Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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AMPM, LLC and NORTH END )

MOTORS, INC., )

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Plaintiffs, )

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v. ) No. 1:25-cv-11133-JEK

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KIIT RENEWABLE ENERGY LLC, )

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Defendant. )

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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS

KOBICK, J.

Plaintiffs AMPM, LLC and North End Motors, Inc. brought this action against defendant

KIIT Renewable Energy LLC for breaching its contractual obligations to construct a canopy of

solar panels that sufficiently prevented rain, snow, and ice from falling onto their parking lot below.

Pending before the Court is KIIT’s motion to dismiss for failure to state a claim. For the reasons

that follow, the motion will be granted in part and denied in part. Because the plaintiffs have agreed

to dismiss their Chapter 93A and equitable relief claims, those claims will be dismissed. Their

other claims for breach of contract and breach of implied covenant of good faith and fair dealing

will proceed to discovery.

BACKGROUND

The following facts, assumed true on a motion to dismiss, are drawn from the complaint

and documents fairly incorporated by reference in that pleading. See Bazinet v. Beth Israel Lahey

Health, Inc., 113 F.4th 9, 15 (1st Cir. 2024).

AMPM owns property at 390 Turnpike Street in Canton, Massachusetts. ECF 1-2, ¶ 4.

North End rents that property to sell high-end used vehicles and automotive services. Id. ¶ 5. On

December 8, 2016, AMPM, North End, and KIIT entered into a sublease agreement. Id. ¶ 6; see

ECF 5-1. Under that agreement, KIIT agreed to pay the plaintiffs approximately $20,000 per year

in exchange for the privilege of constructing and operating a solar panel canopy over the property’s

parking lot. ECF 5-1, at 2 and § 2; see ECF 1-2, ¶ 6.

The installed canopy was supposed to protect North End’s cars from rain and snow, but its

panels did not prevent either from passing through to the vehicles parked below. ECF 1-2, ¶¶ 7, 9.

As a result, the parties amended the sublease agreement on September 13, 2018. Id. ¶¶ 6, 9; see

ECF 5-2. The amendment stated that KIIT would install a “water mitigation system” to “provide

reasonable gaskets between solar panels which will allow for normal and usual expansion and

contraction due to weather, temperature and other atmospheric conditions, while still providing a

reasonably semi-impermeable surface between the panels in order to reasonably shed rainwater

from the expansion and contraction area between the panels.” ECF 5-2, § 3 (emphasis altered); see

ECF 1-2, ¶ 10. KIIT also agreed that this system would provide “gutters on the edge of [the canopy]

to reasonably collect runoff from the [canopy]” and “downspouts from such gutters at reasonable

intervals . . . , taking the rainwater from such gutters and directing it down to the paved surface

below the [canopy].” ECF 5-2, § 3; see ECF 1-2, ¶ 10. The parties acknowledged in the amendment

“that due to the open sides of the solar arrays . . . and the need for wire and other pass-through

elements, as well as the nature of . . . natural expansion and contraction,” the water mitigation

system “is not, and cannot be designed and constructed to be[,] completely impermeable.” ECF

5-2, § 3.

The gaskets installed between the solar panels did not stop water or snow from penetrating

the canopy, prevent ice from building up or falling onto vehicles, or protect customers viewing

cars parked below. ECF 1-2, ¶¶ 11-12. KIIT indicated that it could add tape over the gaskets to

help seal the panels but, despite the plaintiffs’ repeated requests, has not done so. Id. ¶¶ 13-14, 16-

17. Consequently, rain continues to cause “a constant flow of water through the solar panel,” which

unreasonably interferes with the plaintiffs’ businesses and increases their liability. Id. ¶ 15. For

example, vehicles need to be de-iced before they can be shown to customers, and a customer has

fallen due to the buildup of ice. Id. The plaintiffs therefore allege that the solar canopy is not

“reasonably semi-impermeable” because “water continues to pour through” it, creating “a hazard

to both [p]laintiffs’ employees and customers.” Id. ¶¶ 20, 25.

AMPM and North End filed this action in Norfolk Superior Court in February 2025.

ECF 1-2. Their complaint asserts claims for breach of contract (Count I), breach of the implied

covenant of good faith and fair dealing (Count II), a violation of M.G.L. c. 93A (Count III), and

equitable relief (Count IV). Id. ¶¶ 18-37. Invoking diversity jurisdiction, KIIT removed the case to

this Court in April 2025. ECF 1. KIIT moved to dismiss the complaint for failure to state a claim

in May 2025. ECF 4. After receiving the plaintiffs’ opposition and further briefing from the parties,

the Court held a hearing and took the motion under advisement. ECF 9, 12, 13, 15.

STANDARD OF REVIEW

In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court

must determine “whether, construing the well-pleaded facts of the complaint in the light most

favorable to the plaintif[f], the complaint states a claim for which relief can be granted.” Cortés-

Ramos v. Martin-Morales, 956 F.3d 36, 41 (1st Cir. 2020) (quoting Ocasio-Hernández v. Fortuño-

Burset, 640 F.3d 1, 7 (1st Cir. 2011)). The complaint must allege “a plausible entitlement to relief.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While

legal conclusions can provide the framework of a complaint, they must be supported by factual

allegations.” Id. at 679. The Court “may properly consider only facts and documents that are part

of or incorporated into the complaint.” Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 15

(1st Cir. 2009) (quotation marks omitted).

DISCUSSION

After KIIT filed its motion to dismiss, the plaintiffs agreed to dismiss the Chapter 93A

claim without prejudice to preserve their ability to amend the complaint should discovery produce

evidence of unfair and deceptive trade practices by KIIT. ECF 9, at 1 n.1. They further agreed to

dismiss their equitable relief claim because the complaint separately requests removal of the solar

canopy as a form of equitable relief. Id.; see ECF 1-2, at 7. Counts III and IV are dismissed

accordingly.

I. Breach of Contract.

Count I asserts a breach of contract claim against KIIT. To sustain this claim, AMPM and

North End must allege that (1) there was an agreement among the parties; (2) the agreement was

supported by consideration; (3) they were ready, willing, and able to perform their part of the

contract; (4) KIIT committed a breach of the contract; and (5) they suffered harm as a result.

Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690 (2016). According to the complaint, the

parties entered into a sublease agreement that, as amended, required KIIT to add “gaskets between

solar panels” that would “provid[e] a reasonably semi-impermeable surface between the panels in

order to reasonably shed rainwater from the expansion and contraction area between the panels.”

ECF 5-2, § 3; see ECF 1-2, ¶ 10. KIIT also agreed to install “gutters on the edge of [the canopy]

to reasonably collect runoff from the [canopy].” ECF 5-2, § 3; see ECF 1-2, ¶¶ 10, 19. Yet “water

continues to pour through the canopy,” and “the gutter system does not properly direct water away

from the canopy area.” ECF 1-2, ¶ 20. Consequently, the plaintiffs’ businesses are negatively

impacted. Id. ¶¶ 15, 20.

KIIT contends that the complaint fails to allege a breach of the contractual provision

requiring a “reasonably semi-impermeable” canopy. In its view, that phrase unambiguously means

that some precipitation can fall from the solar canopy to the parking lot below, and the complaint

confirms that the canopy provides such partial protection. See ECF 5, at 5-7. The Court disagrees.

“Determining the existence of a contract ambiguity presents a question of law for the

court.” Bank v. Thermo Elemental Inc., 451 Mass. 638, 648 (2008). Contractual language is

ambiguous if “‘the phraseology can support a reasonable difference of opinion as to the meaning

of the words employed and the obligations undertaken.’” A.L. Prime Energy Consultant, Inc. v.

Massachusetts Bay Transportation Auth., 479 Mass. 419, 431 (2018) (quoting id.). To assess

whether such language is ambiguous, the Court “look[s] both to the contested language and to the

text of the contract as a whole.” Balles v. Babcock Power Inc., 476 Mass. 565, 572 (2017).

Here, the phrase “reasonably semi-impermeable” is ambiguous because it can plausibly be

interpreted in multiple ways. KIIT is correct that the term cannot mean impermeable, because the

parties in the sublease amendment acknowledged that the water mitigation system “cannot be

designed and constructed to be completely impermeable and will not completely shelter the areas

below the [canopy].” ECF 5-2, § 3. Nor can the term be interpreted as permeable, to mean that the

canopy does not stop any precipitation. There is a wide gray area, however, between impermeable

and permeable. The phrase “reasonably semi-impermeable,” which is not defined in the agreement

or in any dictionary, does not specify how much rain or snow can pass through the canopy. See

ECF 9, at 8. It need not mean, as KIIT argues, that any amount of precipitation through the canopy

is permissible. The phrase is, instead, inherently ambiguous, reflecting an undefined range of

acceptable precipitation. While the complaint does not identify what percentage of precipitation

comes through the canopy, its allegation that “there has been a constant flow of water through the

solar panel gaskets that is continuous in rainy weather” is sufficient to state a claim that KIIT

breached its contractual commitment to provide a “reasonably semi-impermeable” canopy. ECF

1-2, ¶ 15. The meaning of the phrase “reasonably semi-impermeable,” together with the question

whether KIIT breached the sublease amendment by failing to provide a reasonably semi-

impermeable canopy, are questions for the finder of fact, not questions appropriate for resolution

on a motion to dismiss. See Browning-Ferris Indus., Inc. v. Casella Waste Mgmt. of Massachusetts,

Inc., 79 Mass. App. Ct. 300, 307 (2011) (“Once a contractual ambiguity emerges, the meaning of

the uncertain provision becomes a question of fact for the trier.”).

KIIT separately argues that the plaintiffs do not allege a breach of the contractual provision

requiring it to provide “gutters on the edge of [the canopy] to reasonably collect runoff from the

[canopy]” and “downspouts from such gutters at reasonable intervals . . . , taking the rainwater

from such gutters and directing it down to the paved surface below the [canopy].” ECF 5-2, § 3.

But the complaint alleges that “the gutter system does not properly direct water away from the

canopy area.” ECF 1-2, ¶ 20. It further alleges that the water mitigation system as a whole,

including the gutters, has caused “a constant flow of water” and, in turn, “an unreasonable

interference with [the plaintiffs’] business and . . . increased liability issues for both [p]laintiffs.”

Id. ¶ 15. Yet KIIT agreed in the sublease amendment that the solar panel installation would “not

unreasonably interfere with [the plaintiffs’] ongoing business operations.” ECF 5-2, § 3. Taken

together, these allegations give rise to a plausible claim that KIIT violated its contractual

obligations for the canopy’s gutter system. Accordingly, the breach of contract claim will not be

dismissed.

II. Breach of Implied Covenant of Good Faith and Fair Dealing.

Count II asserts a claim for breach of the implied covenant of good faith and fair dealing.

While “‘[e]very contract implies good faith and fair dealing between the parties to it,’” this implied

“covenant does not create new rights and duties not already provided for in the contract.” Columbia

Plaza Assocs. v. Ne. Univ., 493 Mass. 570, 586 (2024) (quoting Anthony’s Pier Four, Inc. v. HBC

Assocs., 411 Mass. 451, 471 (1991)). It does, however, “‘requir[e] that neither party shall do

anything that will have the effect of destroying or injuring the right of the other party to the fruits

of the contract.’” Buffalo-Water 1, LLC v. Fid. Real Est. Co., LLC, 481 Mass. 13, 27 (2018)

(quoting T.W. Nickerson, Inc. v. Fleet Nat’l Bank, 456 Mass. 562, 570 (2010)). Although the

plaintiffs need not plead bad faith, they must allege “‘a lack of good faith,’” which “‘can be inferred

from the totality of the circumstances.’” A.L. Prime, 479 Mass. at 434 (quoting Robert & Ardis

James Found. v. Meyers, 474 Mass. 181, 189 (2016)). “Lack of good faith ‘carries an implication

of a dishonest purpose, conscious doing of wrong, or breach of duty through motive of self-interest

or ill will.’” Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 238 (1st Cir. 2013) (quoting Hartford

Acc. & Indem. Co. v. Millis Roofing & Sheet Metal, Inc., 11 Mass. App. Ct. 998, 999 (1981)).

KIIT contends that the complaint does not plausibly allege lack of good faith. But this

argument ignores the complaint’s factual allegations that KIIT has “injur[ed] the right of the

[plaintiffs] to the fruits of the contract.” Buffalo-Water, 481 Mass. at 27 (quotation marks omitted).

As discussed, KIIT agreed to install a “reasonably semi-impermeable” canopy that would “not

unreasonably interfere with [the plaintiffs’] ongoing business operations.” ECF 5-2, § 3. Yet, the

complaint alleges, the canopy “interfere[s] with . . . North End’s business and creates a hazard for

both [p]laintiffs’ employees and customers” because “water continues to pour through” it onto the

parking lot below. ECF 1-2, ¶ 25. Based on “the totality of the circumstances,” the plaintiffs have

adequately alleged that KIIT has “violate[d] the[ir] reasonable expectations” from the amended

sublease agreement. A.L. Prime, 479 Mass. at 434 (quotation marks omitted). Their claim for

breach of the implied covenant of good faith and fair dealing will therefore survive.

CONCLUSION AND ORDER

For the foregoing reasons, KIIT’s motion to dismiss, ECF 4, is GRANTED with respect to

Counts III and IV but DENIED as to Counts I and II.

SO ORDERED.

/s/ Julia E. Kobick

JULIA E. KOBICK

Dated: October 28, 2025 UNITED STATES DISTRICT JUDGE