# Opinion

> District Court, W.D. Oklahoma · March 10, 2026

URL: https://www.frixlaw.com/law-library/cases/11275699

## Case

- **Full name:** 5th LLC v. Kemah Capital Holdings, LLC d/b/a Kemah Marine and Clear Spring Property and Casualty Company
- **Court:** District Court, W.D. Oklahoma
- **Decided:** March 10, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11275699

## Opinion text

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

16

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11275699. Public record. Not legal advice.