DISTRICT COURT OF THE VIRGIN ISLANDS 
DIVISION OF ST. THOMAS AND ST. JOHN 
 
BANK OF NOVA SCOTIA, 
 
Plaintiff, 
 
v. 
 
ANDREA M. DEAN, “JOHN DOE,” 
being the unknown heirs of JAMES 
J. DEAN holding interest in 
Parcel No. 6-6 Estate Contant, 
No. 2 Cruz Bay Quarter, St. 
John,1 U.S. Virgin Islands, 
TROPICAL BREEZE DEVELOPMENT, LLC 
and WILLIAMS CONSTRUCTION 
COMPANY, 
 
Defendants. 
 
 
WILLIAMS CONSTRUCTION COMPANY, 
 
               Cross Claimant, 
 
               v. 
 
JAMES DEAN, ANDREA M. DEAN, 
“JOHN DOE,” being the unknown 
heirs of JAMES J. DEAN holding 
interest in Parcel No. 6-6 
Estate Contant, No. 2 Cruz Bay 
Quarter, St. John, U.S. Virgin 
Islands, TROPICAL BREEZE 
DEVELOPMENT LLC, 
 
         Cross Claim Defendants.
 
WILLIAMS CONSTRUCTION COMPANY, 
 
               Counter Claimant,
 
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Civil No. 2011-64 
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1 “JOHN DOE,” being the unknown heirs of JAMES J. DEAN holding interest in 
Parcel No. 6-6 Estate Contant, No. 2 Cruz Bay Quarter, St. John, was 
voluntarily dismissed by Bank of Nova Scotia on July 4, 2011. 
Case: 3:11-cv-00064-CVG-RM   Document #: 81   Filed: 03/31/14   Page 1 of 8
Bank of Nova Scotia v. Dean, et al. 
Civil No. 2011-64 
Order 
Page 2 
 
               v. 
BANK OF NOVA SCOTIA, 
 
        Counter Claim Defendant.
 
TROPICAL BREEZE DEVELOPMENT, 
LLC, 
            Cross Claimant, 
 
            v. 
 
WILLIAMS CONSTRUCTION COMPANY, 
 
          Cross Claim Defendant.
 
 
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ATTORNEYS: 
 
Matthew J. Duensing, Esq. 
Stryker, Duensing, Casner & Dollison 
St. Thomas, VI 
 
For Bank of Nova Scotia. 
 
Nagesh V. Tammara, Esq. 
Smock & Moorehead 
Kyle R. Waldner, Esq. 
Quintairos, Prieto, Wood & Boyer, P.A. 
St. Thomas, VI 
For Andrea M. Dean. 
 
Benjamin A. Currence, Esq. 
Law Offices of Benjamin A. Currence 
St. Thomas, VI 
For Tropical Breeze Development, LLC. 
 
Leslie L. Payton, Esq. 
The Payton Law Firm 
St. Thomas, VI 
For Williams Construction Company. 
 
 
 
 
 
 
Case: 3:11-cv-00064-CVG-RM   Document #: 81   Filed: 03/31/14   Page 2 of 8
Bank of Nova Scotia v. Dean, et al. 
Civil No. 2011-64 
Order 
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MEMORADUM OPINION AND ORDER 
 
 
Before the Court is the motion to dismiss filed by the 
plaintiff, the Bank of Nova Scotia (“BNS”). BNS asks this Court 
to dismiss the counterclaim of Williams Construction Company 
(“Williams”). 
I. FACTUAL AND PROCEDURAL BACKGROUND 
Tropical Breeze Development, LLC (“Tropical”) is a limited 
liability corporation incorporated in the Virgin Islands. James 
J. Dean is the sole member of Tropical. Tropical is the record 
owner of property described as:  
Parcel No. 6-6, Estate Contant, No. 2 Cruz Bay 
Quarter, St. John, Virgin Islands, as shown on 
PWD No. B9-451-T75 
 
(the "Property"). On August 1, 2007, James J. Dean and Andrea M. 
Dean (“the Deans”) borrowed $1,200,000 from BNS to construct a 
residence on the Property. The loan was evidenced by a 
promissory note (the “Note”), which the Deans executed and 
delivered to BNS on August 1, 2007. Pursuant to the Note, the 
Deans were to repay BNS in 60 consecutive monthly installments. 
Simple interest accrued on the loan at the rate of 7.99% each 
year. The Note permits BNS to accelerate payment due in the 
event the Deans failed to make timely payments.  
 
The Note was secured by a first priority mortgage of the 
same date (the "Mortgage"). The Mortgage was executed by 
Case: 3:11-cv-00064-CVG-RM   Document #: 81   Filed: 03/31/14   Page 3 of 8
Bank of Nova Scotia v. Dean, et al. 
Civil No. 2011-64 
Order 
Page 4 
 
Tropical, by and through James J. Dean as its sole member. The 
Mortgage was recorded at the Office of the Recorder of Deeds for 
St. Thomas on August 1, 2007. The Mortgage is attached to the 
Property. The Mortgage terms give BNS the right to foreclose on 
the Property in the event of default on the loan. Also on August 
1, 2007, Tropical Breeze Development, LLC (“Tropical”) executed 
an unlimited corporate guarantee securing payment of the Note.  
 
Subsequently, the Deans engaged Williams to construct a 
residence on the Property. The Deans failed to pay Williams. 
Williams claims the Deans are indebted to it in the amount of 
$295,000. Williams further claims it has a lien on the Property 
in the amount of $295,000.  
 
The Deans are in default under the terms and conditions of 
the Note and Mortgage because they failed to pay the principal 
and interest when due. When the Deans went into default, BNS 
declared the entire unpaid principal with accrued interest due 
and payable. The Deans were indebted to BNS in the amount of 
$1,258,789.06 as of March 12, 2013. Interest continues to accrue 
thereafter at the rate of 7.99% until the date of judgment and 
at the judgment rate thereafter.  
 
BNS filed the instant debt and foreclosure matter against 
the Deans, Tropical, and Williams, on June 13, 2011. BNS 
requested relief in the form of a debt judgment, a finding that 
Case: 3:11-cv-00064-CVG-RM   Document #: 81   Filed: 03/31/14   Page 4 of 8
Bank of Nova Scotia v. Dean, et al. 
Civil No. 2011-64 
Order 
Page 5 
 
BNS holds a first priority lien, foreclosure, and a deficiency 
judgment if necessary.  
 
Thereafter, Williams filed an answer containing a 
counterclaim against BNS and a crossclaim against the Deans. 
Williams claimed that it has a construction lien against the 
Property in the amount of $295,000. Williams asked the Court to 
declare that Williams has a co-first priority lien with BNS.  
 
II. 
DISCUSSION 
 
To survive a motion to dismiss, a claimant must offer 
“enough facts to state a claim to relief that is plausible on 
its face.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 
(2007). A court must ask whether the claim “contain[s] either 
direct or inferential allegations respecting all the material 
elements necessary to sustain recovery under some viable legal 
theory.” Id. at 1969. “When deciding a 12(b)(6) motion to 
dismiss, the counterclaim must be read in a light most favorable 
to the counterclaimant, and all of the factual allegations must 
be taken as true.” Gov't Guarantee Fund of Republic of Finland 
v. Hyatt Corp., 955 F. Supp. 441, 448 (D.V.I. 1997); citing 
Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).  
 
“While a [claim] attacked by a Rule 12(b)(6) motion to 
dismiss does not need detailed factual allegations, a 
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Bank of Nova Scotia v. Dean, et al. 
Civil No. 2011-64 
Order 
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[claimant’s] obligation to provide the ‘grounds’ of his 
‘entitlement to relief’ requires more than labels and 
conclusions, and a formulaic recitation of a cause of action’s 
elements will not do.” Id. at 1964-65 (internal citations 
omitted).  
 
Thus, “[t]o survive a motion to dismiss, a . . . [claimant] 
must allege facts that ‘raise a right to relief above the 
speculative level on the assumption that the allegations in the 
[counterclaim] are true (even if doubtful in fact).’” Victaulic 
Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell 
Atlantic Corp., 127 S. Ct. at 1965).  
 
The Third Circuit has cautioned that 
conclusory or bare-bones allegations will no 
longer survive a motion to dismiss: threadbare 
recitals of the elements of a cause of action, 
supported by mere conclusory statements, do not 
suffice. To prevent dismissal, all civil 
complaints must now set out sufficient factual 
matter to show that the claim is facially 
plausible. This then allows the court to draw 
the reasonable inference that the defendant is 
liable for the misconduct alleged. The Supreme 
Court's ruling in Iqbal emphasizes that a 
plaintiff must show that the allegations of his 
or her complaints are plausible. 
 
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) 
(citing Ashcroft v. Iqbal, 556 U.S. 662, 677-679; Twombly, 550 
U.S. 544, 555 n. 3) (internal citations and quotations omitted). 
III. ANALYSIS 
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Bank of Nova Scotia v. Dean, et al. 
Civil No. 2011-64 
Order 
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Although the Court accepts all factual assertions in 
Williams’s counterclaim as true, the Court is not required to 
accept Williams’s legal conclusions as true.  
 
Williams requests in conclusory fashion that the Court 
enter judgment “[d]eclaring that the Williams Construction 
Company has a co-first priority lien against James Dean, Andrea 
M. Dean, and Tropical Breeze Development, LLC, with Bank of Nova 
Scotia.” To withstand BNS’s motion to dismiss, Williams must 
make “direct or inferential allegations respecting all the 
material elements necessary to sustain recovery under some 
viable legal theory.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 
1955, 1969 (2007). 
 
In its answer and counterclaim, Williams indicates that it 
has a lien against the Property. Significantly, Williams has 
provided no information when it recorded a notice of 
construction lien on the Property. Without this information, 
Williams fails to state a claim on which relief can be granted. 
The deficiency, while significant, is not necessarily fatal, to 
the extent this deficiency can be cured by amendment. The Court 
is not convinced that such an amendment would be futile.   
 
The premises considered, it is hereby 
 
ORDERED that BNS’s motion to dismiss is DENIED; it is 
further 
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Bank of Nova Scotia v. Dean, et al. 
Civil No. 2011-64 
Order 
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ORDERED that Williams shall, no later than April 14, 2014, 
amend its counterclaim against BNS; and it is further 
  
ORDERED that, should Williams fail to amend its 
counterclaim, its counterclaim may be dismissed for failure to 
state a claim on which relief may be granted. 
 
S\ 
 
 
 
 
    CURTIS V. GÓMEZ 
    District Judge 
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