United States District Court, D. New Hampshire
B. McCafferty United States District Judge
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.
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) (doc. no. 96);
Trump Organization, LLC and The Trump Organization, Inc.
(“Trump Organizations”) (doc. no. 115); and
President Donald J. Trump (doc. no. 98).
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.
Breiding v. Eversource Energy, 939 F.3d 47, 49 (1st
Cir. 2019). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
following background information is summarized from
Webber's second amended complaint, document No. 75. The
complaint is forty-five pages long, single-spaced, followed
by thirty-two pages of additional material that Webber labels
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 2015,
where his reading from the Bible, “First Timothy,
” caused him to be evicted from the
event. He also attempted to attend a Trump
Campaign event on September 30 but was turned away
“because he was wearing religious attire.”
Id. at 8.
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.
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
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.
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.
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
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.
waved to Trump to signal for access to the microphone. James
Pittman, an officer with the Manchester Police Department,
Deck grabbed Webber's arms, moved him past the seating in
the back of the room, and threw him into a table, which
knocked the table over. No. Labels employees who were aware
of what was happening did not intervene.
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
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.
walked away from the hotel and stopped at a park bench with
Aldenberg. He asked Aldenberg to file a complaint against the
people who Webber said had assaulted him. Aldenberg took
notes and then went back to the hotel to retrieve
Webber's camera battery. Webber saw that Aldenberg was
talking with Pittman, Cosio, and Craig. As Craig walked
toward him, Webber shouted to Aldenberg to keep him away.
Aldenberg, Pittman, and Craig then arrested 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
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. He alleged
eighteen claims against the various defendants.
discussed supra, several defendants have filed motions to
dismiss. The court addresses the various motions separately.
Labels' Motions to Dismiss
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
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.
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 claims for
Negligence (Count IV) and Negligent Hiring (Count V) on the
ground that it did not breach any duty of care.
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.
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. No. Labels asserts that there is
no basis for its vicarious liability for those torts.
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.
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. Tessier v. Rockefeller, 162
N.H. 324, 342 (2011). Although Webber refers to the defendant
police officers as No. Labels' “employees or
agents, ” the second amended complaint contains no
allegations that the officers were No. Labels employees. At
most, there is an allegation that No. Labels paid the
officers to act as security guards for the event. Such an
arrangement does not make the officers No. Labels employees,
but instead makes them independent contractors. See
Abbott v. Town of Salem, No. CIV 05-CV-127-SM, 2007
WL 764483, at *3 (D.N.H. Mar. 12, 2007).
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.” Arthur v. Holy Rosary Credit
Union, 139 N.H. 463, 465 (1995). Vicarious liability may
extend to independent contractors, however, when a plaintiff
can establish the following elements: “(1)
authorization from the principal that the agent shall act for
him or her; (2) the agent's consent to so act; and (3)
the understanding that the principal is to exert some control
over the agent's actions.” Dent v. Exeter
Hosp., Inc., 155 N.H. 787, 792 (2007). “Control by
the principal does not mean actual or physical control at
every moment; rather, it turns upon the principal manifesting
some continuous prescription of what the agent shall or shall
not do.” Id. (internal quotation marks
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
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.
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