IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. CROIX AT CHRISTIANSTED



PHILLIP EVANS,

Plaintiff, CIVIL NO. 459/1982



ACTION FOR RECISSION AND



VS. DAMAGES



JURY TRIAL DEMANDED



BANK OF NOVA SCOTIA,

GERALDINE SIMPSON, individually)

and as Employee of the BANK OF )

NOVA SCOTIA, and BETTY )

CHRISTENSEN, Individually and )

as Employee of the BANK OF NOVA)

SCOTIA, )



)

Defendants. )

)



EDWARD HASKINS JACOBS, ESQUIRE

14 ABA Church Street

Christiansted, St. Croix



U.S. Virgin Islands 00820

(809) 773-3322



(Attorney for Plaintiff)



SCOTT SILVERLIGHT, ESQUIRE



Isherwood, Hunter & Diehm



#46 King Street



Christiansted, St. Croix



U.S. Virgin Islands 00820



(809) 773-3535



(Attorney for Defendant Bank of Nova Scotia)



JOHN F. JAMES, ESQUIRE



James & Resnick



1-A King Street



Christiansted, St. Croix



U.S. Virgin Islands 00820



(809) 773-0402



{Attorney for Defendant Simpson)



MELVIN H. EVANS, JR., ESQUIRE



P.O. Box 3060



46-47 Company Street _

Christiansted, St. Croix



U.S. Virgin Islands 00820



(809) 773-0140



(Attorney for Defendant Christensen)



PETERSEN, Judge



MEMORANDUM OPINION

October / , 1982



The present action came to this Court on a complaint

by the Plaintiff charging all Defendants with negligence,

fraud, intentional fraudulent misrepresentation and other



conduct, in connection with several loan transactions, which

EVANS vs. BANK OF NOVA SCOTIA ETAL

CIVIL NO. 459/1982



ACTION FOR RECISSION AND DAMAGES

Page 2



conduct allegedly violated the Federal Truth in Lending Act.

The Bank of Nova Scotia has filed an answer, but both

Defendants Simpson and Christensen have filed motions to

dismiss. These motions to dismiss are hereby denied.



Defendant Christensen's motion to dismiss will be



 @ealt with first, as there is a procedural question whether it



should be treated as a request for dismissal for failure to

state a claim upon which relief can be granted under Rule

12(b) (6) of the Federal Rules of Civil Procedure, or as a

request for summary judgment under Rule 56, F.R.C.P. This

Defendant's motion is entitled "Motion to Dismiss," and it

states that the Defendant "moves the Court pursuant to Rule

12(b) (6) and Rule 56 of the Federal Rules of Civil Procedure

for an order dismissing this matter." In Plaintiff's

opposition to this motion, he states that he "opposes the

Motion for Summary Judgment...which was styled as a Motion to

Dismiss."



Federal Rule of Civil Procedure 12 was amended in

1948. This amendment added the last sentence of Rule 12(b),

and provides that a Rule 12(b)(6) motion to dismiss for

failure to state a claim shall be converted into a Rule 56

motion for summary judgment whenever “matters outside the



pleading are presented to and not excluded by the court...."



(emphasis added). Fed. R. Civ. P.12. See also C. Wright & A.

Miller, Federal Practice and Procedure: Civil, Sections 1366,

2713. Thus, a 12(b) (6) motion is to be considered a motion

for summary judgment only when factual matters are presented

in affidavits or other "“outside" material, and the court

specifically relies on this matter. "The court has complete

discretion to determine whether or not to accept any material

beyond the pleadings that is offered in conjunction with a



Rule 12(b) (6) motion." Wright. & Miller, supra, Section 1366.



The Wright and Miller treatise further explains that this

EVANS vs. BANK OF NOVA SCOTIA ETAL

CIVIL NO. 459/1982



ACTION FOR RECISSION AND DAMAGES

Page 3



discretion will be exercised pursuant to the court's

determination of whether or not the outside material, and the

subsequent conversion from Rule 12(b) (6) to a Rule 56 motion,

will facilitate disposition of the action. "When the

extra-pleading material is comprehensive and will enable a

rational determination of a summary judgment motion, the Court

is likely to accept it; when it is scanty, incomplete, or

inconclusive, the court probably will reject it." Wright



& Miller, supra, Section 1366.



This Court will not treat Christensen's motion to

dismiss as a motion for summary judgment. Although this

Defendant has submitted an affidavit along with the motion to

dismiss, the affidavit does not resolve any issues of material

fact. Therefore it cannot support a motion for summary

judgment. As a result, the outside matter proffered in the

affidavit will be excluded, and this Court refuses to accept

it or consider it in ruling on the 12(b) (6) motion to dismiss.



Having determined that Defendant Christensen's

motion is a 12{b)(6) motion to dismiss, as is Defendant

Simpson's, both motions for dismissal will bebdented for the

same reasons. The standard for determining the sufficiency of

a complaint when faced with a Rule 12(b) (6) motion to dismiss

was stated by the Supreme Court as follows: "When a federal

court reviews the sufficiency of a complaint, before the

reception of any evidence either by affidavit or admission,

its task is necessarily a limited one. The issue is not

whether a Plaintiff will ultimately prevail but whether the



claimant is entitled to offer evidence to support the



claims.... Moreover, it is well established that, in passing

on a motion to dismiss ... the allegations of the complaint

should be construed favorably to the pleader.” Scheuer v.



Rhodes, 416 U.S. 232, 236 (1974). Looking at the complaint in



a light most favorable to the Plaintiff, there appears to be

EVANS vs. BANK OF NOVA SCOTIA ETAL

CIVIL NO. 459/1982



ACTION FOR RECISSION AND DAMAGES

Page 4



no good reason why he should not be permitted to offer

evidence to prove his claims against Christensen and Simpson.

The Plaintiff alleges that both Defendants defrauded him and

were instrumental in various violations of the Federal Truth

in Lending Act as it relates to personal loans obtained by the

Plaintiff from the Defendant Bank of Nova Scotia. In Conley

v. Gibson, 355 U.S. 41, 45-46 (1957), the Supreme Court held

that a Rule 12(b)(6) dismissal should only be allowed where

"it appears beyond doubt that the Plaintiff can prove no set

of facts in support of his claim which would entitle him to

relief." Such is not the case here. For that reason, and

also because this Court is concerned only with the sufficiency

of the allegations in the complaint and is disinclined to

dismiss a case on the pleadings, the motions of Defendants

Christensen and Simpson to dismiss for failure to state a



claim upon which relief can be granted are DENIED.



ZG



EILEEN R. PETERSEN

Judge