim is predicated on a "'law,

regulation, or other provision having the force and effect of

law.'"       Id. (quoting 49 U.S.C. § 41713(b)(1)).             If the mechanism

question yields an affirmative response, the linkage question then

asks       whether    the    claim   is    sufficiently    "related   to"   an   air

carrier's prices, routes, or services to warrant preemption.                     Id.

               In this case, the mechanism question is easily answered.

The Supreme Court has made it pellucid that state common-law causes

of action are provisions that have the force and effect of law for

purposes of ADA preemption.               See Nw., Inc. v. Ginsberg, 134 S. Ct.

1422, 1429 (2014).           Therefore, we focus exclusively on the linkage

question:       are    the    plaintiff's     common-law    claims    sufficiently

"related to" a "service" of FedEx?3

               We recently considered the meaning of the term "service"

under the ADA in Bower v. EgyptAir Airlines Co., 731 F.3d 85 (1st



       3
       Because we conclude that the plaintiff's common-law claims
are sufficiently related to FedEx's services to warrant preemption,
see text infra, we need not address FedEx's further contention that
its routes are also implicated.

                                           -11-
Cir. 2013).      There, we held that the plaintiff's claims regarding

the airline's ticketing, check-in, and boarding procedures and its

failure to prevent the abduction of the plaintiff's children by his

ex-wife related to the airline's services within the meaning of the

ADA.    See id. at 93-95, 98.           In so holding, the Bower court adopted

the    definition      of   "service"      articulated       in     Hodges    v.   Delta

Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc) — a

definition embraced by several other courts of appeals. See Bower,

731 F.3d at 94-95; see also Air Transp. Ass'n of Am., Inc. v.

Cuomo,    520    F.3d    218,     223    (2d    Cir.     2008)     (identifying    this

definition as the majority rule).

            Under       this    definition,        a     "service"     represents      a

"bargained-for or anticipated provision of labor from one party to

another,"       thus    leading    to     "a    concern     with    the     contractual

arrangement between the airline and the user of the service."

Hodges, 44 F.3d at 336 (internal quotation marks omitted). Matters

"appurtenant and necessarily included with the contract of carriage

between    the    passenger       or    shipper    and    the     airline,"    such   as

"ticketing, boarding procedures, provision of food and drink, and

baggage handling" are all included under the mantle of "service."

Id. (internal quotation marks omitted); see DiFiore, 646 F.3d at

87-88     (concluding       that       claims     arising       from   an     airline's

arrangements for passenger baggage handling related to an airline's

"service").


                                          -12-
              This case law fits comfortably within the wide sweep that

the Supreme Court has given to the term "service" as used in the

ADA.       In American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995),

the Court treated an airline's frequent flyer program as a service

in concluding that certain of the plaintiffs' state-law claims

regarding changes to the program were preempted by the ADA.               See

id. at 224-26, 228.         In a later case, the Court concluded that a

state law requiring shippers of tobacco products to use specific

inspection and verification procedures in transit and delivery

related to the "services" of the shipping companies.             See Rowe v.

N.H. Motor Transp. Ass'n, 552 U.S. 364, 368-69, 371, 373 (2008).4

              Stripped    of   rhetorical    flourishes,   the   plaintiff's

common-law claims all depend on FedEx's mislabeling and misdelivery

of the package.          In other words, they are claims about FedEx's

package handling, address verification, and delivery procedures.

Package      handling,    address   verification,   and    package   delivery

plainly concern the contractual arrangement between FedEx and the

users of its services (those who send packages).             Thus, they are

necessary appurtenances of the contract of carriage.             See Hodges,

44 F.3d at 336.     Seen in this light, Rowe and Bower lead inexorably


       4
       Rowe interpreted the preemption provision of the Federal
Aviation Administration Authorization Act (FAAAA), 49 U.S.C.
§ 14501(c)(1). The FAAAA's preemption provision is in pertinent
part identical to the preemption provision of the ADA and is
generally construed in pari materia. See Dan's City Used Cars,
Inc. v. Pelkey, 133 S. Ct. 1769, 1778 (2013); Rowe, 552 U.S. at
370.

                                      -13-
to the conclusion that the plaintiff's claims implicate FedEx's

services.

            The plaintiff resists this conclusion.     To begin, she

argues that her common-law claims do not relate to any FedEx

service because she herself did not bargain for the delivery of an

unwanted package. Since she and her children were strangers to the

delivery transaction, her thesis runs, her claims are not preempted

by the ADA.

            We disagree.    Satisfying the linkage element of ADA

preemption does not require that the plaintiff be the customer for

whom a service is undertaken. See, e.g., Bower, 731 F.3d at 88-89,

95 (claims by non-customer parent); DiFiore, 646 F.3d at 83, 87-88

(claims by baggage handlers).    The plaintiff identifies no case in

which a claim was saved from ADA preemption simply because the

parties to the lawsuit were not the parties to the transaction that

engendered the services.    We hold, therefore, that the fact that

the plaintiff was a stranger to the contract of carriage, not a

contracting party, does not in itself insulate her claims from ADA

preemption.

            Next, the plaintiff argues that tortious conduct is never

a "service" within the meaning of the ADA because no one would

bargain for it.      But this argument misses the point.       While

tortiously undertaken conduct may not itself be a service that

would be bargained for or anticipated by a consumer, the relevant


                                 -14-
inquiry is whether enforcement of the plaintiff's claims would

impose some obligation on an airline-defendant with respect to

conduct that, when properly undertaken, is a service.          See Bower,

731 F.3d at 97.

          This brings us halfway home. Having established that the

plaintiff's   claims   implicate    FedEx's   services,   we   next   must

consider whether the plaintiff's claims are sufficiently "related

to" those services to warrant preemption under the ADA.               The

Supreme Court has instructed that the "related to" language of the

ADA is meant to be construed broadly, consistent with Congress's

intention that ADA preemption should have an expansive reach.         See

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84 (1992).

Thus, a state-law claim having "connection with, or reference to,"

an airline's prices, routes, or services is preempted. Id. at 384.

That connection, however, cannot be de minimis: the challenged law

must have a "forbidden significant effect" on prices, routes, or

services in order to fall under the ADA's protective carapace. Id.

at 388.   If the connection to an airline's prices, routes, and

services is "tenuous, remote, or peripheral," ADA preemption will

not attach.   Id. at 390 (quoting Shaw v. Delta Air Lines, Inc., 463

U.S. 85, 100 n.21 (1983)).

          This broad construction is necessary to give effect to

congressional intent.    See id. at 378, 383.    That intent is driven

by the desire to further "efficiency, innovation, and low prices"


                                   -15-
as well as "variety [and] quality" of services and to ensure that

the states do not "undo federal deregulation with regulation of

their   own."      Id.    at        378    (alteration    in   original)     (internal

quotation marks omitted).

              In applying these principles to the case before us, Rowe

affords helpful guidance.                 There, the Court concluded that when a

state   law    directly       substitutes        the   state's     own    policies     for

competitive market forces, the state law produces precisely the

effect the preemption clause seeks to avoid: "a patchwork of state

service-determining laws, rules, and regulations."                       Rowe, 552 U.S.

at 372, 373.       As we explain below, the plaintiff's common-law

claims would have such an effect.

              For the plaintiff to prevail on her common-law claims,

she would have to prove either that FedEx's procedures were

inadequate or that those procedures, though adequate, were carried

out carelessly by FedEx's employees. See Fithian, 204 F.3d at 309;

Gilhooley v. Star Mkt. Co., 508 N.E.2d 609, 610-11 (Mass. 1987).

In the former circumstance, a finding that FedEx's procedures were

inadequate would have the significant effect of requiring new and

enhanced procedures for labeling, verification, and delivery of

packages (FedEx's main business).                      That effect would not be

tenuous,   remote,       or    peripheral.          See   Bower,    731    F.3d   at    96

(preempting common-law claims whose enforcement would impose a

"fundamentally     new        set    of    obligations    on   airlines"     including


                                             -16-
"heightened and qualitatively different procedures" for passenger

booking and boarding).

            In the latter circumstance, a finding that the actions of

FedEx's employees breached a state-law duty of care would also

produce a significant forbidden effect.                 Such a finding would

effectively supplant market forces with Massachusetts common-law

definitions of reasonableness and, thus, create the very patchwork

of   state-based     regulations       that   ADA    preemption   is    meant   to

preclude.    See Rowe, 552 U.S. at 373; Morales, 504 U.S. at 378.

And the risk of a patchwork effect is heightened where, as here,

the claims are of the sort typically tried to a jury.              See DiFiore,

646 F.3d at 88 (warning that "detailed, ad hoc compliance schemes"

could arise not just state by state, but verdict by verdict).

            The    plaintiff     insists      that    her     claims,   if   left

unpreempted, will have no such forbidden effect. These are garden-

variety tort claims, she says, enforcing nothing more than a duty

of care that exists throughout society. She analogizes her common-

law claims to everyday personal injury claims, which in some

circumstances have been held to elude preemption. See, e.g., Owens

v. Anthony, No. 2-11-0033, 2011 WL 6056409, at *1, *3 (M.D. Tenn.

Dec. 6, 2011) (concluding that tort claims arising from delivery

truck driver's alleged negligence in causing car wreck were not

preempted by the FAAAA); Kuehne v. United Parcel Serv., Inc., 868

N.E.2d   870,     872,   876   (Ind.    Ct.   App.    2007)   (concluding    that


                                       -17-
homeowner's tort claim arising from fall over package left on front

step was not preempted by the FAAAA).          This argument lacks force.

            The Morales framework "does not permit us to develop

broad rules concerning whether certain types of common-law claims

are preempted by the ADA."          Travel All Over the World, Inc. v.

Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996).

Instead, that framework calls for an individualized assessment of

the facts underlying each case to determine whether a particular

state-law claim will have a forbidden effect.          See Mass. Delivery

Ass'n v. Coakley, 769 F.3d 11, 20 (1st Cir. 2014). Although claims

arising out of careless driving or infelicitously placed packages

may not impose any greater duty on an airline than that which

exists for any other firm, the common-law claims here are of a

different genre.

            In   DiFiore,   we   drew   the   preemption   "dividing   line"

between state laws that regulate "how [a] service is performed"

(preempted) and those that regulate how an airline behaves as an

employer or proprietor (not preempted).         646 F.3d at 87-88.     It is

the character and scope of the duty of care imposed that guides the

analysis.   See Bower, 731 F.3d at 96.        By using state common law as

a blunt instrument to prescribe protocols for package labeling,

verification,     and   delivery,    the   claims   presented   here   would

regulate how FedEx operates its core business.         See Rowe, 552 U.S.

at 372-73; Bower, 731 F.3d 96.          A damages award could result in


                                    -18-
fundamental changes to FedEx's services — much more so than a

damages award for a driving mishap or a slip-and-fall.

          The regulatory bite of tort law is powerful and direct.

"[R]egulation can be as effectively exerted through an award of

damages as through some form of preventive relief.         The obligation

to pay compensation can be, indeed is designed to be, a potent

method of governing conduct and controlling policy."            San Diego

Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959).         So it is

here: where the duty of care alleged drills into the core of an air

carrier's services and liability for a breach of that duty could

effect fundamental changes in the carrier's current or future

service offerings, the plaintiff's claims are preempted by the ADA.

          The plaintiff has a fallback position.          She asserts that

her claims escape preemption because they do not impose duties

different from those that the market demands and, thus, do not

threaten the objectives of the ADA.      After all, FedEx already has

market-based   incentives   to   label   and    deliver   packages   in   an

accurate manner.   Indeed, it likely competes with other delivery

companies based on these criteria.             In the plaintiff's view,

holding FedEx liable in tort for breach of its duty appropriately

to label and deliver the package would impose no greater burden

than that demanded by competitive market forces.

          This proposition is too clever by half.          The purpose of

ADA preemption is to enhance airlines' reliance on competitive


                                  -19-
market forces in order to shape their prices, routes, and services

not at one particular moment in time but, rather, in response to

the protean demands of the market.          See Rowe, 552 U.S. at 373;

Morales, 504 U.S. at 378-79.       Even though accuracy in labeling and

shipping is a service goal currently dictated by the market and one

that   FedEx   has   chosen   to   pursue   through   its   policies   and

procedures, the demands of the market could change at any time.

FedEx's services must be largely free from state regulation, yet

state enforcement of FedEx's current policies and procedures could

impermissibly lock particular services into place.          See Rowe, 552

U.S. at 373.   With this in mind, the market's potential continuous

ebb and flow requires preemption of the plaintiff's common-law

claims.

III.   CONCLUSION

            We need go no further.     This is a hard case, and it is a

familiar adage that hard cases can sometimes tempt courts to make

bad law.    See Burnham v. Guardian Life Ins. Co., 873 F.2d 486, 487

(1st Cir. 1989) (citing Lord Campbell in East Indian Co. v. Paul,

7 Moo. P.C.C. 111).    Although we are not without sympathy for the

unwanted intrusions that were visited upon the plaintiff and her

children, our singular duty is to apply the statute that Congress

wrote in the way that the Supreme Court has interpreted it.



Affirmed.


                                    -20-
