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aree 4 ES RANDY GERMAINE i i ' ff ras ii 5 re fa een nace | NAOMI DOWDYE, VINCENT SARGENT . AND DOREEN SARGENT | Plaintiff breached this lease, and thus owes her, Dowdye, the. IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX AT CHRISTIANSTED PLAINTIFF | - CIVIL NO. 745/1982 VS. ACTION FOR DAMAGES DEFENDANTS _ ee ee ed MEMORANDUM: OPINION (November /7, 1982) a FRANK FORD, III, Esq. No. 1. Strand Street Frederiksted, St. Croix --Attorney for Plaintiff BERTRAM L. CHARLES, ESQ. 38 King Street Christiansted, St. Croix --Attorney for Defendants SILVERLIGHT, Judge “¢ This matter is before the Court on Plaintiff's Motion to Dismiss defendant Naomie Dowdye's counterclaim for failure -to state a cause of action pursuant to Fed. R. Civ. P. 12(b) (6). FACTS On July 8, 1982 plaintiff Randy Germaine was allegedly involved in an altercation with defendants Naomie Dowdye, Vincent Sargent and Doreen Sargent during which Dowdye allegedly scratched plaintiff's hand and shouted that. he was a thief. Plaintiff alleges that as a result of Dowdye's conduct he has | suffered embarassment, anxiety, mental anguish and irreparable damage to his image in the community. Dowdye has counterclaimed | . alleging in Count I, among other things, the. existence of an oral | lease agreement between herself and plaintiff. She asserts that ‘R..Civ. P. 8(a) which sets forth the requirements for pleading | Mortensen v. First Ped. Savings & Loan Association 549 F.2d 884 GERMAINE V. DOWDYE, ET AL. MEMORANDUM OPINION : PAGE 2 ' gum of $3,300.00 in rent arrears. In Count II of the counterclaim Dowdye alleges that on or about July 1, 1982, having found the leased premises abandoned, she requested that plaintiff surrender the keys. She asserts that Plaintiff, however, intentionally, . wilfully and maliciously refused to do so and as a result - . - forced plaintiff to use the window to enter and exit the premises. : | As a result of plaintiff's act, Dowdye alleges mental pain and | emotional distress. DISCUSSION A Fed. R. Civ. P. 12(b) (6) motion is used to test the formal sufficiency of the statement of the claim for relief... Therefore, this provision must be read in conjunction with Fed. a claim.... 5 C. WRIGHT & A. ‘MILLER, Federal Practice: & Procedure: Civil §1356, at 590. Rule 8(a) requires that "[a] pleading which | sets forth a claim for relief, whether an original claim, :counter- claim, or a third-party claim, shall contain...a short and plain. | Statement of the claim showing that the pleader is entitled to relief". FED. R. CIV. P. 8{a). It is only when. the pleading fails to meet this liberal standard that it is subject to dismissa: under Rule 12(b) (6). See 5 C. WRIGHT & A. MILLER, supra. The motion is available to test the claim for relief in. any pleading including a counter-claim. Walker v. Process Equipment, Inc. v. Food Mach. & Chem. Corp. 382.U.S. 172 (1965); PED. R. CIV. P. 12° (b) (6) . | me din eee In deciding a motion to dismiss for failure to state a cause of action the Court construes the allegations in the claim for relief (in this case the counterclaim) in the light most favorable to the pleader. Scheuer v. Rhodes, 416 U.S. 232 (1974):; Leone v. Aetna Cas. & Sur. Co., 599 F.2d 566 (3d Cir. 1979); (3d Cir. 1977). In other words, the question is whether, in the GERMAINE V. DOWDYE, ET AL. MEMORANDUM OPINION } light most favorable to the pleader, and with every doubt resolved F required to accept as “true all well-pleaded facts and allegations. 5 C. WRIGHT & A. MILLER, supra §1357, at 601. “The Court's tute a statement of'claim under Rule 8(a). Landy v. F.D.1.C., 486 F.2d 139, 160. (3d Cir.), cert. denied, 416 U.S. 960 (1973). ' The Court, however, in considering the motion to dismiss is not ‘in his behalf, the pleading states any valid claim for relief inquiry is focused specifically on whether the allegations consti~ t 4 7 Courts are not required to accept legal or unsupported conclusions, Islands, 3 V.I. 399, 167 F. Supp. 702 (D.V.I. 1958); Phaire v i a elt at fi ce 4 f Zé as f i: F ik tH ' technical grounds. _ counterclaim stating that Count I contemplates an action arising f ! is vt i I in i il . : limited number of particular matters require special pleadings. ‘See also C. WRIGHT «& A. MILLER, supra §1221, at 149, However the ; , Mee 3 V.I. 320, 167 F. Supp. 710. (D.V.T. 1958)... 5 C. WRIGHT of Rule 8, few complaints fail to meet the outlined standard. . | Furthermore, in view of the Third Circuit's oft stated view that / cases should be disposed of on their substantive merits, this | Court is even more reluctant to deny claims based purely on ; or unwarranted inferences or deductions 3 Cc. WRIGHT & A. MILLER, supra, at 594-96. See also Felix v. Government of the Virgin & A. MILLER, supra, at 596. A motion to dismiss for failure to. state a claim is viewed with disfavor and rarely granted. Baséd on the requirement “Ha In the instant case plaintiff attacks Count I of Dowdye''s 2/ out or an oral lease agreement which is barred by 28 V.I.C. 242..— 1/ ~ Basically the Court will accept the pleader's descrip- , tion of what occurred along with any conclusion that can be |, reasonably drawn therefrom. However, the Court will not accept ' conclusory allegations on the legal effect of the events , Plaintiff has set out. 2/ The Court is cognizant that under Fed. R. Civ. P. 9a | Court feels Rule 9 is inapplicable in the case at bar. ti ; i i * . denied, 385 U.S. 1034 (1968). See also C. WRIGHT & A. MILLER, oon comer: eos -him to relief". Phillip Evans v. Bank of Nova Scotia, Civ. No. | Dated: November /? , 1982 ft. H ii I> writing which is signed by the appropriate party. _ alleging that it is defective because it fails to state that ‘ emotional distress suffered by the defendant is "severe". ‘Generally there is no "particular or precise language that must: sufficient if the adverse party. is put. on notice of the basis of , the suit or the legally cognizable claim against her. United | States v. Provident Nat. Bank, 259 F.Supp. 373. (D. Pa.) ,. cert, ‘supra, at 594, It is the Court's conclusion that the pleading ‘Court has held that a Rule 12(b) (6). dismissal should only be. _allowed where "it appears beyond doubt that the... [pleader] can . , 82-459 slip op. at 4. (Terr. Ct. Div. St. Croix Oct. 1, 1982) © ' Dismiss Dowdye's counterclaim will be denied. GERMAINE V. DOWDYE, ET AL. MEMORANDUM OPINION . However, there is no indication that the oral agreement between the parties was for a longer period than one year or that there is a total absence of a contract or some note or memorandum in. - Furthermore, plaintiff attacks Dowdye's second Count the conduct complained of was "extreme or outrageous" or that the 3/: be pleaded in order to give rise to a cause of action. It is | in the case at bar accomplishes both of the above. The Supreme prove no set of facts in support of his claim which would entitle (quoting Conley v. Gibson, 355 U.S. 41, 45-46 -(1952)), For the reasons articulated herein, the Court holds that this is not the situation in this case. As .a.result, Plaintiff's Motion to ~- Enter: (ae: Ne - ““IRWIN JS SILVERLIGHT, JUDGE See supra note 2,