SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



DIRK R. CASAGRANDE, )

)

Plaintiff, )

)



vs. ) CASE NO. ST-12-CV-733

)

ELIZABETH A. DUFFY, TRUSTEE OF THE )

ELIZABETH A. DUFFY LIVING TRUST and )

RED ROCK HOMEOWNER’S ASSOCATION, INC., _)

)

Defendants. )

)

MEMORANDUM OPINION



Pending before the Court is Defendant Elizabeth Duffy’s partial motion to dismiss.



For the following reasons, Defendant’s motion will be denied.



STANDARD



Fed. R. Civ. P. 12(b), made applicable to the Superior Court through SUPER.CT.

R. 7, provides that upon motion by the pleader, a claim, counterclaim, cross-claim, or

third party claim shall be dismissed when there is a “failure to state a claim upon which

relief can be granted” to the claimant. When determining whether the allegations in a



compliant are sufficiently pled, a court must engage in a three step inquiry:



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 Tp., 629 F.3d 121, 130 (3d Cir.2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

881 (2009)).

Casagrande v. Duffy, et al.

ST-12-CV-733



Memorandum Opinion, April 5, 2013

Page 2 of 2



A motion to dismiss a complaint should be denied if the factual allegations are “enough



to raise a right to relief above the speculative level.”



ANALYSIS



Defendant asserts that Count III of Plaintiff's Complaint entitled “Punitive

Damages” should be dismissed for failure to raise a claim upon which relief can be

granted. A “claim for punitive damages is not a distinct cause of action and ... is ...

improperly pled as a separate count.”? Notwithstanding, the facts pled in Count III

regarding punitive damages are repeated in the section of the Complaint where Plaintiff

makes requests for relief. As the content of Count III appears to be surplusage, the Court

will not dismiss Count III for failure to state a claim upon which relief can be granted and

will not require the Complaint be amended. In addition, in his request for relief, Plaintiff

has alleged enough facts* in support of his claim for punitive damages that raise a

plausible right of relief. Accordingly, Defendant’s motion will be denied.



An Order consistent with this Opinion will follow.



Dated: April J”, 2013 ~ a. > —



HON. MICHAEL C. DUNSTON

ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT

Clerk of Court / / OF THE VIRGIN ISLANDS



Donna D. Donovan



Court Clerk Supervisor 5 /< / D9 (S



? Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d. Cir. 2008). See also Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007).



3 McDonald v. Davis, 2009 U.S. Dist. LEXIS 17309, at *55-56, 2009 WL 1117651 (D.V.1.2009) (citing

Urgent v. Hovensa, LLC, 2008 U.S. Dist. LEXIS 77455, *31, 2008 WL 4526677 (D.V.1. Oct. 2, 2008)).

* For instance, Plaintiff has alleged that Defendant constructed a wall, generator, and weatherhead within

Plaintiff's right of way and failed to remove the structures upon request.