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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 tip-

sharing 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 three-

prong 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'Hare-

Midway).   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-of-

waiver 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.
