Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

5th LLC, )

)

Plaintiff, )

)

v. ) Case No. CIV-25-364-D

)

KEMAH CAPITAL HOLDINGS, LLC )

d/b/a KEMAH MARINE and )

CLEAR SPRING PROPERTY and )

CASUALTY COMPANY, )

)

Defendants. )

ORDER

Before the Court is Defendant Kemah Capital’s Motion to Dismiss the First

Amended Complaint [Doc. No. 15].1 Plaintiff responded [Doc. No. 20],2 to which

Defendant filed a reply [Doc. No. 23]. Defendant seeks dismissal under FED. R. CIV. P.

12(b)(1), 12(b)(2), and 12(b)(6). The matter is fully briefed and at issue.

BACKGROUND

Plaintiff brought this action against Defendants in Oklahoma County state court on

December 20, 2023 [Doc. No. 1-2]. The case was removed to this Court on March 28, 2025

[Doc. No. 1]. In its amended complaint, Plaintiff asserts a claim for breach of contract

against both Defendants [Doc. No. 12]. In the instant motion, Defendant Kemah moves to

1 In the instant motion, Defendant asserts that its name is improperly reflected in the

petition. In this Order and all further filings in this case, the caption shall be corrected to

reflect Defendant’s proper name as reflected in the updated caption herein.

2 Defendant Clear Spring Property and Casualty Company (Clear Spring) also filed a

response to Defendant Kemah Capital’s (Kemah) motion to dismiss, agreeing that

Defendant Kemah should be dismissed from this action [Doc. No. 17].

dismiss the claim against it arguing that the Court lacks personal jurisdiction over it; the

Court lacks subject matter jurisdiction over the action; and Plaintiff fails to state a claim

upon which relief can be granted.

PLAINTIFF’S ALLEGATIONS

At issue here is an insurance policy Plaintiff purchased for its Moonen 83 yacht (the

Yacht). Plaintiff alleges that Kemah and Clear Spring issued an insurance policy (the

Policy) for the Yacht providing coverage from October 27, 2022, through October 27, 2023

[Doc. No. 12, ¶ 6]. On or about December 24, 2022, the Yacht was damaged from seawater

entering the vessel—damage that Plaintiff alleges is covered under the Policy. Id. ¶ 23.

Plaintiff filed a claim under the Policy, but the claim was denied three separate

times. Id. ¶¶ 24-26. Each denial letter mentioned Kemah; was signed by Karen

MacMonagle, a claims manager who held herself out as a “Representative of Kemah

Marine on behalf of Clear Spring Property & Casualty Insurance”; and copied Daniel

Hatch, a Kemah employee, on the email containing the letter. Id. ¶¶ 27-30. Further, the first

denial letter stated that Kemah, on behalf of Clear Spring, completed the investigation and

denied coverage under the Policy for Plaintiff’s claim. Id. ¶ 27. The second denial letter

stated that Kemah affirmed its denial of Plaintiff’s claim. Id. ¶ 28. After the second denial,

Kemah’s representative, Ms. MacMonagle, stated that she “d[id] not see a reason to have

a call to discuss the claim” because they “have made their position clear and have sent two

denial letters.” Id. ¶ 29.

Kemah asserts that it entered into an agreement with Clear Spring whereby Kemah

“‘would market, broker and underwrite insurance on Clear Spring’s behalf’ and that

‘Kemah Capital was authorized to underwrite policies on Clear Spring’s behalf, but not to

adjust, settle, or deny any claims.’” Id. ¶ 14 (quoting [Doc. No. 10, at 1, 3]). Plaintiff claims

it did not know the relationship between Kemah and Clear Spring prior to the issuance of

the Policy and is still unaware of the nature of this relationship. Id. ¶ 15.

Plaintiff alleges that the handling of its claim was done in breach of the implied

covenant of good faith and fair dealing and was done in bad faith. Id. ¶ 31.

DISCUSSION

I. Kemah is subject to personal jurisdiction in Oklahoma.

“Although plaintiff bears the burden of establishing personal jurisdiction over

defendant, . . . in the preliminary stages of litigation this burden is ‘light.’” Intercon, Inc.

v. Bell Atl. Internet Sols., 205 F.3d 1244, 1247 (10th Cir. 2000) (citing Wenz v. Memery

Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995)).

“When a district court rules on a Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack

of personal jurisdiction without holding an evidentiary hearing, . . . the plaintiff need only

make a prima facie showing of personal jurisdiction to defeat the motion.” OMI Holdings,

Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998) (citing Kuenzle v. HTM

Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir. 1996)). “The plaintiff may make

this prima facie showing by demonstrating, via affidavit or other written materials, facts

that if true would support jurisdiction over the defendant.” Id. “[A] defendant must present

a compelling case demonstrating ‘that the presence of some other considerations would

render jurisdiction unreasonable’” to defeat Plaintiff’s prima facie showing. Id. (quoting

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985)).

“The plaintiff has the duty to support jurisdictional allegations in a complaint by

competent proof of the supporting facts if the jurisdictional allegations are challenged by

an appropriate pleading.” Pytlik v. Prof. Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989)

(citing Becker v. Angle, 165 F.2d 140, 141 (10th Cir. 1947)).

In considering evidence on a motion challenging personal jurisdiction, the Tenth

Circuit has described the role of a district court as follows:

[A] district court relying on documentary evidence in its consideration of a

motion to dismiss [for lack of personal jurisdiction] may not weigh the

factual evidence. Thus, the determination involves an application of the law

to the facts as set forth in the affidavits and complaints, favoring the plaintiff

where a conflict exists, as well as a determination as to the legal sufficiency

of plaintiff’s jurisdictional allegations in light of the facts presented.

Ten Mile Indus. Park v. W. Plains Serv. Corp., 810 F.2d 1518, 1524 (10th Cir. 1987).

“To obtain personal jurisdiction over a nonresident defendant in a diversity action,

a plaintiff must show both that jurisdiction is proper under the laws of the forum state and

that the exercise of jurisdiction would not offend due process.” Intercon, 205 F.3d at 1247

(citing Far West Cap., Inc. v. Towne, 46 F.3d 1071, 1074 (10th Cir. 1995)). “In Oklahoma,

this two-part inquiry collapses into a single due process analysis, as the current Oklahoma

long-arm statute provides that ‘[a] court of this state may exercise jurisdiction on any basis

consistent with the Constitution of this state and the Constitution of the United States.’”

Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1416-17 (10th Cir. 1988) (quoting OKLA. STAT.

tit. 12, § 2004).

“The Due Process Clause permits the exercise of personal jurisdiction over a

nonresident defendant ‘so long as there exist minimum contacts between the defendant and

the forum [s]tate.’” Intercon, 205 F.3d at 1247 (quoting World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 191 (1980)). Minimum contacts may be established in two ways:

First, a court may, consistent with due process, assert specific jurisdiction

over a nonresident defendant if the defendant has purposefully directed his

activities at residents of the forum, and the litigation results from alleged

injuries that arise out of or relate to those activities. When a plaintiff’s cause

of action does not arise directly from a defendant’s forum-related activities,

the court may nonetheless maintain general personal jurisdiction over the

defendant based on the defendant’s business contacts with the forum state.

Id. (quotations and citations omitted).

A. Kemah is not subject to general personal jurisdiction in Oklahoma.

“General jurisdiction arises where the defendant’s contacts with the forum state are

‘so continuous and systematic as to render [it] essentially at home’ there.” C5 Med. Werks,

LLC v. CeramTec GMBH, 937 F.3d 1319, 1323 (10th Cir. 2019) (quoting Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). A corporation is at home in its

“place of incorporation and its principal place of business.” BNSF Ry. Co. v. Tyrrell, 581

U.S. 402, 403 (2017) (citing Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)). “[B]ut in

an ‘exceptional case,’ a corporate defendant’s operations in another forum ‘may be so

substantial and of such a nature as to render the corporation at home in that [s]tate.’” Id.

(citing Daimler, 571 U.S. at 139 n.19). “The case law sets the bar quite high, however,

denying general jurisdiction absent substantial sales.” Shrader v. Biddinger, 633 F.3d 1235,

1243 (10th Cir. 2011) (citations omitted).

Kemah is incorporated in Texas and alleges that its principal place of business is in

Texas. Although Plaintiff asserts in its amended complaint that Kemah regularly conducts

business in Oklahoma, Kemah denies this claim and further explains that it has no offices

in Oklahoma, it has no bank accounts in Oklahoma, and its personnel do not regularly

travel to Oklahoma. In its response to Kemah’s motion to dismiss, Plaintiff does not address

Kemah’s argument that it is not subject to general jurisdiction in Oklahoma.

Kemah is not incorporated in Oklahoma nor is its principal place of business in

Oklahoma. Further, neither party has shown that this is one of those “exceptional cases”

where Kemah’s contacts with Oklahoma render it essentially at home here. Accordingly,

the Court agrees that Plaintiff has failed to show Kemah is subject to general personal

jurisdiction in Oklahoma.

B. Kemah is subject to specific personal jurisdiction in Oklahoma.

Specific jurisdiction requires a two-step analysis:

First, [the court] must consider whether the defendant’s conduct and

connection with the forum [s]tate are such that he should reasonably

anticipate being haled into court there. Second if the defendant’s actions

create sufficient minimum contacts, [the court] must then consider whether

the exercise of personal jurisdiction over the defendant offends traditional

notions of fair play and substantial justice.

Benton v. Cameco Corp., 375 F.3d 1070, 1075-76 (10th Cir. 2004) (quotations and citations

omitted).

i. Minimum contacts

When evaluating minimum contacts, the court “examine[s] whether the defendant

‘purposefully avail[ed] itself of the privilege of conducting activities within the forum

[s]tate.’” Id. at 1076 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). Minimum

contacts exist if “the defendant purposefully directed its activities at residents of the forum,

and . . . the plaintiff’s claim arises out of or results from actions by the defendant himself

that create a substantial connection with the forum state.” Id. (quoting OMI Holdings, 149

F.3d at 1091). “Whether a non-resident defendant has the requisite minimum contacts with

the forum state to establish in personam jurisdiction must be decided on the particular facts

of each case.” Kuenzle, 102 F.3d at 456 (quoting Shanks v. Westland Equip. & Parts Co.,

668 F.2d 1165, 1166 (10th Cir. 1982)).

Typically, “[a] contract between an out-of-state party and a resident of the forum

state cannot, standing alone, establish minimum contacts with the forum.” Benton, 375 F.3d

at 1077 (citing Burger King, 471 U.S. at 473). But “with respect to interstate contractual

obligations . . . parties who reach out beyond one state and create continuing relationships

and obligations with citizens of another state are subject to regulation and sanctions in the

other [s]tate for the consequences of their activities.” Id. (quoting Burger King, 471 U.S.

at 473). Several factors “must be evaluated in determining whether the defendant

purposefully established minimum contacts within the forum.” Burger King, 471 U.S. at

479. These include “prior negotiations and contemplated future consequences, along with

the terms of the contract and the parties’ actual course of dealing.” Id.

Kemah asserts that Plaintiff does not allege facts sufficient to establish that it

“purposefully directed” its activities to Oklahoma and does not allege any ongoing business

relationship or negotiations between the parties. But Plaintiff’s amended complaint alleges

just this—it contends that Kemah “marketed, underwrote, and issued a marine insurance

policy to Plaintiff”; “branded every page of the Policy with ‘Kemah Marine, a division of

Kemah Capital,’ and used a Kemah-controlled domain (yachtclaims@kemahcapital.com)

for submission of claims” [Doc. No. 20 (quoting Doc. No. 12)]. Further, a Kemah employee

was copied on each of the three denial letters, and the claims manager, Ms. MacMonagle,

signed each letter as a representative of Kemah. Kemah’s actions regarding the insurance

Policy, plus the allegation that it was involved in denial of the claim—the precise event

giving rise to the breach of contract claim—are sufficient to establish that Kemah

purposefully availed itself of the privilege of doing business in Oklahoma, and Plaintiff’s

claim arises out of those actions.

In its motion to dismiss, Kemah provides an affidavit from Daniel Hatch, Kemah’s

Claims Analyst and Assistant Chief Operating Officer, stating, among other things, that

neither Clear Spring nor Ms. MacMonagle were authorized to deny claims on Kemah’s

behalf. The Court notes that Plaintiff has a duty to “support jurisdictional allegations in a

complaint by competent proof of the supporting facts if the jurisdictional allegations are

challenged by an appropriate pleading.” Pytlik, 887 F.2d at 1376 (citing Becker, 165 F.2d

at 141). Here, Plaintiff responds to Kemah by reiterating the allegations set forth in its

amended complaint regarding Kemah’s alleged role in the denial of its claim. See [Doc.

No. 20, at 2].

The Court finds a conflict here as to Kemah’s role in the denial of Plaintiff’s

insurance claim. In “favoring the plaintiff where a conflict exists,” the Court finds that

sufficient facts exist to support specific personal jurisdiction over Kemah in this Court. Ten

Mile Indus. Park, 810 F.2d at 1524. Thus, Plaintiff has established that Kemah has

sufficient minimum contacts with the forum state.

ii. Reasonableness

Next, the Court considers “whether [its] exercise of personal jurisdiction over a

defendant with minimum contacts is ‘reasonable’ in light of the circumstances surrounding

the case.” OMI Holdings, 149 F.3d at 1091 (citing Asahi Metal Indust. Co. v. Superior Ct.

of Cal., 480 U.S. 102, 113 (1987)). Defendant bears the burden and “must present a

compelling case that the presence of some other considerations would render jurisdiction

unreasonable.” Burger King, 471 U.S. at 477. In making this determination, the following

factors are considered:

(1) the burden on the defendant, (2) the forum state’s interest in resolving the

dispute, (3) the plaintiff’s interest in receiving convenient and effective

relief, (4) the interstate judicial system’s interest in obtaining the most

efficient resolution of controversies, and (5) the shared interest of the

several states in furthering fundamental social policies.

OMI Holdings, 149 F.3d at 1095 (citing Asahi, 480 U.S. at 113).

Despite it being Defendant’s burden, Kemah does not address the factors listed

above in its motion to dismiss. Plaintiff does discuss the factors, ultimately arguing that

personal jurisdiction over Kemah is reasonable. First, Plaintiff states that it is not unduly

burdensome for a Texas entity to litigate in Oklahoma. Further, Oklahoma has a strong

interest in protecting its residents and the Yacht is owned by an Oklahoma LLC. Finally,

Plaintiff asserts that Kemah’s co-defendant has already answered this claim in this Court

and fragmenting litigation would weigh against judicial efficiency.

Kemah’s reply briefly mentions the applicable factors by asserting that Oklahoma

is not the most convenient location for litigating this claim because the Yacht is docked in

Florida and everything related to the ship is outside of Oklahoma. But Kemah fails to

consider other factors, including the fact that Plaintiff’s alleged harm was felt in Oklahoma.

Kemah’s argument falls short of presenting a “compelling case” as to why jurisdiction in

Oklahoma is unreasonable. Thus, Kemah is subject to specific personal jurisdiction in this

Court.

II. The Court has subject matter jurisdiction over this matter.

“Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the

sufficiency of the complaint’s allegations as to subject matter jurisdiction; or (2) a

challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v.

McDonell, 299 F.3d 1173, 1180 (10th Cir. 2002) (citing Holt v. United States, 46 F.3d 1000,

1002 (10th Cir. 1995) abrogated in part on other grounds by Cent. Green Co. v. United

States, 531 U.S. 425, 437 (2001)). “[I]n reviewing a facial attack ‘a district court must

accept the allegations in the complaint as true.’” Pueblo of Jemez v. United States, 790 F.3d

1143, 1148 n.4 (10th Cir. 2015) (quoting Holt, 46 F.3d at 1003). “In reviewing a factual

attack, ‘a party may go beyond allegations contained in the complaint and challenge the

facts upon which subject matter jurisdiction depends,’ which does not allow a reviewing

court to ‘presume the truthfulness of the complaint’s factual allegations.” Id. (quoting Holt,

46 F.3d at 1003).

“Reference to evidence outside the pleadings does not convert the motion to dismiss

into a motion for summary judgment in such circumstances.” SK Finance SA v. La Plata

Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272, 1275 (10th Cir. 1997) (citing Holt, 46 F.3d at

1275)). “However, ‘a court is required to convert a Rule 12(b)(1) motion to dismiss into a

Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the

jurisdictional question is intertwined with the merits of the case.’” Paper, Allied-Indus.,

Chem. & Energy Workers Intern. Union v. Cont’l Carbon Co., 428 F.3d 1285, 1292 (10th

Cir. 2005) (quoting Holt, 46 F.3d at 1003). “[T]he underlying issue is whether resolution

of the jurisdictional question requires resolution of an aspect of the substantive claim.”

Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000) (quotation and citation

omitted).

Kemah asserts that this Court lacks subject matter jurisdiction over this matter

because Plaintiff failed to establish it suffered an injury in fact that is fairly traceable to

Kemah’s conduct. Specifically, Kemah alleges that any denial letter received by Clear

Spring was not authorized to be sent on its behalf. Further, neither Clear Spring nor its

reinsurer, Talisman Casualty Insurance Company (TCIC), were permitted to hold

themselves out as agents of Kemah. Therefore, Plaintiff’s alleged harm stemming from the

denial of its insurance claim cannot be fairly traceable to Kemah.

The parties agree that Kemah asserts a factual challenge to Plaintiff’s standing.

Thus, the Court may consider facts outside the four corners of the complaint. The

underlying issue of whether Kemah denied Plaintiff’s insurance claim goes to the heart of

its breach of contract claim. Therefore, because “resolution of the jurisdictional question is

intertwined with the merits of the case,” the Court analyzes this claim under the Rule

12(b)(6) standard. Paper, Allied-Indus., Chem. & Energy Workers Intern. Union, 428 F.3d

at 1292 (quoting Holt, 46 F.3d at 1003).

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The Court will accept as true all well-

pled factual allegations and construe them in the light most favorable to the non-movant.

Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010).

A complaint “attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations,” but it does need “more than labels and conclusions.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (citation omitted). “To survive a motion to dismiss

[under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id.

To establish standing, a plaintiff must demonstrate the presence of the following:

(1) injury in fact—meaning the invasion of a legally protected interest that is

(a) concrete and particularized, and (b) actual or imminent, not conjectural

or hypothetical; (2) a causal relationship between the injury and the

challenged conduct—meaning that the injury fairly can be traced to the

challenged action of the defendant; and (3) a likelihood that the injury will

be redressed by a favorable decision—meaning that the prospect of obtaining

relief from . . . a favorable ruling is not too speculative.

Bd. Of Cnty. Comm’rs of Sweetwater Cnty. v. Geringer, 297 F.3d 1108, 1112 (10th Cir.

2002) (quotation and citation omitted). “On the second requirement, to show that an injury

is ‘fairly traceable’ to the challenged conduct, a plaintiff must allege ‘a substantial

likelihood that the defendant’s conduct caused plaintiff’s injury in fact.’” Santa Fe All. for

Pub. Health & Safety v. City of Santa Fe, N.M., 993 F.3d 802, 814 (10th Cir. 2021) (quoting

Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005)).

In support of its motion to dismiss, Kemah attaches a declaration from Mr. Hatch

explaining that Kemah and Clear Spring entered into an agreement whereby Kemah would

market, broker, and underwrite insurance policies on behalf of Clear Spring. He asserts that

Kemah’s only connection to Oklahoma is that it issued Plaintiff’s Policy on behalf of Clear

Spring. A third-party adjuster was supposed to receive the claim and adjust it, but instead

Clear Spring and its reinsurer adjusted the claim themselves.

Plaintiff avers that Mr. Hatch’s declaration is directly contradicted by the record.

Specifically, Plaintiff points to the Policy which includes Kemah’s branding and an email

address with a Kemah domain for policyholders to submit claims to, the fact that the denial

letters were sent by a representative of Kemah marine, and Mr. Hatch, a Kemah employee,

was copied on the denial letters. The crux of Plaintiff’s claim is that it filed an insurance

claim under the Policy, the claim was denied three times, Kemah was involved in the denial

of those claims, and it was harmed as a result of the denial. Accepting Plaintiff’s allegations

as true (Kemah played a role in denying Plaintiff’s claim and as a result Plaintiff was

harmed), clearly the injury would be fairly traceable to those parties involved in denying

the claim—including Kemah.

Thus, accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has

standing to assert its breach of contract claim against Kemah.

III. Plaintiff’s breach of contract claim survives Kemah’s motion to dismiss, but its

request for punitive damages is dismissed.

As described above, a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The Court will

accept as true all well-pled factual allegations and construe them in the light most favorable

to the non-movant. Peterson, 594 F.3d at 727 (10th Cir. 2010). The Court analyzes

Defendant’s motion to dismiss under the standard of review set forth above.

A. The Court applies maritime law and New York law to Plaintiff’s breach

of contract claim.

First, Kemah argues that this Court should apply maritime law, or where that does

not apply, New York law, pursuant to the parties’ choice-of-law provision. Plaintiff does

not dispute this and contends that it can establish its breach of contract claim under both

maritime and New York law. Accordingly, the Court finds that maritime law shall apply to

Plaintiff’s breach of contract claim and, otherwise, New York law applies.

B. Plaintiff asserts facts sufficient to support a finding that Kemah

intended to bind itself to the contract.

“An agent executing a contract on behalf of a disclosed principal is not liable for a

breach of the contract unless it clearly appears that he or she intended to bind himself or

herself personally.” Y.B. Assoc. Grp, LLC v. Rubin, 216 A.D.3d 851, 853, 189 N.Y.S.3d 571

(quotation and citation omitted). “[T]here [must be] clear and explicit evidence of the

agent’s intention to substitute or superadd his personal liability for, or to, that of his

principal.” Id. (quoting Stamina Prods., Inc. v. Zintec USA, Inc., 90 A.D.3d 1021, 1022,

935 N.Y.S.2d 629).

Kemah asserts that it was a disclosed agent of the principal, Clear Spring, and

therefore cannot be liable under a contract between the principal and a third party. Plaintiff

argues that whether Kemah was a disclosed agent or whether it acted outside the scope of

its authority are factual questions that are not appropriate for resolution at the motion to

dismiss stage. In support, Plaintiff provides the following: (1) the insurance Policy contains

statements suggesting that Kemah and Clear Spring were both providing insurance, but a

separate page states that Kemah was underwriting on behalf of Clear Spring; (2) the

communications surrounding the claim were issued and signed by a representative of

Kemah and a Kemah employee was copied on all emails; and (3) finally, Plaintiff alleges

that Kemah wore multiple hats such as underwriter, marketer, broker, and policy

administrator.

In accepting Plaintiff’s allegations as true, the Court finds Plaintiff has pled a

plausible claim for breach of contract against Kemah. The Court agrees that there is

conflicting evidence as to whether Kemah was a disclosed agent. Specifically, Plaintiff

alleges that the Policy contains language suggesting that both Kemah and Clear Spring

were providing coverage, whereas a separate portion of the Policy states that Kemah was

completing the underwriting on Clear Spring’s behalf.

Accordingly, Plaintiff asserts facts that, if taken as true, a jury could find that Kemah

meant to bind itself to the contract. Thus, Plaintiff’s breach of contract claim survives

Kemah’s motion to dismiss.

C. Plaintiff’s request for punitive damages is not dismissed.

Defendant also purports to seek dismissal of a claim for punitive damages. However,

a request for punitive damages constitutes a prayer for relief, not a separate cause of action.

See Coll v. First Am. Title Ins. Co., 642 F.3d 876, 901 (10th Cir. 2011) (“the prayer for

relief is no part of the cause of action and . . . the parties are entitled to such relief and to

such judgment as the complaint . . . makes out”) (internal quotation omitted); Schoonover

v. Schoonover, 172 F.2d 526, 530 (10th Cir. 1949) (same). A Rule 12(b)(6) motion tests the

sufficiency of a claim; it is not a proper mechanism for challenging a request for punitive

damages. See Douglas v. Miller, 864 F. Supp. 2d 1205, 1220 (W.D. Okla. 2012)

(“[W]hether [punitive] damages are recoverable is not a proper subject for adjudication in

a Rule 12(b)(6) motion, as the prayer for relief is not a part of the cause of action.”’); see

also Dingxi Longhai Dairy, Ltd. v. Becwood Tech. Grp. L.L.C., 635 F.3d 1106, 1108 (8th

Cir. 2011); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

1255 at 508-09 (3d ed. 2004); FED. R. Civ. P. 54(c) Gudgment “should grant the relief to

which each party is entitled’).

Accordingly, Defendant’s motion to dismiss Plaintiff’s request for punitive damages

is denied.

IT IS THEREFORE ORDERED that Defendant Kemah Capital’s Motion to

Dismiss the First Amended Complaint [Doc. No. 15] is DENIED.

IT IS SO ORDERED this 10" day of March, 2026.

\ ° ~ 2

Ny QO,

TIMOTHY D. DeGIUSTI

Chief United States District Judge

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