United States District Court, W.D. Oklahoma
CELIA J. DUPUS, Plaintiff,
BRECKENRIDGE WIND PROJECT, LLC, a Delaware limited liability company, and NEXTERA ENERGY RESOURCES, LLC, a Delaware limited liability company, Defendants.
MEMORANDUM OPINION AND ORDER
J. Cauthorn United States District Judge
before the Court is Defendants' Motion to Dismiss Amended
Petition/Complaint Pursuant to Fed.R.Civ.P. 12(b)(6).[*] (Dkt. No. 30.)
Plaintiff has responded and the Motion is now at issue.
standard for consideration of motions to dismiss brought
pursuant to Fed.R.Civ.P. 12(b)(6) is set forth in the Supreme
Court's decision in Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), and the subsequent decision in
Ashcroft v. Iqbal, 556 U.S. 662 (2009). In those
cases, the Supreme Court made clear that to survive a motion
to dismiss, a complaint or counterclaim must contain enough
allegations of fact which, when taken as true, “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Claimants must
“nudge their claims across the line from conceivable
to plausible” to survive a motion to dismiss.
Id. When considering a motion to dismiss, courts
looks to the complaint and those documents attached or
referred to in the complaint, accept as true all allegations
contained in the complaint, and draw all reasonable
inferences from the pleading in favor of the pleader.
Pace v. Swidlow, 519 F.3d 1067, 1072 (10th Cir.
2008). Thus, the starting point in resolving Defendants'
Motion is to examine the factual allegations supporting each
claim Defendants wish the Court to dismiss.
case arises from the relationship between the parties that
began as a Collection Easement and Option where Breckenridge
Wind Project, LLC (“Breckenridge”) and Celia
Dupus entered into an agreement allowing Breckenridge and its
agents to install electric transmission lines for a wind farm
over Dupus's property. Plaintiff alleges Defendants
Breckenridge and Nextera Energy Resources, LLC
(“Nextera”) worked together on the project and
Nextera rendered payment to Plaintiff. The Amended Petition
describes two tracts as Dupus's property that suffered
damage and Defendants had permission to enter only Tract 1.
arguments regarding Plaintiff's ability to discover the
alleged harm are based on questions of fact and are not
proper at this stage. See Ashcroft, 556 U.S. at 678
(2009). Plaintiff claims Defendant Breckenridge was party to
the Collection Easement and Option and the Amended Petition
demonstrates circumstances connecting the two Defendants to
the actions conducted on Plaintiff's property. This is
sufficient to put both Defendants on notice that Plaintiff
alleges they committed the wrongs for all counts.
has not successfully stated a claim of negligence as to Tract
1 that is separate from the breach of contract claim as to
Tract 1. Oklahoma law does not permit tort claims and breach
of contract claims to arise from the same facts. See New
Cingular Wireless, PCS, LLC v. Boone, No.
CIV-10-0982-HE, 2011 WL 672551, at *2 (W.D. Okla. Feb. 15,
2011). Here, the Amended Petition states Defendants owed a
duty to “exercise reasonable care in the exercise of
[the] Collection Easement [and Option] over Tract 1.”
(Am. Petition, Dkt. No. 27, p. 5.) Plaintiff alleges
Defendants “violated that duty by negligently failing
to exercise reasonable care in using the easement option on
Tract 1.” Id. at p. 6. The duty and alleged
breach cannot exist without a breach of the contract. Thus,
the negligence claim as to Tract 1 is dismissed with
prejudice. In contrast, the negligence claim as to Tract 2 is
independent from the breach of contract claim as the
Collection Easement and Option did not encompass this
property. This portion of the claim remains.
Court finds Plaintiff has sufficiently stated a breach of
contract claim as to Tract
claim does not apply to Tract 2 because the parties agree the
Collection Easement and Option did not include this parcel.
Therefore, the breach of contract claim as to Tract 2 is
dismissed with prejudice.
Motion requests the dismissal of Plaintiff's claim of
breach of good faith and fair dealing. The independent tort
of bad faith is available as a remedy to the breach of the
duty of good faith and fair dealing only in certain
circumstances. Embry v. Innovative Aftermarket Sys.
L.P., 2010 OK 82, ¶ 4, 247 P.3d 1158, 1160. The
general remedy is breach of contract and the independent tort
of bad faith is available when a special relationship exists
between the parties. Combs v. Shelter Mut. Ins. Co.,
551 F.3d 991, 999 (10th Cir. 2008). Oklahoma courts have
found a special relationship between the parties in limited
circumstances, usually between an insurer and insured.
Id. (citing Wathor v. Mut. Assur. Adm'rs,
Inc., 2004 OK 2, ¶ 5, 87 P.3d 559, 561, as
corrected (Jan. 22, 2004)).
argues this claim is an alternative to contract damages and
is thus distinct from the claim requiring a special
relationship. Plaintiff cites no authority for this argument
and the Court finds it meritless. Plaintiff has failed to
allege any facts indicating the existence of a special
relationship that could support a breach of good faith and
fair dealing claim. This claim is dismissed with prejudice.
request for punitive damages and Plaintiff's notice that
she intends to attempt to pierce the corporate veil are
sufficient to withstand a motion to dismiss. The remaining
claims include negligence as to Tract 2, trespass as to both
tracts, private nuisance as to both tracts, and breach of
contract as to Tract 1.
reasons stated, Defendants' Motion to Dismiss Amended
Petition/Complaint (Dkt. No. 30) is ...