Tobin Ex Rel. L. v. Federal Express Corp. , 775 F.3d 448 ( 2014 )

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
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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.
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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)
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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
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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
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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
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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
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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.
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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
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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.
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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").
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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.
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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
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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"
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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
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"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
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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
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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
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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.
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