United States District Court, N.D. West Virginia, Clarksburg
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
DISMISS BY FEDEX GROUND PACKAGE SYSTEM, INC. [ECF NO.
S. KLEEH, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant FedEx Ground Package
System, Inc.'s Motion to Dismiss Plaintiff's
Complaint Pursuant to Rule 12(B)(6) [ECF No. 4]. The
Motion is now fully briefed and ripe for consideration. On
April 23, 2019, the Court held a hearing on the Motion. For
the reasons discussed below and the reasons listed by the
Court at the hearing, the Court GRANTS the
following facts are drawn from the Complaint. For purposes of
the Motion to Dismiss filed by FedEx Ground Package System,
Inc. [ECF No. 4], they are regarded as true.
Daniel Skelley (“Skelley”) filed a one-count
complaint against FedEx Corporate Services (“FedEx
Corporate Services”) and FedEx Ground Package System,
Inc. (“FedEx Ground”), alleging wrongful
discharge under Harless v. First National Bank of
Fairmont, 246 S.E.2d 270 (1978). See Compl. at
¶ 4(a). FedEx Corporate Services and FedEx Ground
are separate subsidiaries of FedEx Corporation. ¶ 10. In
1997, Skelley was hired by Roadway Package System, Inc.
(known as “RPS”), which was acquired by FedEx in
1998. ¶ 15. Skelley eventually became an employee of
FedEx Corporate Services and remained employed by FedEx
Corporate Services from 2005 to 2016. ¶ 13, 15. In 2005,
Skelley took over responsibility for a “significant
customer” called Your Kentucky Tobacco Resource, Inc.
(“YKTR”). ¶ 17. FedEx Corporate Services and
FedEx Ground had shipped cigarettes for YKTR since 2002.
early 2000s, New York City and New York State (the “New
York Plaintiffs”), along with the New York Attorney
General, were investigating companies -- including FedEx --
for violations of cigarette excise tax laws. ¶
34. The New York Plaintiffs had imposed an excise tax on
cigarettes possessed for sale or use in the State or City of
New York. ¶¶ 27-33. It was illegal for
cigarette retailers to ship cigarettes directly to consumers.
2005 and 2006, Skelley began to inquire within the FedEx
organization about the propriety of shipping cigarettes for
YKTR in light of legal issues facing FedEx and other common
carriers. ¶ 18. In February 2006, FedEx entered into an
Assurance of Compliance (“AOC”) with the New York
Attorney General, agreeing to a number of terms, including
compliance with New York laws moving forward. ¶ 36. In
response to Skelley's inquiries within FedEx, he was told
that as long as FedEx Corporate Services complied with the
FedEx “tariff, ” the shipments would be
acceptable. ¶ 18.
December 2013, law enforcement officers discovered evidence
that YKTR was illegally shipping packages to consumers in New
York via FedEx. ¶ 41. The city of New York then filed a
lawsuit against FedEx, alleging violations of federal laws,
state laws, and later, via amendment, breach of the AOC.
¶ 42. By 2016, the New York Plaintiffs had filed a
series of lawsuits (starting in 2013) against FedEx Ground,
seeking hundreds of millions of dollars in damages, over the
alleged illegal shipment of cigarettes by FedEx Ground.
2016, management at FedEx Corporate Services informed Skelley
that the New York Plaintiffs wanted to depose him.
¶¶ 60, 62. He was instructed to meet with two
in-house FedEx lawyers in Pittsburgh to “prepare”
for the deposition. Id. On October 11, 2016, Skelley
met with the lawyers and told them the following:
• that Skelley had inherited the YKTR account in 2005;
• that FedEx Corporate Services and FedEx Ground were
shipping cigarettes for YKTR;
• that YKTR told Skelley it was shipping only to legally
• that Skelley had received minimal guidance on dealing
with these issues; and
• that Skelley had made inquiries within the company
about what, if anything, needed to be done to manage the
account differently in light of ...