United States District Court, D. Massachusetts
QUINCY MUTUAL FIRE INSURANCE COMPANY a/s/o ALDA DONNELLY, Plaintiff,
VIVINT SOLAR DEVELOPER, LLC, and PHILIP F. ZAMPITELLA, Defendants.
MEMORANDUM AND ORDER ON MOTIONS TO REMAND AND
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Quincy Mutual Fire Insurance Company, on behalf of the
insured, Alda Donnelly, brings this suit against Vivint Solar
Developer, LLC (“Vivint”) and Philip F.
Zampitella for negligence, strict liability, gross
negligence, negligent supervision, fraud, breach of contract,
and violations of Massachusetts General Laws chapters 93A and
142A. [ECF No. 1-1 at 6-12]. Now before the Court is a Rule
12(b)(6) motion to dismiss brought by Vivint [ECF No. 8] and
a Rule 21 motion to dismiss by Zampitella [ECF No. 7], as
well as a motion to remand the action to state court brought
by Plaintiff [ECF No. 13].
evaluating a motion to dismiss, the Court “must take
the complaint's well-pleaded facts as true” and
draw “all reasonable inferences in the pleader's
favor.” Hochendoner v. Genzyme Corp., 823 F.3d
724, 730 (1st Cir. 2016); see also Carden v.
Klucznik, 775 F.Supp.2d 247, 249 (D. Mass. 2011)
(applying 12(b)(6) standard to Rule 21 motion). The following
facts are drawn from the complaint.
is a property and casualty insurance company with a principal
place of business in Quincy, Massachusetts. [ECF No. 1-1
¶ 1]. Defendant Vivint is a limited liability
corporation, incorporated in Delaware, with a principal place
of business in Utah. Id. ¶ 3. Defendant
Zampitella is an individual who resides in Ipswitch,
Massachusetts. Id. at ¶ 5.
about August 20, 2014, Plaintiff's subrogor, Donnelly,
signed an agreement with Vivint, a company that installs
residential solar panel systems, whereby Vivint would install
solar panels at her home. Id. at ¶ 9. Plaintiff
alleges that Howard Nell, the Vivint Solar Manager with whom
she signed the agreement, failed to explain and disclose all
of the terms and conditions of the proposed agreement, in
violation of applicable law. Id. at ¶¶ 9,
about April 29, 2015, Vivint employees installed solar panels
and related equipment on the Donnelly property. Id.
at ¶ 26. Zampitella, a Master electrician, was the
permit holder for the installation work at the Donnelly
residence. Id. at ¶ 20. As part of the
installation process, the individuals installing the solar
panels allegedly drove a metallic rod into the ground outside
the Donnelly property in order to ground the system and
connect the residence to solar panel equipment. Id.
at ¶ 27. Donnelly's property was serviced by a
heating system with an underground propane gas tank, and a
gas line ran from the underground propane tank into the
basement. Id. at ¶ 28. The underground tank had
a visible gas line cover near the area where Vivint's
employees drove the rod into the ground. Id. When
the installers drove the rod into the ground, it struck the
underground gas line and pierced the propane line, creating a
gas leak. Id. at ¶ 31. The employees then
removed the grounding rod, repositioned it to another
location on the Donnelly property, but did not investigate
the obstruction encountered or the damage caused to the gas
line. Id. at ¶ 32.
Donnelly's son returned home from work, he adjusted the
property's thermostat, and an explosion and fire
followed, which demolished the contents of the property and
severely injured Donnelly and her son. Id. at ¶
34. As a result, the installation of solar panels on the
Donnelly home became impossible to perform. Id. at
¶ 35. At the time of the incident, Donnelly had an
“all-risk” insurance policy with Quincy Mutual.
Id. at ¶ 39. In accordance with the policy,
Quincy Mutual issued actual cash value payments for the
damaged property, and as a result is now seeking, as a
subrogee, to recover its claim payments and the deductible
from Defendants. Id. at ¶¶ 40-41.
filed a complaint [ECF No. 1-1] in the Massachusetts Superior
Court for Norfolk County on September 22, 2017. On November
28, 2017, Defendants removed the case to federal court based
on diversity of citizenship pursuant to 28 U.S.C. §
1332. [ECF No. 1]. On December 4, 2017, Zampitella filed a
Motion to Dismiss [ECF No. 7], and on December 18, 2017,
Vivint filed a Motion to Dismiss [ECF No. 8]. On December 27,
2017, Plaintiff moved to remand the action to state court
[ECF No. 13].
MOTION TO REMAND
Standard of Review
assessing a claim of fraudulent joinder, “the court is
not bound by the allegations in the complaint and may
consider affidavits and other materials that bear on the
question of whether there is a reasonable basis for joinder
of the defendant.” In re Fresenius
Granuflo/Naturalyte Dialysate Prods. Liab. Litig., 76
F.Supp.3d 321, 333 (D. Mass. 2015) (citing Mills v.
Allegiance Healthcare Corp., 178 F.Supp.2d 1, 6 (D.
Mass. 2001)); see Surabian Realty Co. v. CUNA Mut.
Grp., 245 F.Supp.3d 297, 299 (D. Mass. 2017) (same);
Antony v. Duty Free Ams., Inc., 705 F.Supp.2d 112,
115 (D. Mass. 2010) (“[T]he fraudulent joinder doctrine
provides an exception to the general rule [on a motion to
dismiss] prohibiting courts from considering evidence
extrinsic to the facts in the complaint.”); see
also Badon v. RJR Nabisco Inc., 236 F.3d 282, 285 n.3
(5th Cir. 2000) (“Badon”) (considering
“undisputed summary judgment type evidence” when
determining whether any reasonable possibility of recovery
under state law existed).
moves to remand this case to state court, arguing that
Defendants have not met their burden of demonstrating the
existence of diversity jurisdiction in light of the fact that
the parties are not, in fact, completely diverse. Defendants
argue that removal was proper and that there is complete
diversity because Zampitella was fraudulently joined. In the
absence of Zampitella, there would be complete ...