Shaik v. Certain Underwriters at Lloyd's of London et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
ZAK SHAIK, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-24-271-JFH-GLJ
)
CERTAIN UNDERWRITERS OF 	)
LLOYD’S OF LONDON, MILLENNIAL )
SPECIALTY INSURANCE, LLC, 	)
BALDWIN INSURANCE GROUP 	)
HOLDINGS, LLC, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter comes before the Court on motions to dismiss filed by the Defendants
in this case. 	Pro se Plaintiff Zak Shaik brings this case alleging breach of contract and
breach of the duty of good faith and fair dealing, i.e., bad faith, as against Certain
Underwriters of Lloyd’s of London (“Lloyd’s”); Millennial Specialty Insurance, LLC
(“Millennial”); and Baldwin Insurance Group Holdings, LLC (“Baldwin”) (collectively,
“Defendants”) [Docket No. 2]. 	For the reasons stated below, Defendants’ renewed
Motions to Dismiss [Docket Nos. 52-54] should be GRANTED.
I. 	Procedural History
Plaintiff Zak Shaik filed the original pro se Complaint in this matter on July 31,
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2024.1 	Docket Nos. 1-2. Shaik named Lloyd’s, Millennial, and Baldwin as Defendants.
Docket No. 2, p. 2, ¶¶ 6-9. 	Plaintiff alleges in this diversity case claims for breach of
contract and breach of the duty of good faith and fair dealing. Docket No. 2, pp. 6-8, ¶¶ 38-
48. He requests relief in the form of compensatory and punitive damages, as well as costs,
fees, and other applicable relief. Id., pp. 8-9, ¶¶ (A)-(G).
In general, Plaintiff alleges in the Complaint that he had insurance policies totaling
$7.6 million for seven rental properties located in Sulphur, Oklahoma. The case heading
on the civil cover sheet identifies the sole Plaintiff as “Zak Shaik.” Docket Nos. 1-2. In
the first paragraph of the Complaint, however, Plaintiff identifies himself as “Plaintiff Zak
Shaik aka Zia Shaikh.” 	Docket No. 2, p.1. 	Plaintiff alleges Defendants issued these
policies to him on March 10, 2023, which provided coverage between March 10, 2023, and
March 10, 2024. 	Plaintiff alleges that a Certificate of Insurance for each policy was
attached to the Complaint, but there are no exhibits to Plaintiff’s Complaint [Docket No.
2]. 	On April 26, 2024, an EF4 tornado destroyed all seven properties. 	Plaintiff notified
Defendants of the event and demanded full policy benefits for each property. “Defendants”
denied the claims for non-payment of the policy premiums, and Plaintiff alleges that
“Defendants” “purported ‘cancellation’ for non-payment was procedurally defective under
Oklahoma statute § 3639, and thus invalid and ineffective against Plaintiff.” Docket No.
2, p. 4, ¶¶ 20, 22. Plaintiff alleges that he did not receive the cancellation notices, which
1 Mr. Shaik filed four other related cases against various other parties on July 19, July 22, July 31,
and August 27, 2024. See OKED Case Nos. CIV-24-252-JFH-GLJ, CIV-24-253-JFH-GLJ, CIV-
24-256-JFH-GLJ, and CIV-24-311-RAW-GLJ.
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is required for effective cancellation notice, and “Defendants” continued to deny his
demand for full payment of all policies.
Plaintiff was granted in forma pauperis (“IFP”) status on August 8, 2024, and
summons was issued as to all Defendants on September 16, 2024. See Docket Nos. 7, 11-
13. 	Summons was returned executed as to Millennial and Baldwin, and both moved to
dismiss the claims against each of them. See Docket Nos. 18-21. On October 1, 2024, the
Court referred this case to the undersigned Magistrate Judge for all further proceedings in
accordance with jurisdiction pursuant to 28 U.S.C. § 636. See Docket No. 17. On October
18, 2024, the undersigned Magistrate Judge issued a Report and Recommendation sua
sponte revisiting Plaintiff’s IFP status, and recommending that his IFP status be revoked
in the present case and all related cases, upon being made aware of serious concerns
regarding the completeness and accuracy of Plaintiff’s IFP motion. 	See Docket No. 24.
Summons was returned unexecuted for Lloyd’s on October 21, 2024, but was apparently
executed thereafter because Lloyd’s moved to dismiss on October 28, 2024. 	See Docket
Nos. 26, 29.
Then-Chief 	Judge 	Ronald 	A. 	White 	affirmed 	and 	adopted 	the 	Report 	and
Recommendation on December 20, 2024, and deemed moot all pending motions, including
the pending motions to dismiss. See Docket No. 35. Plaintiff moved for reconsideration
of the decision [Docket No. 38] and then appealed this decision to the Tenth Circuit without
a ruling on the motion to reconsider. 	See Docket Nos. 39-41 and Circuit Case No. 25-
7004. 	The Tenth Circuit held a decision in abeyance pending a ruling on the Motion to
Reconsider, which Judge White issued on February 12, 2025, denying the motion. 	See
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Docket No. 42-44. 	The case then returned to the Tenth Circuit, at which time all of
Plaintiff’s related cases on appeal were consolidated. See Docket Nos. 44-46. The Tenth
Circuit affirmed the District Court ruling on September 17, 2025 and remanded the case,
this court received the mandate from the Tenth Circuit on October 9, 2025, and Plaintiff
paid the filing fee on December 15, 2025. See Docket Nos. 47-48. In light of the remand,
the undersigned Magistrate Judge allowed Defendant until December 31, 2025, to answer
or otherwise respond to Plaintiff’s Complaint. See Docket No. 49.
On December 31, 2025, all three Defendants filed renewed motions to dismiss.
Lloyd’s filed a substantive motion containing a footnote that it was substantially similar to
Lloyd’s previously-filed motion to dismiss and this filing was a reinstatement of the
previous arguments. 	See Docket No. 54, p. 1 n.1. 	Defendants Millennial and Baldwin
each filed two-page documents indicating that they were “reinstating” their previously-
filed motions to dismiss. See Docket Nos. 52-53; see also Docket No. 21, p. 2, n. 2. Rule
10(c) contemplates incorporation of a statements only from a “pleading.” See Fed. R. Civ.
P. 10(c). Rule 7(a) enumerates documents that are “pleadings.” Fed. R. Civ. P. 7(a). Rule
7(a) lists seven pleadings and states that those are the “only” ones “allowed.” 	Id.
(Complaint, Answer to Complaint, Answer to Counterclaim designated as a Counterclaim,
Answer to a Crossclaim, a Third-Party Complaint, Answer to a Third-Party Complaint, and
a Reply). By contrast, rule 7(b) sets out basic requirements for motions. See Fed. R. Civ.
P. 7(b). 	“Rule 10(c) does not contemplate the incorporation of statements from prior
motions (only statements ‘in a pleading’ may be adopted by reference elsewhere).” 	5A
Wright & Miller’s Federal Practice and Procedure, § 1326 (4th ed.).
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The Federal Rules of Civil Procedure do not permit expressly adoption by reference
or incorporation of statements in prior motions, nor do the Local Rules of this Court.
Compare with D.N.M. LR-Civ. 7.1(a) (“A party may adopt by reference another party’s
motion or other paper by making specific reference to the filing date and docket number of
such motion or other paper.”); see also Ortiz v. New Mexico, 550 F. Supp. 3d 1020, 1078-
1080 (D.N.M. 2021). 	The Tenth Circuit acknowledges, however, that “[t]he purpose of
[the District of New Mexico’s] Local Rule 7.1(a) is to promote judicial efficiency and
economy by precluding the unnecessary filing of motions, responses, and orders.” Hooten
v. Ikard Servi Gas, 525 Fed. Appx. 663, 667 (10th Cir. 2013) (quotation omitted).
Accordingly, the undersigned Magistrate Judge finds that the reinstated motions by
Millennial and Baldwin should be permitted to stand but cautions counsel that such practice
is inappropriate without leave of Court moving forward.
II. 	Legal Standards
Under Fed. R. Civ. P. 8(a)(2), a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Practically, this means that the “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
is plausible on its face when the complaint “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“In considering whether the complaint’s allegations are sufficient, the court first eliminates
conclusory allegations, mere ‘labels and conclusions,’ and any ‘formulaic recitation of the
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elements of a cause of action.’” 	Bledsoe v. Carreno, 53 F.4th 589, 606 (10th Cir. 2022)
(quoting Iqbal, 556 U.S. at 678) (quoting Twombly, 550 U.S. at 555). 	“The court then
accepts as true all well-pled factual allegations and considers ‘whether they plausibly give
rise to an entitlement to relief.’” Id. (quoting VDARE Found. v. City of Colorado Springs,
11 F.4th 1151, 1159 (10th Cir. 2021)).
In evaluating a Rule 12(b)(6) motion to dismiss, the court typically may not look
beyond the pleadings. 	Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010); see
also Rubio ex rel. Z.R. v. Turner Unified Sch. Dist. No. 202, 475 F.Supp.2d 1092, 1097 n.3
(D. Kan. 2007) (the court generally may not look beyond “the four corners of the complaint
when deciding a Rule 12(b)(6) motion to dismiss”). 	The Tenth Circuit recognizes that
there are three exceptions to this restriction on what the court can consider, “but they are
quite limited: (1) documents that the complaint incorporates by reference[;] (2) documents
referred to in the complaint if the documents are central to the plaintiff’s claim and the
parties do not dispute the documents’ authenticity[;] and (3) matters of which a court may
take judicial notice.” 	Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (internal
quotations and citations omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
When reviewing a motion for dismissal under Rule 12(b)(6), the Court “‘must
determine 	whether 	the 	complaint 	sufficiently 	alleges 	facts 	supporting 	all
the elements necessary 	to 	establish 	an 	entitlement 	to 	relief 	under 	the 	legal 	theory
proposed.’” Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc.,
680 F.3d 1194, 1201-1202 (10th Cir. 2011) (quoting Forest Guardians v. Forsgren, 478
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F.3d 1149, 1160 (10th Cir. 2007)). 	“While the 12(b)(6) standard does not require that
Plaintiff establish a prima facie case in h[is] complaint, the elements of each alleged cause
of action help to determine whether Plaintiff has set forth a plausible claim.” 	Khalik v.
United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). 	In a case against multiple
defendants, “it is particularly important . . . that the complaint make clear exactly who is
alleged to have done what to whom, to provide each individual with fair notice as to the
basis of the claims against him or her, as distinguished from collective allegations. . . .”
Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008).
Finally, because Plaintiff is proceeding pro se, the undersigned Magistrate Judge
liberally construes his pleadings. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)
(requiring courts to liberally construe a pro se litigant’s pleadings); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (a court construes a pro se party’s pleadings liberally and
holds them “to a less stringent standard than [that applied to] formal pleadings drafted by
lawyers.”). Although pro se pleadings are held to a less stringent standard than ones drafted
by lawyers, a pro se litigant must “‘follow the same rules of procedure that govern other
litigants.’” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).
III. 	Analysis
Millennial contends that Plaintiff has no entitlement to recover because the policies
at issue were cancelled due to Plaintiff’s failure to pay, after timely notices, and that the
damages alleged occurred after the policy’s natural expiration date. Millennial notes that
it is a managing general agent who assisted Plaintiff in procuring the policies at issue and
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sent the cancellation notices, and that Lloyd’s is the carrier who held the risk and to whom
the premium was due and owing. 	Baldwin alleges that it is the parent company to
Millennial and had no involvement in the procurement or cancellation of policies, nor any
decision related to coverage under the policies. Further, Baldwin contends Plaintiff makes
no allegation that Baldwin was involved in the cancellation of any of the policies, and that
post-cancellation settlement negotiations between in-house attorneys and Plaintiff do not
give rise to a cause of action.
Lloyd’s contends that the coverage period as pleaded ended on the face of the
Complaint two months prior to the alleged tornado that damaged Plaintiff’s properties, and
that the bad faith claim fails because it depends on Plaintiff’s “baseless contractual claims.”
Furthermore, Lloyd’s alleges the claims fail because Plaintiff failed to include a necessary
party, BAARI Ardmore Housing, LLC (“BAARI”),2 which was the property owner and
first named insured on the policy. Attached to Lloyd’s Motion to Dismiss are Certificates
of Insurance for the seven policies identified in Plaintiff’s Complaint. Docket No. 53, Exs.
1-7; see also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th
Cir. 1997) (“[I]f a plaintiff does not incorporate by reference or attach a document to its
complaint, but the document is referred to in the complaint and is central to the plaintiff’s
claim, a defendant may submit an indisputably authentic copy to the court to be considered
2 The undersigned Magistrate Judge takes judicial notice that BAARI is listed as an
“inactive” LLC on the Oklahoma Secretary of State website, which indicates that it is over
60 days delinquent in filing its annual report as of February 18, 2026, at the time the Court
checked. 	The website does not identify the date on which BAARI’s inactive status was
effective.
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on a motion to dismiss.”).3 Each policy identifies the named insured as “BAARI Ardmore
Housing, LLC,” with an additional insured identified as “Zia Shaikh.” 	Id. 	Each policy
identifies an effective date of March 10, 2023, with an expiration date of March 10, 2024.
Id.
In response to the motions by Defendants, Plaintiff contends, inter alia, that despite
reciting the coverage period of March 10, 2023, to March 10, 2024, he also alleged in the
Complaint that the policies were all in full force and effect on April 26, 2024, the alleged
date of loss, and that any cancellation for non-payment was procedurally defective under
Oklahoma law. Plaintiff contends that his allegation that the policy remained in effect at
the time of the date of loss is sufficient to survive dismissal, and that the Court is not
permitted to look at documents outside the pleadings. Furthermore, he argues that waiver
and estoppel apply because “Defendants” handled Plaintiff’s claim, provided addresses for
service, and engaged in coverage discussions after the purported cancellation.
Plaintiff 	continues 	to 	challenge 	the 	notices 	of 	cancellation, 	asserting 	that
noncompliance with Oklahoma statutory law rendered the cancellation void. 	Plaintiff
further contends that BAARI is not a required party, that he is limiting the claim to his own
insured rights and interests, and that Fed. R. Civ. P. 19(b) favors proceedings with his
claims against Defendants because prejudice can be minimized by tailoring the judgment
3 Lloyd’s included along with the Certificates of Insurance documentation related to cancellation
of the policy, i.e., a “Final Notice of Cancellation – Non-Payment of Premium.” Docket No. 54,
Exs. 1-7. These notices are outside those documents identified by Plaintiff in the Complaint and
the undersigned Magistrate Judge declines to consider them.
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as to Plaintiff’s interests, the court can shape relief to avoid prejudice, judgment would be
adequate for Plaintiff, and Plaintiff would have no other effective remedy.
A. Breach of Contract
“Because this is a diversity case governed by Oklahoma law, ‘we ascertain and
apply Oklahoma law such that we reach the result that would be reached by an Oklahoma
court.’” Ritch v. Carrabbas Italian Grill L.L.C., 719 Fed. Appx. 838, 840 (10th Cir. 2018)
(quoting Martinez v. Angel Expl., LLC, 798 F.3d 968, 973 (10th Cir. 2015)). 	Under
Oklahoma law, the elements for a breach of contract claim are: “(1) the formation of a
contract, (2) breach of the contract, and (3) damages as a result of that breach.” 	Cates v.
Integris Health, Inc., 2018 OK 9, ¶ 11, 412 P.3d 98, 103. Plaintiff, as the insured, bears
the burden of showing a loss is a covered loss under the insurance policy. Cherokee Nation
v. Lexington Ins. Co., 2022 OK 71, ¶ 11, 521 P.3d 1261, 1266.
Although the undersigned Magistrate Judge takes Plaintiff’s allegation that he is Zia
Shaikh on its face at this stage of the litigation, this would be subject to subsequent
challenge. 	As an initial matter, however, the undersigned Magistrate Judge notes that
Plaintiff’s Complaint wholly fails to identify separate actions by each Defendant. 	At no
point after naming the three Defendants does Plaintiff refer to them other than collectively.4
The general allegations that “Defendants” committed these violations do not sufficiently
establish this action as to any of the three Defendants, or Plaintiff’s right to bring it. Fed.
4 Nor does Plaintiff properly allege Lloyd’s principal place of business, required to confirm
diversity jurisdiction. See Docket No. 2, p. 2, ¶ 7. Because none of the parties challenge diversity
jurisdiction, the undersigned Magistrate Judge proceeds to address the substantive claims. Plaintiff
is cautioned, however, that such failures can be fatal on the face of a Complaint.
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R. Civ. P. 8(a)(2); Robbins, 519 F.3d at 1248 (10th Cir. 2008). This alone is sufficient for
dismissal of Plaintiff’s Complaint, but the undersigned Magistrate notes additional reasons
for dismissal below.
On the face of the Complaint, Plaintiff alleges that the seven insurance policies
provided coverage from March 10, 2023, though March 10, 2024. Docket No. 2, p. 3, ¶ 14.
He alleges the tornado damaged his seven properties on April 26, 2024. Id., p. 4, ¶ 16. He
further alleges that he never received any non-payment or cancellation notices, required
for effective cancellation of the policies. 	Id., pp. 4-5, ¶¶ 22-24. 	He alleges incorrectly,
based on the Certificates of Insurance provided by Lloyd’s (that the Court may consider),
that he is the sole insured on each of the seven policies. 	Id., p. 4, ¶ 15. The Certificates
reflect that BAARI and Zia Shaikh are the insureds on each of the policies. 	Docket No.
54, Exs. 1-7. Plaintiff does not challenge the authenticity of these documents, but instead
asserts incorrectly that the Court may not consider them.
Plaintiff’s allegations on the face of the Complaint fail to state a claim. 	Plaintiff
alleges a loss outside the insured period, and does not allege that he took any steps to renew
the insurance policy after the expiration date. While issues of coverage might proceed to
summary judgment had the alleged loss occurred within the coverage period, as would any
additional facts related to when the cancellation of the policy was effective, the claim here
is for a loss outside the coverage period on the face of the Complaint and supported by the
policy 	documentation 	appropriately 	provided 	by 	Lloyd’s 	in 	response 	to 	Plaintiff’s
allegations. 	This is bolstered by the Court’s earlier finding for dismissal based on
Plaintiff’s failure to identify which Defendant took which action.
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Accordingly, Plaintiff’s claim for breach of contract should be dismissed as to all
parties.
B. Breach of the Duty of Good Faith and Fair Dealing
“Under Oklahoma law, ‘[a]n insurer has an ‘implied-in-law duty to act in good faith
and deal fairly with the insured to ensure that the policy benefits are received.’” Shotts v.
GEICO Gen. Ins. Co., 943 F.3d 1304, 1314 (10th Cir. 2019) (quoting Badillo v. Mid
Century Ins. Co., 2005 OK 48, ¶ 26, 121 P.3d 1080, 1093 (as corrected June 22, 2005)
(quoting Christian v. Am. Home Assurance Co., 1977 OK 141, ¶ 8, 577 P.2d 899, 901).
“The core of a bad-faith claim ‘is the insurer’s unreasonable, bad-faith conduct, including
the unjustified withholding of payment due under a policy.’” 	Flores v. Monumental Life
Ins. Co., 620 F.3d 1248, 1255 (10th Cir. 2010) (quoting McCorkle v. Great Atl. Ins. Co.,
1981 OK 128, ¶ 21, 637 P.2d 583, 587). Plaintiff bears the burden of proof in these cases.
Oulds v. Principal Mutual Life Ins. Co., 6 F.3d 1431, 1436 (10th Cir. 1993) (“[T]he insured
must present evidence from which a reasonable jury could conclude that the insurer did not
have a reasonable good faith belief for withholding payment of the insured's claim.”)
(citing McCoy v. Oklahoma Farm Bureau Mutual Ins. Co., 1992 OK 43, ¶ 22, 841 P.2d
568, 572).
Plaintiff contends he has plausibly alleged a claim for bad faith, including a claim
that Defendants unreasonably denied his claim, failed to conduct a good-faith investigation,
and reckless disregard of his rights as an insured. 	He again contends Defendants’
arguments rely on matters outside the pleadings, and asserts that Lloyd’s Answer and
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affirmative defenses confirms that there is a live controversy that should proceed to
discovery.
As noted above, Plaintiff’s Complaint fails to include “a short and plain statement
of the claim showing that the pleader is entitled to relief” sufficient to provide each
Defendant with “fair notice” by informing them of the actual grounds for the claim against
each of them. 	Fed. R. Civ. P. 8(a)(2); Robbins, 519 F.3d at 1248. 	Plaintiff’s Complaint
alleges that “Defendants” committed the acts of bad, with zero specific allegations
sufficient to distinguish any of the three Defendants. These allegations do not establish a
sufficient cause of action as to any Defendant, or Plaintiff’s right to bring it. And as noted
above, Plaintiff’s allegations on the face of the Complaint fail to state a claim because he
alleges a loss outside the insured period and does not allege that he took any steps to renew
the insurance policy after the expiration date.
Accordingly, Plaintiff’s claim for breach of the duty of good faith and fair dealing
should be dismissed.
Because the undersigned Magistrate Judge finds that Plaintiff’s claim should be
dismissed for failure to state a claim, the undersigned Magistrate Judge declines to address
Defendant Lloyd’s alternative argument regarding Plaintiff’s failure to join BAARI as an
allegedly indispensable party under Fed. R. Civ. P. 19, and how that could affect both
causes of action.5
5 Plaintiff, in related Case No. CIV-24-256-RAW-GLJ, Shaik v. Mordy, et al., Docket No. 12, was
previously denied repeated requests to represent BAARI. 	This Court noted there that neither
federal nor Oklahoma statutes, nor case law, supported his position that he should be permitted to
represent Baari Ardmore Housing, LLC, in a pro se capacity. Id., pp. 4-10 (collecting cases).
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C. Futility of Amendment
Contained in Plaintiff’s consolidated response is a request for leave to amend if the
Court finds a “technical pleading deficiency.” 	The failures to state a claim above are more
than technical pleading failures. 	Moreover, “[s]uch cursory requests for leave to amend
are insufficient.” Bangerter v. Roach, 467 Fed. Appx. 787, 789 (10th Cir. 2012) (citation
omitted).
In his Complaint, Plaintiff fails to allege what actions each Defendant took in
committing these alleged acts, and specifically alleges a loss outside the stated insurance
coverage period. Bellmon, 935 F.2d at 1110 (“[C]onclusory allegations without supporting
factual averments are insufficient to state a claim on which relief can be based.”). As cited
above, the Complaint must include “a short and plain statement of the claim showing that
the pleader is entitled to relief” sufficient to provide each Defendant with “fair notice” by
informing them of the actual grounds for the claim against each of them. Fed. R. Civ. P.
8(a)(2); Robbins, 519 F.3d at 1248. Plaintiff has been on notice of the defects in his original
Complaint, as discussed above, based on the arguments in the Defendants’ original and
renewed motions to dismiss. Fed.R.Civ.P. 15(a)(2) provides that the “court should freely
give leave when justice so requires,” and that is especially true “when the plaintiff is
proceeding pro se.” Panicker v. State Dept. of Agriculture, 498 Fed. Appx. 755, 757 (10th
Cir. 2012); see also Gray v. Geo Grp., Inc., 727 Fed. Appx. 940, 948 (10th Cir. 2018)
(“[D]enial of leave is generally justified only for ‘undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment.’”) (quoting Frank v. U.S. West, Inc., 3 F.3d
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1357, 1365 (10th Cir. 1993)). “Dismissal of a pro se complaint for failure to state a claim
is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged
and it would be futile to give him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214,
1217 (10th Cir. 2007) (internal quotation marks omitted). 	The undersigned Magistrate
Judge finds that further amendment in this case would be futile on the face of the
Complaint, based on the policy coverage dates, with an alleged date of loss falling outside
those dates. 	Plaintiff cannot prevail on the facts he has alleged, and any amendment to
allow further claim for damages for the same actions would be futile. See Jefferson County
School Dist. No. R–1 v. Moody’s Investor’s Services, Inc., 175 F.3d 848, 859 (10th Cir.
1999) (“Although Fed. R. Civ. P. 15(a) provides that leave to amend shall be given freely,
the district court may deny leave to amend where amendment would be futile[.] 	A
proposed amendment 	is futile if the complaint, as amended, 	would be subject to
dismissal.”).
IV. 	Conclusion
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that
Defendant Millennial Specialty Insurance, LLC’s Reinstated Motion to Dismiss [Docket
No. 52], Defendant Baldwin Insurance Group Holdings, LLC’s Reinstated Motion to
Dismiss [Docket No. 53], and Defendants Certain Underwriters at Lloyd’s London’s
Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(7) and
Memorandum of Law in Support Thereof [Docket No. 54] be GRANTED. Any objection
to this Report and Recommendation must be filed within fourteen days. 	See 18 U.S.C.
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§ 636(b)(1); Fed. R. Civ. P. 72(b). 	Any objections and response shall each be limited to
10 pages and a reply is permitted only with leave of court upon a showing of good cause.
IT IS SO ORDERED this 19th day of February, 2026.
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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