Quincy Mutual Fire Insurance Company, a/s/o Alda Donnelly v. Vivint Solar Developer LLC

Filing 18

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Accordingly, Plaintiffs Motion to Remand [ECF No. 13 ] is GRANTED, Zampitellas Motion to Dismiss under Rule 21 [ECF No. 7 ] is DENIED, and Vivints Motion to Dismiss under Rule 12(b)(6) [ECF No. 8 ] is DENIED as moot.SO ORDERED.(McDonagh, Christina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
QUINCY MUTUAL FIRE INSURANCE
COMPANY a/s/o ALDA DONNELLY,
Plaintiff,
v.
VIVINT SOLAR DEVELOPER, LLC, and
PHILIP F. ZAMPITELLA,
Defendants.

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Civil Action No. 17-cv-12343-ADB

MEMORANDUM AND ORDER ON
MOTIONS TO REMAND AND DISMISS
BURROUGHS, D.J.
Plaintiff 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. 11 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].
I.

BACKGROUND
In 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.

Plaintiff 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.
On or 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, 13–15.
On or 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.
When Donnelly’s son returned home from work, he adjusted the property’s thermostat,

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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.
Plaintiff 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].
II.

MOTION TO REMAND
A.

Standard of Review

When 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

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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).
B.

Discussion

Plaintiff 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 diversity and this Court would have subject matter
jurisdiction over Plaintiff’s claim under 28 U.S.C. § 1332.
“[U]nder the doctrine of fraudulent joinder, removal is not defeated by the joinder of a
non-diverse defendant where there is no reasonable possibility that the state’s highest court
would find that the complaint states a cause of action upon which relief may be granted against
the non-diverse defendant.” Universal Truck & Equip. Co. v. Southworth-Milton, Inc., 765 F.3d
103, 108 (1st Cir. 2014). The removing party bears the burden of demonstrating by clear and
convincing evidence either that “there was outright fraud committed in the plaintiff’s pleadings,
or that there is no possibility, based on the pleadings, that the plaintiff can state a cause of action
against the non-diverse defendant in state court.” Surabian Realty, 245 F. Supp. 3d at 299
(quoting Mills, 178 F. Supp. at 5) (noting that the court has adopted this test from the Second
Circuit). In deciding whether there is a “reasonable basis in law and fact” for the claim, the Court
must “resolve all disputed questions of fact and any ambiguities in the current controlling
substantive law in plaintiffs’ favor.” Phillips v. Medtronic, Inc., 754 F. Supp. 2d 211, 215 (D.

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Mass. 2010) (quoting Badon, 236 F.3d at 286); see Badon v. RJR Nabisco Inc., 224 F.3d 382,
393 (5th Cir. 2000) (“RJR Nabisco”) (explaining that court resolves factual controversies in
favor of non-moving party, but only when there is actual controversy, that is, when both parties
have submitted evidence of contradictory facts); see also In re Fresenius, 76 F. Supp. 2d at 333
(applying Badon, inter alia).
Here, Defendants have not suggested there was outright fraud committed in the
complaint, so the only question is whether there is a reasonable possibility that Plaintiff has a
claim against Zampitella. Defendants argue that because Zampitella was an employee of Vivint,
and that Vivint is therefore liable for his actions under the principle of respondeat superior,
Plaintiff cannot state a claim against him. 1 Plaintiff concedes that if Zampitella was an employee
of Vivint, then there is no viable claim against him, but also alleges that Zampitella was an
independent contractor, and therefore potentially liable for the misuse of his Master’s License
and for any negligence of the journeymen working under it under the principle of respondeat
superior. 2 In effect, the parties agree that the question of whether Plaintiff can legitimately assert
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The doctrine of respondeat superior ordinarily does not shield a negligent employee from the
employee’s own liability. See Horras v. Leavitt, 495 F.3d 894, 904 (8th Cir. 2007) (quoting
Pavelka v. Carter, 966 F.2d 645, 651 (4th Cir. 1993)) (stating that under the doctrine of
respondeat superior “liability is joint and several; the servant is not relieved”); see also Wyss v.
Gen. Dynamics Corp., 24 F. Supp. 2d 202, 211 (D.R.I. 1998) (“[A]n employer’s liability under
respondeat superior is not mutually exclusive of an individual employee’s joint and several
liability.”). Courts in other districts, though, have held that joinder was fraudulent under similar
circumstances. For example, in Linnin v. Michielsens, the court found a non-diverse employee of
the defendant had been fraudulently joined because “even if there was a possibility that
Defendant [employee] could be found negligent, Plaintiff had ‘no real intention [to get] a joint
judgment.’” 372 F. Supp. 2d 811, 825 (E.D. Va. 2005) (citing AIDS Counseling & Testing Ctrs.
v. Grp. W Television, Inc., 903 F.2d 1000, 1003 (4th Cir. 1990)). The court noted that “given the
relative financial positions of most companies versus their employees, the only time an employee
is going to be sued is when it serves a tactical legal purpose, like defeating diversity.” Id. at 823
n.4 (quoting Ayoub v. Baggett, 820 F. Supp. 298, 300 (S.D. Tex. 1993)).
2
In Plaintiff’s memorandum in support of its Motion to Remand [ECF No. 14], Plaintiff
incorporates by reference its argument in its opposition to Zampitella’s Motion to Dismiss [ECF
No. 9].
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a claim against Zampitella turns on whether he was an employee of Vivint or an independent
contractor.
To support the assertion that Zampitella was an employee of Vivint, Defendants
proffered Zampitella’s 2015 W-2 [ECF No. 16-1 at 3], his I-9 Employment Eligibility
Verification [ECF No. 16-1 at 2], an affidavit in which Zampitella states he “was working for
Vivint at the time of the alleged incident” [ECF No. 7-3 at 2], and a License Holder Agreement
between Zampitella and Vivint [ECF No. 16-2]. Defendants assert that Zampitella was not at the
Donnelly residence on the date of the alleged incident, did not perform work at the site, and
merely holds the Master’s License, which under Massachusetts regulations allows Vivint to
employ multiple journeymen electricians at one time.
To support the assertion that Zampitella was not an employee, Plaintiff submitted permits
indicating Zampitella may have performed work as an independent contractor for individual,
non-Vivint clients from 2014–2016 3 [ECF No. 9-2], Massachusetts Secretary of State
Corporation Records indicating that Zampitella was the Director of “All Service Electric, Inc.,” a
Massachusetts electrical contracting corporation [ECF No. 9-3], a Massachusetts Office of
Consumer Affairs and Business Regulations 2017 meeting agenda noting that Zampitella’s
Master’s License, which was previously in use by Vivint, was removed by the Commonwealth of
Massachusetts Board of State Examiners of Electricians and the Board of Appeals after his
“contract” with Vivint expired [ECF No. 9-4], a June 22, 2017 Certificate of Amendment for
Foreign Limited Liability Company filed with the Massachusetts Secretary of State Corporation
records in which Vivint adds David Bywater as an authorized “officer/manager” and Lloyd

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Zampitella argues that these permits appear to refer to his father, also a Master Electrician
named Philip Zampitella, as the address and information refers to the father. [ECF No. 12 at 1
n.1].
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Smith as an authorized “signatory/manager” and notes that at the time of filing there were “no
managers listed on the registration certificate” [ECF No. 9-5], Vivint’s SEC Form 424B4 filing,
dated October 1, 2014, indicating it compensates its installers on a per-project basis and not on
an hourly basis [ECF No. 9-6], a consent decree entered into between Zampitella and the
Massachusetts Board of State Examiners of Electricians in which Zampitella was disciplined and
fined for a violation of the Commonwealth’s job staffing requirements, and which allegedly
indicates that a Master Electrician is personally responsible for the journeymen workers at a
Vivint customer’s premises [ECF No. 9-7], and the expert opinion of a Master Electrician and
former Executive Secretary of the Massachusetts Board of Electrical Examiners stating that
unless it can be established that Zampitella was a manager or officer of Vivint, then Vivint’s use
of his Masters’ License violated state law, and that Zampitella was legally an independent
contractor [ECF No. 9-7].
Having weighed the evidence submitted by both parties, the Court concludes that
Plaintiff has met its burden to show there is “at least an arguably reasonable basis for predicting”
that it could prevail on its claim against Zampitella. See Badon, 236 F.3d at 286. The evidence
submitted by Plaintiff indicates that it might be able to prove that Zampitella was an independent
contractor. For example, evidence that Zampitella operated his own contracting corporation, that
he may have performed work for individual clients during the time at issue, the reference to his
“contract” with Vivint in state records, and the Vivint Form 424B4 filing indicating that it
compensates its installers on a per-project basis, not an hourly basis, all could contribute to
proving that Zampitella worked as a contractor during the relevant time, and was not an
employee of Vivint. Further, Defendants’ evidence is not strong enough to demonstrate
conclusively that Zampitella was an employee of Vivint. References to Zampitella “working for

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Vivint” and contractual language that Vivint desires to “employ” Zampitella do not prove that he
satisfied the legal definition of an employee or that Vivint treated him as an employee rather than
as an independent contractor. Notably, while Vivint did issue a W-2 to Zampitella, which
ordinarily is only required for employees, not independent contractors, 4 the W-2 shows that
Zampitella was paid only $3,927.17 in wages by Vivint in 2015, which does not indicate fulltime employment throughout 2015. Accordingly, even if the documentation submitted by
Defendants indicates that Zampitella was an employee of Vivint for some of 2015, it does not
prove he was an employee at the time of the installation of the solar panels on the Donnelly
property. Thus, based on the evidence submitted by the parties, and resolving all disputed
questions of fact in Plaintiff’s favor, see Phillips, 754 F. Supp. 2d at 215, the Court is not able to
conclude that Plaintiff cannot prevail on its claims against Zampitella. See id. at 217 (“[a]ny
possibility of recovery, even if slim, militates against a finding of fraudulent joinder (quoting
Locicero v. Sanofi-Aventis U.S. Inc., No. 08-cv-489S, 2009 WL 2016068, at *4, *8 (W.D.N.Y.
July 10, 2009)). Accordingly, Zampitella was not fraudulently joined and the case must be
remanded to state court due to a lack of diversity jurisdiction. 5
III.

ZAMPITELLA’S MOTION TO DISMISS
Zampitella also argues, irrespective of whether he is fraudulently joined, that the Court

should exercise its discretion under Fed. R. Civ. P. 21 to drop him as a party, which would cure

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Compare IRS, About Form W-2, Wage and Tax Statement (May 9, 2018),
https://www.irs.gov/forms-pubs/about-form-w2 with IRS, Forms and Associated Taxes for
Independent Contractors (Apr. 23, 2018), https://www.irs.gov/businesses/small-businesses-selfemployed/forms-and-associated-taxes-for-independent-contractors (explaining that Form 1099MISC is typically used to report wages of independent contractors).
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Plaintiff also argues that removal was improper because Zampitella did not agree to removal.
Vivint argues in response that it did not need consent of its co-defendant Zampitella because
Zampitella was fraudulently joined. Given the Court’s decision to remand the case, this issue
need not be addressed.
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the jurisdictional defect. “[I]t is well settled that Rule 21 invests district courts with authority to
allow a dispensable nondiverse party to be dropped at any time.” Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 832 (1989). The decision to dismiss a non-diverse party is within
discretion of the court, but this authority should be exercised “sparingly.” Casas Office Machs.,
Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 677 (1st Cir. 1994). “The decision to dismiss
‘revolves largely around whether the non-diverse litigant is a dispensable or indispensable
party.’” Carden, 775 F. Supp. 2d at 251 (quoting Am. Fiber & Finishing Inc. v. Tyco Healthcare
Grp., LP, 362 F.3d 136, 142 (1st Cir. 2004)).
Courts in other districts have held that it is improper for a court to use Rule 21 to drop a
party where the lack of complete diversity was apparent at the time of removal and where
defendants have failed to show fraudulent joinder. See, e.g., Rouse v. State Farm Mut. Auto. Ins.
Co., No. 1:14-cv-690, 2015 WL 3849648, at *5 (M.D.N.C. June 22, 2015); Sons of the
Revolution in N.Y., Inc. v. Travelers Indem. Co. of Am., No. 14 Civ. 03303(LGS), 2014 WL
7004033, at *2 (S.D.N.Y. Dec. 11, 2014); Phillips v. R.R. Dawson Bridge Co., No. 2:14-cv00480-LSC, 2014 WL 3970176, at *5 (N.D. Ala. Aug. 12, 2014); Brown v. Endo Pharm., Inc.,
38 F. Supp. 3d 1312, 1326 (S.D. Ala. 2014) (collecting cases). In Rouse, the court explained that
the application of Rule 21 would be inconsistent with the fraudulent joinder analysis, because
“[w]hile defendants bear a heavy burden in proving fraudulent joinder, they could succeed on a
Rule 21 motion on a far lesser standard simply by appealing to the court’s discretion.” Rouse,
2015 WL 3849648, at *5; see also R.R. Dawson, 2014 WL 3970176, at *5 (“If a defendant could
sever non-diverse defendants in order to establish removal jurisdiction, many defendants would
likely attempt to seek this post-removal action by the courts in order to avoid meting the burdens
associated with fraudulent joinder. Such a broad right would be inconsistent with the strict

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construction of the removal statute and the presumption in favor of remand.”).
Here, the lack of complete diversity was apparent at the time of removal because Plaintiff
and Zampitella are not diverse from one another. If the Court applied Rule 21 and dropped
Zampitella from the case, it would be allowing Defendants to succeed in retaining federal
jurisdiction over the case despite not being able to meet the heavy burden of proving fraudulent
joinder. See Rouse, 2015 WL 3849648, at *5. Accordingly, the Court declines to exercise its
discretion to drop Zampitella and denies his Rule 21 motion. 6
IV.

CONCLUSION
Accordingly, Plaintiff’s Motion to Remand [ECF No. 13] is GRANTED, Zampitella’s

Motion to Dismiss under Rule 21 [ECF No. 7] is DENIED, and Vivint’s Motion to Dismiss
under Rule 12(b)(6) [ECF No. 8] is DENIED as moot.
SO ORDERED.
August 20, 2018

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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Given that Plaintiff’s Motion to Remand is granted, the Court lacks subject matter jurisdiction
to decide Vivint’s Motion to Dismiss pursuant to 12(b)(6), and therefore denies it as moot.
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