George v. George

59 V.I. 1092, 2013 WL 4013841, 2013 U.S. Dist. LEXIS 108482
CourtDistrict Court, Virgin Islands
DecidedAugust 2, 2013
DocketCivil No. 2012-98
StatusPublished
Cited by2 cases

This text of 59 V.I. 1092 (George v. George) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George v. George, 59 V.I. 1092, 2013 WL 4013841, 2013 U.S. Dist. LEXIS 108482 (vid 2013).

Opinion

GÓMEZ, Chief United States District Judge

MEMORANDUM OPINION

(August 2, 2013)

Before the Court is the motion of the defendant to dismiss this matter.

[1096]*1096I. FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 1991, Herbert R. George (“Herbert George”); Marilyn Esther George (“Marilyn George”); and Ernest R. George (“Ernest George”) acquired as joint tenants, with survivorship rights, certain real property described as:

Parcel No. 60-U Estate Bolongo, No. 3 Frenchman’s Bay Quarter, St. Thomas, Virgin Islands, as shown on O.L.G. File No. D9-5049-T91

(Compl. ¶ 5) (the “Property”).1

On September 8, 2011, Herbert George died. As the Property is held in joint tenancy, Ernest George and Marilyn George each now possess an undivided half interest in the Property.

Ernest George initiated this action against Marilyn George on December 31, 2012. He seeks to partition the Property by sale.

Marilyn George now moves to dismiss this matter. She asserts that the Court lacks jurisdiction because there is not a sufficient amount in controversy. In the alternative, she asserts that Ernest George has failed to state a claim for which relief may be granted. She also asserts that Ernest George has failed to name an indispensable party.

II. DISCUSSION

A. Subject-Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject-matter jurisdiction. A Rule 12(b)(1) motion may be treated either as a facial or a factual challenge to the court’s subject-matter jurisdiction. Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). In considering a facial challenge to subject-matter jurisdiction under Rule 12(b)(1), all material allegations in the complaint are taken as true. Id. at 891-92; see also Taliaferro v. Darby Township. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (summarizing the standard for facial attacks under Rule 12(b)(1) as “whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court”).

[1097]*1097“A factual jurisdictional proceeding cannot occur until plaintiff’s allegations have been controverted.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 892 n.17 (3d Cir. 1977).

Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction — its very power to hear the case there — is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Id. at 890.

B. Failure to State a Claim

When reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court construes the complaint “in the light most favorable to the plaintiff.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the non-moving party. Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004).

A complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citation and internal quotation marks omitted).

In Bell Atlantic v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), the Supreme Court set forth the standard for overcoming a motion to dismiss. A plaintiff is required to allege in the complaint “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A complaint satisfies the plausibility standard when the factual pleadings “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 556). This [1098]*1098standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “ ‘merely consistent with’ a defendant’s liability,... ‘stops short of the line between possibility and plausibility of “entitlement of relief.” ’ ” Id. (citing Twombly, 550 U.S. at 557).

To determine the sufficiency of a complaint the Court must take the following three steps:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 674, 679); see also Great W. Mining & Min. Co. v. Rothschild LLP, 615 F.3d 159, 111 (3d Cir. 2010.).

C. Indispensable Party

Federal Rule of Civil Procedure 12(b)(7) permits the dismissal of a complaint for “failure to join a party under Rule 19.” FED. R. Civ. P. 12(b)(7). Federal Rule of Civil Procedure 19 (“Rule 19”) requires the joinder of certain parties under certain enumerated circumstances. Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d Cir. 2007).

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61 V.I. 480 (Supreme Court of The Virgin Islands, 2014)

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Bluebook (online)
59 V.I. 1092, 2013 WL 4013841, 2013 U.S. Dist. LEXIS 108482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-george-vid-2013.