Landya B. McCafferty, United States District Judge.
Roderick Webber, proceeding pro se, brings eighteen claims against a large group of defendants arising out of alleged assaults on him that occurred during a "No Labels Problem Solvers" political event held at the Radisson Hotel in Manchester, New Hampshire, in October 2015. Specifically, Webber alleges that he was assaulted at the event by defendants Edward Deck (an employee or agent of Donald J. Trump for President, Inc.), Fred Doucette (a New Hampshire State Representative), and Manchester police officers.
Several defendants move to dismiss the claims against them. Pending before the court are motions to dismiss by No Labels Problem Solvers ("No Labels") (doc. no. 100); XMark, LLC (North Carolina) and XMark LLC (Arizona)
In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court accepts the well-pleaded factual allegations in the complaint as true and construes reasonable inferences in the plaintiff's favor.
The following background information is summarized from Webber's second amended complaint, document number 75. The complaint is forty-five pages long, single-spaced, followed by thirty-two pages of additional material that Webber labels as appendices.
Webber describes himself as a "video and print journalist and a documentary filmmaker" and "a known internet and radio personality and peace activist." Doc. no. 75 at 1. He explains that during the 2016 presential campaign he became known as "Flower Man" because he would hand out flowers as symbols of peace to the major candidates. Webber attended a Trump Campaign event in September
Webber then planned to attend a "No Labels Problem Solvers" event on October 12, 2015, at the Radisson Hotel in Manchester, New Hampshire. He alleges that No Labels publicized the event as a public forum where citizens could challenge presidential candidates. He attempted to get press credentials for the event but was unsuccessful and, instead, attended as a member of the public.
A No Labels spokesperson began the event by eliciting responses from the audience, encouraging the audience to shout and scream, and generally inciting a rowdy atmosphere. Jon Huntsman, Joe Lieberman, and Donald Trump spoke at the event. Webber did some filming and then sat with the press next to the stage.
The sound system was not working properly during the event, which caused difficulty for speakers. The microphone for audience members to use was not working during Candidate Trump's turn at the podium. Some audience members attempted to shout questions, which resulted in shouting from other audience members. Staff members brought out megaphones.
After Candidate Trump concluded his speech, Webber asked him if he was aware that Webber had been assaulted at a prior Trump Campaign event. Trump responded that Webber looked healthy. Edward Deck, who was inside the roped-off area for the stage, tapped Webber on the back and said that there was a microphone at the rear of the room and that questions were only being taken from the microphone.
Webber got up from his seat and went to the back of the room to use the microphone. He then realized that Deck had deceived him and that there was no microphone in the back. Deck, Trump campaign staff members, State Representative and Co-Chair of New Hampshire Trump for President Fred Doucette, and others made a wall around Webber that blocked him from returning to his seat.
Doucette told Webber to keep moving and that he was not going to get to use the microphone. Webber told Deck, who was holding Webber, to get his hands off of him and asked him his name. Deck responded in a threatening manner.
Webber waved to Trump to signal for access to the microphone. James Pittman, an officer with the Manchester Police Department,
Another Manchester police officer, Brian Cosio, joined Deck and Pittman. Their efforts to move Webber caused him to be thrown to the floor. No Labels employees continued to watch without intervening.
Officer Cosio and Officer Daniel Craig took Webber outside. When Webber asked, Cosio and Craig said that he was being detained. Captain Allen Aldenberg, who was a sergeant at the time, arrived and told Webber that he was free to leave. Craig agreed that Webber could leave.
Webber attempted unsuccessfully to file a complaint with the Manchester Police Department about his treatment at the event. Several newspapers and other media published material about the event which Webber believes damaged his reputation. Webber contacted the Office of the New Hampshire Attorney General for assistance in pressing charges against those involved in removing him from the No Labels event and was told that the office would not open an investigation. Despite the initial sympathy expressed by some staff at No Labels, the organization did not take responsibility for Webber's experience.
Webber then brought this action against President Donald J. Trump ("Trump"); Donald J. Trump for President, Inc. (the "Trump Campaign"); the Trump Organizations; Edward Deck; XMark; No Labels; the City of Manchester; James Pittman; Allen Aldenberg; Brian Cosio; Daniel Craig; Fred Doucette; and JPA III Management Company, Inc.
As discussed
Of the eighteen claims alleged in the second amended complaint, Webber asserted twelve of them against No Labels. They include several state law claims, such as: Assault (Count I), Battery (Count II), Intentional Infliction of Emotional Distress (Count III), Negligence (Count IV), Negligent Hiring (Count V), Fraud (Count VI), and False Imprisonment (Count VII). They also include five federal claims under 42 U.S.C. § 1983, including Negligent Hiring and Retention (Count XII), Negligent Supervision (Count XIII), False Imprisonment (Count XV), False Arrest (Count XVI), and Retaliation (Count XVII).
No Labels moves to dismiss all claims against it on various grounds. First, it moves to dismiss the state law claims for Assault (Count I), Battery (Count II), Intentional Infliction of Emotional Distress (Count III), Fraud (Count VI), and False Imprisonment (Count VII), arguing that all of those claims are based on a theory of vicarious liability for the defendant police officers' conduct. No Labels argues that it is not liable for the actions of the other defendants and, therefore, those claims fail.
Second, No Labels moves to dismiss the federal law claims on the ground that it is not a state actor for purposes of § 1983. Finally, it moves to dismiss the state law
Webber objects, arguing that the defendant police officers were No Labels agents or employees, that No Labels conspired with the defendant police officers to violate his civil rights, and that he pleaded sufficient facts to state each of his claims against No Labels.
No Labels moves to dismiss Webber's state law claims of assault, battery, intentional infliction of emotional distress, fraud, and false imprisonment, which are based on the vicarious liability of No Labels for the defendant police officers' conduct.
In response, Webber contends that the defendant police officers who were involved in removing him from the No Labels event were No Labels employees. In support, he points to his allegation in the second amended complaint that No Labels paid to have the off-duty officers serve as security guards at the event. No Labels responds that the police officers were independent contractors, which does not implicate vicarious liability except in rare circumstances that did not exist during the No Labels event.
Under New Hampshire law, an employer may be vicariously liable for the torts committed by an employee who was acting within the scope of his employment.
"Respondeat superior, or vicarious liability, ordinarily does not extend to torts by independent contractors because the employer reserves no control or power of discretion over the execution of the work."
Webber alleges that No Labels hired the defendant police officers as security guards for the event. In his objection, Webber states in conclusory fashion that he has alleged facts to show that No Labels had control over the officers. He cites no factual allegations, however, to show that No Labels provided a "continuous prescription" of what the officers should or should not do while acting as security guards.
Instead, Webber alleges that No Labels employees did not intervene in the officers' actions. Webber alleges that another defendant, Doucette, who was Co-chair of the New Hampshire Trump for President campaign and not a No Labels employee, suggested that he had the authority to remove Webber from the event and asked Webber if he had to get an officer to get Webber to leave. The officers and Deck then removed Webber from the room. Although Webber cites his allegation that "Defendants were often communicating through radios and headset apparatus," doc. no. 75 at ¶ 168, to show evidence that all defendants were working together against him, mere communications among unnamed defendants does not show that No Labels was providing "continuous prescription" to the officers of what they should or should not do. As such, Webber's allegations do not show that No Labels exercised control over the manner in which the officers conducted their security work that would support an agency relationship for purposes of vicarious liability.
The claims against No Labels for assault, battery, intentional infliction of emotional distress, fraud, and false imprisonment in Counts I, II, III, VI, and VII are based on a theory of vicarious liability. Because Webber has not alleged facts to show that No Labels is vicariously liable for those torts allegedly committed by the defendant police officers, these claims are dismissed against No Labels.
Webber brings claims against No Labels under § 1983 in Counts VIII, X, XI, XII, XIII, XV, XVI, and XVII. No Labels moves to dismiss those claims on the ground that it is a private entity, not a state actor, as is required for liability under § 1983. Webber contends that No Labels can be deemed to be a state actor because it conspired or participated in joint action with the defendant police officers.
Section 1983 provides a remedy against persons who, while acting under color of state law, deprive others of rights secured by the federal constitution or federal law.
A civil rights conspiracy requires an agreement between two or more persons to violate the plaintiff's federally protected rights.
Webber points to several allegations in his complaint which he claims support his theory that No Labels and the defendant police officers took joint action or acted in a conspiracy to violate his federal rights. For example, he cites his allegation that an unknown No Labels staff member "engage[d] in unwanted touching" with him. Doc. no. 75 at ¶ 45. He also cites his allegations that Officer Pittman grabbed him from behind without warning, that the officers conferred with each other about Webber's intent to file a complaint against them, that unnamed defendants often communicated "through radios and headset apparatus," and that the officers arrested him. In addition, Webber also cites his allegations that Doucette, Deck, Trump Campaign staff, and unidentified others made a "human wall" around him to block him from returning to his seat; that Deck and Pittman threw him into a table; that Deck, Pittman, and Cosio pushed him and threw him to the ground; that Aldenberg told him he was not detained; and that the officers arrested him.
Webber's cited allegations do not show that anyone from No Labels acted jointly or conspired with the defendant police officers to violate Webber's federal rights. The only allegation that involves participation by anyone from No Labels is that, at some point, an unknown member of No Labels engaged in "unwanted touching" with Webber. Webber fails to explain how that allegation is sufficient to show cooperation between No Labels and the defendant police officers so as to give rise to a § 1983 claim.
Although Webber alleges various actions by the defendant police officers, he does not point to any allegations that show an agreement to violate his rights or willful participation in the actions that he says violated his rights. Webber has not provided any factual allegations, much less detailed allegations, about joint action or a conspiracy between No Labels and the defendant police officers.
Therefore, Counts VIII, X, XI, XII, XIII, XV, XVI, and XVII are dismissed as against No Labels.
No Labels moves to dismiss Webber's remaining claims, for negligence and negligent hiring, on the ground that it did not owe a duty to Webber. In support of both claims, Webber asserts that No Labels owed him a duty to keep him safe from assault and battery by the other defendants while he was attending the event. No Labels responds that it owed no such duty.
To state a claim for negligence, a plaintiff must allege facts that show the defendant owed him a duty, breached that duty, and that the breach caused the plaintiff harm.
When a plaintiff contends that a defendant failed to provide a safe environment, he must allege facts to show that "it was reasonably foreseeable that an injury might occur because of the defendant's actions or inactions."
To support his negligence claims, Webber alleges, based on information and belief, that Trump was known for acts of violence, that Deck had a history of assaults and batteries, that Trump Campaign security also was prone to commit assaults and batteries, and that Manchester police officers have a history of misconduct and that No Labels "knew or should have known ... that Manchester Defendants would be likely to commit intentional misconduct." Doc. no. 126 at 17. He alleges that No Labels had a duty to protect him from Deck, Trump Campaign security staff and supporters, and the defendant police officers.
Despite Webber's personal impressions of those attending the No Labels event, including the police officers who No Labels hired as security, he provides no factual allegations to show that No Labels knew he was in danger. In other words, Webber provides no allegations that show it was reasonably foreseeable to No Labels that he would be forcibly removed from the event by the defendant police officers and other security staff, and that he would be assaulted during that removal. Further, Webber does not provide allegations to show that No Labels should have done something that would have prevented the interaction he had with security. As a result, Webber's allegations do not show that No Labels owed him a duty to make the event safe for his particular activities or that No Labels owed him a duty to use reasonable care in hiring or supervising anyone at the event.
Therefore, Webber's negligence claims in Counts IV and V against No Labels are dismissed.
For the foregoing reasons, Webber cannot maintain any of his claims against No
Webber alleges that Deck owns XMark and that XMark has done work for and been paid by the Trump Campaign. Of Webber's eighteen claims asserted in his second amended complaint, fifteen of them are brought against XMark. They include several state law claims, such as: Assault (Count I), Battery (Count II), Intentional Infliction of Emotional Distress (Count III), Negligence (Count IV), Negligent Hiring (Count V), Fraud (Count VI), and False Imprisonment (Count VII). Webber also asserts eight federal claims under 42 U.S.C. § 1983, including Unreasonable Seizure (Count VIII), Excessive Force (Count IX), two counts of Violation of the First Amendment (Counts X and XI), Negligent Hiring and Retention (Count XII), Negligent Supervision (Count XIII), False Imprisonment (Count XV), and False Arrest (Count XVI).
XMark moves to dismiss all claims against it as barred by the applicable statute of limitations. In support, XMark points out that a three-year limitation period applies to all of Webber's claims against it, that those claims arose from events that occurred in October 2015 at the No Labels event, and that Webber did not bring claims against XMark until he filed his first amended complaint in April 2019, more than three years later.
Webber concedes that each of his claims against XMark is governed by a three-year statute of limitations and that he did not bring claims against XMark until after the limitations period passed. He argues that his claims against XMark are not time-barred, however, for three reasons: (1) his claims against XMark relate back to his original complaint; (2) the discovery rule applies to toll the limitations period; and (3) XMark fraudulently concealed its relationship with Deck.
Federal Rule of Civil Procedure 15(c)(1)(C) provides that that an amendment to a complaint relates back to the original complaint for purposes of changing or adding a party when the claim would otherwise be time-barred if three conditions are met.
XMark does not dispute that the first two conditions of Rule 15(c) are satisfied. The claims against XMark arise from the No Labels event, which was also the basis for the claims in the original complaint. And there is also no dispute that XMark received timely service.
XMark contends that the third condition, however, is not met. Specifically, it argues that the relation back rule does not apply here because there was no "mistake concerning the proper party's identity." XMark contends that although Webber may have been unaware of XMark's alleged role in the incident at the No Labels event at the time he filed his original complaint, Webber did not mistakenly name the wrong defendant.
Because Webber's claims against XMark in the second amended complaint relate back to the original complaint, the court need not address Webber's remaining arguments as to why his claims are not time-barred. The court notes for the sake of clarity, however, that even if the claims did not relate back, the discovery rule would also apply to save the claims.
Of Webber's eighteen claims asserted in his second amended complaint, sixteen of them are brought against the Trump Organizations. They include several state law claims, such as: Assault (Count I), Battery (Count II), Intentional Infliction of Emotional Distress (Count III), Negligence (Count IV), Negligent Hiring (Count V), Fraud (Count VI), and False Imprisonment (Count VII). Webber also asserts nine federal claims under 42 U.S.C. § 1983, including Unreasonable Seizure (Count VIII), Excessive Force (Count IX), two counts of Violation of the First Amendment (Counts X and XI), Negligent Hiring and Retention (Count XII), Negligent Supervision (Count XIII), False Imprisonment (Count XV), False Arrest (Count XVI), and Retaliation (Count XVII).
The Trump Organizations move to dismiss all the claims asserted against them on the grounds that the court lacks personal jurisdiction over them, the claims are time-barred, and Webber fails to state actionable claims against them. Webber contends that the Trump Organizations have sufficient contacts with New Hampshire to support personal jurisdiction, that the relation back rule under Federal Rule of Civil Procedure 15(c) and equitable tolling doctrines make the claims timely, and that the claims are actionable because Deck was an employee and/or agent of the Trump Organizations.
When personal jurisdiction is contested, the plaintiff bears the burden of establishing that the court has such jurisdiction.
"To make a prima facie showing of jurisdiction, a plaintiff may not rest on the pleadings. Rather, he or she must `adduce evidence of specific facts' that support jurisdiction."
Personal jurisdiction is determined based on the forum state's long-arm statute and must also comply with the due process requirements of the federal constitution.
Within the confines of due process, personal jurisdiction may be general or specific.
"Specific jurisdiction exists when there is a demonstrable nexus between a plaintiff's claims and a defendant's forum-based activities."
The Trump Organizations argue that Webber has not carried his burden to point to any facts that show it had sufficient contacts with New Hampshire to establish specific or general jurisdiction. The court agrees.
In the second amended complaint, Webber identifies The Trump Organization, Inc. as a company with its principal place of business in New York City. He alleges that defendant Donald Trump is the principal owner of the company and was the executive in charge at the time of the No Labels event. Webber alleges that Trump Organization LLC is a "New York limited liability company, a multinational conglomerate engaged in inter alia, real estate development, management and brand licensing." Doc. no. 75 at ¶ 6. Thus, Webber does not allege that the Trump Organizations themselves had any contact with New Hampshire.
In his objection, Webber points to his allegations that "based upon information and belief," one of the Trump Organizations had made payments to Deck or XMark prior to the No Labels event.
Webber has adduced no specific facts supporting the existence of personal jurisdiction with regard to the Trump Organizations. Webber provides no substantiation for his allegation, based on information and belief, that the Trump Organizations made payments to Deck or XMark.
Because Webber has not shown that the court has personal jurisdiction over the Trump Organizations, the court need not address the Trump Organizations' remaining arguments. All claims against those entities are dismissed.
Webber alleges fifteen of his eighteen claims against Trump. The three not alleged against Trump are federal claims for negligent supervision (Count XIII), malicious abuse of process (Count XIV), and failure to intervene (Count XVIII).
Trump moves to dismiss all the claims against him, arguing that the court should decline to exercise jurisdiction over those claims and that Webber has not alleged facts to support his claims against him. In response, Webber asserts that claims may be brought against a sitting president, that Trump is liable as the alter ego of the Trump Campaign and The Trump Organizations, that as the alter ego of those entities Trump is vicariously liable for others' actions, and that Trump was a state actor by acting jointly with the defendant police officers. Trump disputes Webber's theories of alter ego status, vicarious liability, and joint action.
Relying on
In this case, Webber is not challenging Trump's official acts as president. Instead, the suit brings claims based on the No Labels event that occurred before the presidential election. For that reason, there is no danger in this case of intruding into the authority and functions of the president. In considering the other pertinent factors, the court concludes that there is no need to decline to exercise jurisdiction or to stay the case.
As alleged in the second amended complaint, the only interaction between Webber and Trump at the No Labels event occurred when Webber asked Trump if he was aware that Webber had been assaulted at a rally in Rochester, New Hampshire. Trump answered that Webber looked healthy. Therefore, Webber's claims against Trump do not arise from Trump's own actions, but rather from the actions of others that occurred after that exchange.
In his objection to Trump's motion to dismiss, Webber argues that Trump is liable because he is the alter ego of the Trump Campaign and the Trump Organizations. Webber relies on legal standards for alter ego status from other states and does not explain why those standards, instead of New Hampshire law, would apply here. After Trump pointed out Webber's mistake, Webber argued in his surreply that he alleged sufficient facts to show alter ego status under New Hampshire law.
As discussed
In New Hampshire, application of the alter ego doctrine, or piercing the corporate veil, allows the court to ignore the legal separation between owners and the corporation.
Webber argues that Trump is the alter ego of the Trump Campaign because he controlled that entity. Although the second amended complaint includes allegations of the relationship between Trump and the Trump Campaign, it provides no grounds to support the application of the alter ego doctrine. Webber provides no allegations that Trump used the identity of the Trump Campaign to promote a fraud on Webber in the context of his claims in this case.
Webber also contends that Trump is vicariously liable for the actions of the Trump Campaign, Deck, and Doucette because they were his employees. In support, Webber cites his allegations that Trump watched the behavior of the other defendants during the No Labels event. He also states, based on information and belief, that "the Federal Election Commission (FEC) has documented sizable payments from the Trump Campaign to Defendants Trump, Deck, Doucette, XMark Companies and City of Manchester for services at or around the time of the events in this complaint." Doc. no. 75 at ¶ 112.
Webber fails to explain how Trump's actions of watching the other defendants' behavior during the No Labels event could give rise to vicarious liability. In addition, Webber's allegations concerning payment, if taken as true, establish only that the Trump Campaign paid Trump and others, not that Trump personally paid any defendant. Webber does not allege any grounds to show that Trump personally employed the Trump Campaign, Deck, or Doucette or that Trump is vicariously liable for their actions based on another relationship. Therefore, vicarious liability is not a viable theory to show Trump's liability in this case.
Webber asserts several claims against Trump under § 1983. Trump moves to dismiss those claims on the ground that at the time of the events giving rise to Webber's claims, he was not a state actor, as is required for liability under § 1983. Webber contends that Trump can be deemed to be a state actor because he conspired or participated in joint action with the defendant police officers.
As explained
Webber has not alleged facts to show that Trump's own actions gave rise to any of the claims asserted against him. Webber also has not provided facts to show a basis for applying the alter ego doctrine or to support vicarious liability. Therefore, he has not stated a claim against Trump.
For the foregoing reasons, No Labels' motion to dismiss (doc. no. 100), the Trump Organizations' motion to dismiss (doc. no. 115), and President Donald J. Trump's motion to dismiss (doc. no. 98) is granted. All claims against these defendants are dismissed. XMark's motion to dismiss (doc. no. 96) is denied.
SO ORDERED.
