Bennett et al v. Amadio et al

Filing 28

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the above mentioned reasons the motion to dismiss ECF No. 8 is DENIED as to the raised septic system because that system remains partially on Bennetts land, and ALLOWED as to the raised leaching field causing the water runoffs because the newowner (Amadio) did not perform any affirmative act in directing the water towards Bennetts property.SO ORDERED."(Sonnenberg, Elizabeth)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
JOANNE BENNETT and RALPH TRAVERS )
)
Plaintiffs, )
)
v.
)
)
ANGELA AMADIO, FEDERAL HOME
)
LOAN MORTGAGE CORPORATION,
)
DAVID H. FLETCHER, FEDERAL HOME )
LOAN FUNDING CORPORATION
)
)
Defendants. )
)

CIVIL ACTION
NO. 12-10377-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.

I.

October 23, 2012

INTRODUCTION
In this case arising out of the installation of a septic

system between two neighboring lots, the plaintiffs, Joanne
Bennett (“Bennett”) and Ralph Travers (“Travers”), allege that a
septic system for a lot owned by Angela Amadio (“Amadio”)
partially trespasses into Bennett’s land.

Furthermore, Bennett

alleges that the raised leaching field for the septic system
causes water to run off unnaturally and trespass into her
property.

Amadio moves to dismiss this claim, alleging that the

prior owner of her lot installed the septic system and built the
raised leaching field before she took possession of the land.

As

such, she is not responsible for the trespass.

Co-defendant

Federal Home Loan Mortgage Corporation (“Federal Home Mortgage”)
opposes Amadio’s motion for the same reasons as the Plaintiffs to
preserve its rights to indemnification in the event Bennett and
Travers prevail.
A.

Procedural Posture

Bennett and Travers originally filed suit in Bristol County
Superior Court naming Amadio as a defendant with respect to Count
II of their Complaint, claiming Trespass.
No. 2-1.

Compl. ¶¶ 38-43, ECF

The case was subsequently removed to the United States

District Court for the District of Massachusetts on February 29,
2012.

Notice of Removal, ECF No. 2.

dismiss on May 16, 2012.

Amadio filed her motion to

Def. Angela Amadio’s Mot. Dismiss, ECF

No. 8; Def. Angela Amadio’s Mem. Supp. Her Mot. Dismiss, ECF No.
9.

On May 31, 2012, Bennett and Travers filed their opposition

to Amadio’s motion.

Pls.’ Opp’n Def. Angela Amadio’s Rule

12(b)(6) Mot. Dismiss, ECF No. 12; Pls.’ Mem. Supp. Their Opp’n
Def. Angela Amadio’s Mot. Dismiss (“Pls.’ Opp’n”), ECF No. 13.
Co-defendant Federal Home Mortgage likewise opposed Amadio’s
motion, Def. Federal Home Loan Mortgage Corp.’s Opp’n Def. Angela
Amadio’s Mot. Dismiss, ECF No. 14; Mem. Supp. Def. Federal Home
Loan Mortgage Corp.’s Opp’n Def. Angela Amadio’s Mot. Dismiss
(“FHC Mem.”), ECF No. 15, and amended its Answer to the Complaint
on June 17, 2012, to include a cross-claim against co-defendants

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Amadio and David H. Fletcher (“Fletcher”).

Def. Federal Home

Loan Mortgage Corp.’s Am. Answer Compl. Affirmative Defenses &
Cross-cl., ECF No. 20.
B.

Facts Alleged

Bennett owns real property located at 99 Chestnut Street,
Seekonk, Massachusetts.

Compl. ¶ 1.

located at 109 Chestnut Street.

Travers owns real estate

Id. ¶ 2.

A parcel at 89

Chestnut Street is adjacent to Bennett’s parcel.

Id. ¶¶ 12-13.

Federal Home Mortgage previously owned 89 Chestnut Street.
5.

Id. ¶

Federal Home Mortgage, through the Federal Home Loan Funding

Corp. (“Federal Loan Funding”), hired Fletcher to repair the
septic system in November, 2010.

Id. ¶¶ 17-18, 33.

In the

course of the repair, Fletcher cut five trees from Bennett’s
property, id. ¶ 19, and installed a “raised septic system,”
including a raised leaching field, id. ¶¶ 27-31.

The leaching

field has dirt sides which slope onto Bennett’s property, id. ¶
29, and cause water to run off unnaturally and trespass onto
Bennett’s property, id. ¶ 31.
Amadio is the current owner of the parcel located at 89
Chestnut Street.

Id. ¶ 4.

The original trespass occurred before

Amadio’s acquisition of that property.
C.

Id. ¶ 33.

Federal Jurisdiction

Jurisdiction is proper under 28 U.S.C. § 1331.
arises under the laws of the United States.
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This case

See 12 U.S.C. §

1452.

Federal Home Mortgage is a corporate entity created by the

United States and organized and existing under the terms of the
Emergency Home Finance Act of 1970, Pub. L. No. 91-351, 84 Stat.
450 (codified as amended at 12 U.S.C. §§ 1451-1459).

Federal

district courts have jurisdiction over any civil action, case, or
controversy where Federal Home Mortgage is a party and such
actions may be removed to a federal district court any time prior
to trial.
II.

12 U.S.C. § 1452(f)(2)-(3).

ANALYSIS
A.

Legal Standard1

“A Rule 12(c) motion . . . implicates the pleadings as a
whole.

Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55 (1st

Cir. 2006).

A motion for judgment on the pleadings under Federal

Rule of Civil Procedure 12(c) is treated like a Rule 12(b)(6)
motion to dismiss.
(1st Cir. 2012).

Downing v. Globe Direct LLC, 682 F.3d 18, 22

Because a motion for judgment on the pleadings

“involves some assessment of the merits,” the Court must “view
the facts contained in the pleadings in the light most favorable
1

The parties informed the Court that cases 12-10377 and 1210405 were the same. On April 2, 2012, this Court consolidated
both cases to the lower case number (12-10377) and closed the
other (12-10405). On March 15, 2012, Federal Home Mortgage filed
its responsive pleadings. Def. Federal Home Loan Mortgage
Corp.’s Answer Compl. Affirmative Defenses, ECF No. 8 (12-10405);
Def. Federal Home Loan Mortgage Corp.’s Answer Def. Angela
Amadio’s Cross-cl. Affirmative Defenses, ECF No. 9 (12-10405).
Similar responsive pleadings have not been filed in case 1210377. This Court will treat Amadio’s motion under 12(b)(6) as a
motion for judgment on the pleadings under Rule 12(c).
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to the party opposing the motion [- here, the plaintiffs Bennett
and Travers and co-defendant Federal Home Mortgage -] and draw
all reasonable inferences in [their] favor.”
509 F.3d 36, 43 (1st Cir. 2007).

Curran v. Cousins,

A “court may not grant a

defendant’s Rule 12(c) motion ‘unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’”

Rivera-Gomez v. de

Castro, 843 F.2d 631, 635 (1st Cir. 1988) (quoting George C. Frey
Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554
F.2d 551, 553 (2d Cir. 1977)).

The Court assumes without

deciding that the Twombly-Iqbal standard applies to motions for
judgment on the pleadings as well as to motions to dismiss.

See

Soto-Torres v. Fraticelli, 654 F.3d 153, 155-56 (1st Cir. 2011).
Here the result is the same whichever standard is employed.
B.

Trespass

Bennett advances two claims against Amadio: 1) the raised
septic system is on Bennett’s land, Compl. ¶ 40, and 2) a raised
leaching field causes water to run off onto her property, id. ¶
41.
In the “majority of encroachment cases, the landowner is
entitled to removal even ‘when the encroachment is [sic]
unintentional or negligent and the cost of removal is substantial
in comparison to any injury suffered by the owner of the lot upon
which the encroachment has taken place.’”

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Russo v. Gulla, No.

2000-1375-C, 2002 WL 1805420, at *2 (Mass. Super. Ct. Aug. 6,
2002) (Agnes, J.) (quoting Capodilupo v. Vozzella, 46 Mass. App.
Ct. 224, 226 (1999)) (holding that a “well, located between 6
inches and 14 3/4 inches from the boundary line, is a significant
encroachment . . . .

Further, requiring the defendants to remove

the well and build a new one on their property is not a
substantial burden,” Russo, 2002 WL 1805420, at *3).

Artificial

collecting, channeling, and discharging of surface waters onto
another’s land without legal right constitutes a continuing
trespass.

Chesarone v. Pinewood Builders, Inc., 345 Mass. 236,

240 (1962); see also Gencarelli v. Commonwealth, No.
WOCV200801793D, 2012 WL 1994729, at *2 (Mass. Super. Ct. Mar. 20,
2012) (Wrenn, J.)).
Neither party disputes that Amadio was not the owner of real
property at 89 Chestnut Street during the planning, preparation,
repair, or installation of the raised septic system and leaching
field.

Pls.’ Opp’n 2.

Bennett alleges, however, that Amadio had

knowledge of the ongoing trespass, and yet has not fulfilled her
duty to mitigate damages by building a retaining wall.

Id. at 2-

3.
As to Bennett’s first claim, although Amadio did not set in
motion any of the acts that caused the initial trespass, the
raised septic system remains on Bennett’s land, and therefore,
Amadio may still be liable for the continuing trespass as to the

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septic system.

Carpenter v. Texaco, Inc., 419 Mass. 581, 583

(1995) (noting that “a continuing trespass or nuisance must be
based on recurring tortious or unlawful conduct and is not
established by the continuation of harm caused by previous but
terminated tortious or unlawful conduct”).2
As to Bennett’s second allegation, Amadio is not liable for
trespassing with respect to the water runoff.

The claim in this

case is similar to the claim alleged in Rubin v. Walpate Const.
Mgmt., Inc., No. 98-6146, 1999 WL 706710 (Mass. Super. Ct. Aug.
24, 1999) (Sosman, J.), where plaintiffs claimed that new owners
failed “to terminate the continuing entry of water.”

Id. at *3.

The Rubin court observed that the new owners of the land did not
contribute or cause the water to flow onto the plaintiffs’
parcel.

Id.

Instead, the alterations to the land that allegedly

diverted the water were made by the prior owner, a construction
company.

Id.

The Rubin court concluded that “liability with

respect to the water runoff may be pursued under a theory of
private nuisance based on alleged ‘unreasonable use’ of their
property . . . .

However, in the absence of any affirmative act

on the part of the [new owners] in directing the water towards

2

Viewing the facts contained in the pleadings in the light
most favorable to the parties opposing the motion, this Court
does not decide whether the alleged trespass is ‘trivial’ or de
minimis. Russo, 2002 WL 1805420, at *2-3 (citing Restatement
(Second) of Torts § 941, Comment c at 583 (1979)(minimal
encroachment is described as 4 inches)).
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the plaintiffs’ property, the trespass count must be dismissed as
to them.”3

Id.

Here, however, Bennett and Travers do not allege a claim for
nuisance.

See Compl. ¶¶ 32-78 (enumerating the 8 counts); see

also FHC Mem. 4 n.3 (noting that “plaintiffs do not allege a
claim for nuisance against Amadio”).
claim against Amadio is for trespass.
(enumerating the 8 counts).

Bennett and Travers’s only
See Compl. ¶¶ 32-78

Moreover, Amadio did not contribute

or cause the water to flow onto Bennett’s parcel; rather, the
prior owner allegedly built the leaching field which diverts
water onto Bennett’s property.

Compl. ¶¶ 31, 33.

Therefore, in

the absence of an affirmative act by Amadio, Bennett and
Travers’s claim against Amadio for trespass with respect to water
runoff must fail.
III. CONCLUSION
For the above mentioned reasons the motion to dismiss [ECF
No. 8] is DENIED as to the raised septic system because that

3

Bennett and Travers have not brought a private nuisance
claim. The Rubin court held that new owners may be liable for
private nuisance when they maintain a condition on their property
that causes a substantial and unreasonable interference with the
use and enjoyment of the property of another. 1999 WL 706710, at
*2. Therefore, the Rubin court denied a motion for summary
judgment because “[t]he complaint allege[d] that defendants’
‘interference with the natural flow of water was unreasonable’
and . . . [the current owners] are the ones now maintaining and
continuing the condition that gives rise to that alleged
‘unreasonable’ interference.” Id. at *3
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system remains partially on Bennett’s land, and ALLOWED as to the
raised leaching field causing the water runoffs because the new
owner (Amadio) did not perform any affirmative act in directing
the water towards Bennett’s property.
SO ORDERED.

/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE

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