# Tobias v. Smith

> District Court, D. Massachusetts · April 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10200227

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** April 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10200227

## How later opinions describe it (automated extraction)

- holding that Carmack Amendment preempted state-law claims of negligence, misrepresentation, and Chapter 93A
- applying Rule 12(b)(6) standard when considering motion to dismiss on grounds of preemption

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

_______________________________________
)
THEODORE TOBIAS, )
)
Plaintiff, )
)
v. ) Civil Action No.
) 21-11736-FDS
FREDERICK SMITH, )
)
Defendant. )
_______________________________________)

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION
TO DISMISS AND PLAINTIFF’S MOTIONS TO AMEND
SAYLOR, C.J.
This is a case about a lost FedEx package. Pro se plaintiff Theodore Tobias has sued
Frederick Smith, founder and chief executive officer of FedEx Corporation, alleging that FedEx
Ground negligently lost or stole a package sent to his house. The complaint seeks $200 billion in
damages and appears to assert claims for breach of contract, negligence, larceny, theft, and
violations of Mass. Gen. Laws ch. 93A.
Smith has moved to dismiss the complaint on different grounds, including lack of
personal jurisdiction under Fed. R. Civ. P. 12(b)(2), failure to state a claim under Fed. R. Civ. P.
12(b)(6), and preemption by the Carmack Amendment, 49 U.S.C. § 14706 et seq. Tobias has
subsequently filed several motions to amend the complaint. For the following reasons, the
motion to dismiss will be granted and the motions to amend will be denied.
I. Background
A. Factual Background
The following facts are set forth as alleged in the complaint.
Theodore Tobias is a resident of Quincy, Massachusetts. (Compl. at 3).1 Frederick
Smith is the chief executive officer of FedEx Corporation and a resident of Memphis, Tennessee.
(Id.).2
FedEx allegedly informed Tobias that a package was shipped to him on February 22,
2018, at his address of 79 Berrios Hill Road in Windsor, Connecticut. (Id. at 4, 7).3 That

package was apparently never delivered. (Id. at 7). Tobias subsequently filed a claim with
FedEx on February 26. (Id.). According to the claim form, the lost package contained “original
writings” and a “McDonalds Prototype (modified).” (Id.). The claim form included a declared
value of $1,000 and a merchandise value of $200 billion. (Id.).4 He wrote in the “customer
remarks” section that a “Driver FedEx worker at 11:44 a.m. ran away, pulled off (put this receipt
on my door).” (Id.).
On March 9, Tobias called the police about that incident. (Id. at 4). He informed them
that on February 26 at 11:44 a.m., a FedEx driver ran away with his package and put a FedEx
Ground receipt on his door. (Id. at 4, 8). He told the police that he believed that the FedEx

driver stole his package. (Id. at 5, 8).
On March 13, he reported the incident again by filing a claim with the Cargo Claims
Department at FedEx. (Id. at 4). He contends that despite FedEx’s instructions stating that
“most claims will normally be resolved in 5 to 7 business days,” he has not received a response

1 The allegations in the complaint are not labeled consistently, and therefore the Court will cite to the
relevant ECF page numbers for clarity.
2 The complaint does not distinguish between FedEx Corporation, a holding company, and FedEx Ground,
the entity that allegedly handled Tobias’s package.
3 It is unclear from the complaint whether Tobias has separate addresses in Quincy, Massachusetts, and
Windsor, Connecticut.
4 To support the value claimed for those “original writings,” he has attached a letter from a representative at
Apple, Inc., stating that Apple was returning materials that Tobias sent because it was Apple’s policy not to accept
“outside submissions of product ideas for any purpose.” (Compl. at 5, 14).
from FedEx’s Cargo Claims Department or Smith in more than three years. (Id. at 4, 12).5
B. Procedural Background
This case was originally filed in Massachusetts state court. On October 25, 2021, Smith
removed the matter to this Court.
The complaint appears to allege several claims, including breach of contract (arising from

the purported breach of FedEx’s money-back guarantee), negligence, larceny, theft, and
violations of Mass. Gen. Laws ch. 93A. (Compl. at 5-6).
Smith has moved to dismiss the complaint on different grounds, including lack of
personal jurisdiction under Fed. R. Civ. P. 12(b)(2), failure to state a claim under Fed. R. Civ. P.
12(b)(6), and preemption by the Carmack Amendment, 49 U.S.C. § 14706 et seq. Tobias has
subsequently filed several motions to amend the complaint, which Smith has opposed.
II. Motion to Dismiss
A. Personal Jurisdiction
Defendant first contends that the complaint must be dismissed under Fed. R. Civ. P.
12(b)(2) for lack of personal jurisdiction.
A plaintiff bears the burden of establishing that the court has personal jurisdiction over a

defendant. See Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50
(1st Cir. 2002). When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(2), the court
may use several standards to assess whether a plaintiff has carried that burden: the “prima facie”
standard, the “preponderance of the evidence” standard, or the “likelihood” standard. See id. at
50-51, 51 n.5; Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145-46 (1st Cir.
1995). Where, as here, the court is called to make that assessment without first holding an

5 Tobias has also attached several photographs to the complaint, the relevance of which is unclear.
evidentiary hearing, the prima facie standard is applied. See United States v. Swiss Am. Bank,
Ltd., 274 F.3d 610, 618 (1st Cir. 2001).
Under that standard, the court takes the plaintiff’s “properly documented evidentiary
proffers as true and construe[s] them in the light most favorable to [the plaintiff’s] jurisdictional
claim.” A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016) (citing Phillips v.

Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008)). The plaintiff may not “rely on unsupported
allegations in its pleadings.” Id. (quoting Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118,
134 (1st Cir. 2006)) (internal alteration omitted). Instead, the plaintiff “must put forward
‘evidence of specific facts’ to demonstrate that jurisdiction exists.” Id. (quoting Foster-Miller,
46 F.3d at 145). Facts offered by the defendant “become part of the mix only to the extent that
they are uncontradicted.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir.
2009) (quoting Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007)).
The exercise of personal jurisdiction over a defendant must be authorized by statute and
consistent with the due-process requirements of the United States Constitution. See A Corp., 812

F.3d at 58 (citing Daynard, 290 F.3d at 52). Consistent with those requirements, a court may
exercise either general or specific jurisdiction. See Baskin-Robbins Franchising LLC v.
Alpenrose Dairy, Inc., 825 F.3d 28, 35 (1st Cir. 2016).
Specific jurisdiction exists when there is a demonstrable nexus between a
plaintiff’s claims and a defendant’s forum-based activities. General jurisdiction
exists when the litigation is not directly founded on the defendant’s forum-based
contacts, but the defendant has nevertheless engaged in continuous and systematic
activity, unrelated to the suit, in the forum state.

Swiss Am. Bank, 274 F.3d at 618 (internal citations and quotation marks omitted).
1. General Jurisdiction
As to general jurisdiction, the “paradigm forum” for an individual is his domicile.
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). Here, the
complaint alleges that defendant lives in Memphis, Tennessee. (Compl. at 3). It does not
otherwise allege any “continuous and systematic activity” by defendant in Massachusetts such
that the exercise of general jurisdiction over him would comport with federal due-process
demands. Accordingly, the Court may not exercise general jurisdiction over defendant.
2. Specific Jurisdiction

As to specific jurisdiction, due process requires that a plaintiff establish three conditions:
First, the claim underlying the litigation must directly arise out of, or relate to, the
defendant’s forum-state activities. Second, the defendant’s in-state contacts must
represent a purposeful availment of the privilege of conducting activities in the
forum state, thereby invoking the benefits and protections of that state’s laws and
making the defendant’s involuntary presence before the state’s courts foreseeable.
Third, the exercise of jurisdiction must be reasonable.
Copia Commc’ns, LLC v. AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016) (quoting Phillips, 530
F.3d at 27) (internal alteration omitted).
First, plaintiff’s claims must arise out of, or relate to, defendant’s forum-state activities.
See id. Here, the complaint does not identify that defendant engaged in any activities or contacts
in Massachusetts at all. Plaintiff’s claims all arise out of, or relate to, events that took place in
Connecticut with the missing or stolen package. Defendant did not participate in those events in
any way. Therefore, plaintiff has failed to show that his claims arise out of, or relate to,
defendant’s activities in Massachusetts.
Because plaintiff has not satisfied the relatedness prong, the Court need not consider
whether defendant purposely availed himself of the forum state or whether the exercise of
specific jurisdiction would be reasonable. See Phillips Exeter Acad. v. Howard Phillips Fund,
196 F.3d 284, 288 (1st Cir. 1999) (“An affirmative finding on each of the three elements of the
test is required to support a finding of specific jurisdiction.”).6
Accordingly, the exercise of personal jurisdiction over defendant would not comport with
due process. The Court will therefore grant defendant’s motion to dismiss.7
III. Motions to Amend
Plaintiff has filed two motions that, in substance, seek leave to amend the complaint. The

first is a “motion to change captions,” in which plaintiff seeks to name FedEx Corporation,
FedEx Ground Corporation, and Federal Express Corporation as defendants.8 The second is a
motion to amend. The proposed amended complaints appear to add the corporate defendants as
well as attach additional documents.9
Under Rule 15(a), a party may amend a pleading without leave of court in certain
relatively narrow circumstances. Fed. R. Civ. P. 15(a). “In all other cases, a party may amend
its pleading only with the opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Nonetheless, amendments
may be denied on the basis of “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue

6 In some circumstances, the First Circuit’s “sliding scale” approach to specific jurisdiction may allow a
plaintiff to overcome a weaker showing of relatedness and purposefulness with a stronger showing of
reasonableness. See Brown v. Dash, 2020 WL 6806433, at *8 (D. Mass. Nov. 18, 2020) (citing Nowak v. Tak How
Invs., Ltd., 94 F.3d 708, 717 (1st Cir. 1996)). Here, however, plaintiff has failed to muster even a weak showing of
relatedness.
7 Because the exercise of personal jurisdiction over defendant would not satisfy due process, the Court need
not consider whether personal jurisdiction is appropriate under the potentially “more restrictive” Massachusetts
long-arm statute, Mass. Gen. Laws ch. 223A, § 3. See A Corp., 812 F.3d at 59.
8 Defendant contends that FedEx Ground Corporation is not a legal entity at all; the proper designation is
apparently FedEx Ground Package System, Inc. (See Def. Opp’n Mot. Change Caption at 3, 7).
9 Plaintiff also failed to comply with Local Rule 15.1, which requires that a “party moving to amend a
pleading to add a new party shall serve, in the manner contemplated by Fed. R. Civ. P. 5(b), the motion to amend
upon the proposed new party at least 14 days in advance of filing the motion, together with a separate document
stating the date on which the motion will be filed. A motion to amend a pleading to add a new party shall be
accompanied by a certificate stating that it has been served in advance on the new party as required by this rule.”
“Compliance with local rules of procedure is mandatory, even for pro se parties.” Monahan v. Sabatis, 2014 WL
12703711, at *2 (D. Mass. Dec. 16, 2014).
prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). The court does not have to
“mindlessly grant every request for leave to amend. When a proffered amendment . . . would be
an exercise in futility, or otherwise would serve no useful purpose, the district court need not
allow it.” Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006).

“‘Futility’ means that the complaint, as amended, would fail to state a claim upon which
relief could be granted.” Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996).
The court must review a proposed amended complaint for futility under the “standard [that]
applies to motions to dismiss under Fed. R. Civ. P. 12(b)(6).” Adorno v. Crowley Towing &
Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).
A. Preemption by Carmack Amendment
Defendant contends that allowing plaintiff to amend his complaint would be futile
because his claims are preempted by the Carmack Amendment to the Interstate Commerce Act,
49 U.S.C. § 14706 et seq.
The Court will consider that argument under the standard applicable to a motion to

dismiss under Fed. R. Civ. P. 12(b)(6). See Field v. Napolitano, 663 F.3d 505, 508 (1st Cir.
2011) (applying Rule 12(b)(6) standard when considering motion to dismiss on grounds of
preemption); Burrill v. XPO Logistics Freight, Inc., 2019 WL 6134391, at *1 (D.N.H. Nov. 19,
2019) (considering preemption under Carmack Amendment pursuant to Rule 12(b)(6)).
The Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, states in
relevant part:
A carrier providing transportation or service . . . shall issue a receipt or bill of
lading for property it receives for transportation under this part. That carrier and
any other carrier that delivers the property and is providing transportation or
service . . . are liable to the person entitled to recover under the receipt or bill of
lading. The liability imposed under this paragraph is for the actual loss or injury
to the property caused by (A) the receiving carrier, (B) the delivering carrier, or
(C) another carrier over whose line or route the property is transported in the
United States . . . .
“[T]he principal purpose of the Amendment was to achieve national uniformity in the
liability assigned to carriers.” Rini v. United Van Lines, Inc., 104 F.3d 502, 504 (1st Cir. 1997).
“The preemptive effect of the Carmack Amendment over state law governing damages for the
loss or damage of goods has been reiterated by the Supreme Court in many cases and is well
established.” Id. “Preempted state law claims, therefore, include all liability stemming from
damage or loss of goods, liability stemming from the claims process, and liability related to the
payment of claims.” Id. at 506.
There are cases suggesting that FedEx, as an air carrier, is not subject to the Carmack
Amendment. See Kemper Ins. Co. v. Fed. Exp. Corp., 252 F.3d 509, 514 n.5 (1st Cir. 2001)
(“We note, however, that there is significant precedent indicating that the Carmack Amendment
simply does not apply to an air carrier such as FedEx”). Here, however, it would appear that
plaintiff’s package was processed and allegedly stolen by FedEx Ground Package System, Inc.,
because the complaint asserts that plaintiff received a FedEx Ground door tag. The Eleventh

Circuit has applied the Carmack Amendment to FedEx Ground Package System, Inc., as a proper
“carrier.” See Skanes v. FedEx, 734 Fed. App’x 671 (11th Cir. 2018) (per curiam); see also Soto
v. FedEx Exp. Corp., 2009 WL 2146600, at *1 (S.D.N.Y. July 17, 2009) (“Plaintiff’s claims as to
the third letter, which he sent by FedEx Ground, are governed by the Carmack Amendment to
the Interstate Commerce Act, 49 U.S.C. § 14706(c)(1)(A), which permits carriers to limit their
liability for loss of goods or other damages.”); Crypto Crane, LLC v. FedEx Ground Package
Sys., Inc., 2018 WL 6816104, at *2 (E.D. Mich. Nov. 7, 2018) (asserting that FedEx Ground
Package System, Inc. was common carrier of goods under Carmack Amendment).
The proposed amended complaints assert state-law claims for breach of contract,
negligence, larceny, theft, and violations of Mass. Gen. Laws ch. 93A. Those claims all stem
from the loss of goods and the claims process, and the sole injury asserted is the loss of
property.10 Such claims would be preempted by the Carmack Amendment. See Rini, 104 F.3d at
506-07 (holding that Carmack Amendment preempted state-law claims of negligence,
misrepresentation, and Chapter 93A); Burrill, 2019 WL 6134391, at *3-4 (granting motion to

dismiss on preemption grounds for consumer-protection claim); Noble v. Wheaton Van Lines,
2010 WL 3245421, at *6-7 (D. Mass. Aug. 17, 2010) (finding breach-of-contract claim
preempted by Carmack Amendment).
The requested amendments to the complaint would therefore be futile, and will be denied.
The Court will therefore deny plaintiff’s motions to amend.
IV. Conclusion
For the foregoing reasons, defendant’s motion to dismiss (Docket No. 7) is GRANTED
and plaintiff’s motion to change captions (Docket No. 9) and motion to amend the complaint
(Docket No. 12) are DENIED.
So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: April 15, 2022 Chief Judge, United States District Court

10 The First Circuit has held that the Carmack Amendment does not preempt “state law claims for injuries
that are separate and distinct from [ ] loss or damage” to goods, such as intentional infliction of emotional distress.
See Rini, 104 F.3d at 506-07. However, that issue is not presented here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200227. Public record. Not legal advice.