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Webber v. Deck

United States District Court, D. New Hampshire

January 6, 2020

Roderick Webber
Edward Deck, et al.


          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)[1] (doc. no. 96); Trump Organization, LLC and The Trump Organization, Inc. (“Trump Organizations”) (doc. no. 115); and President Donald J. Trump (doc. no. 98).


         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. 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).


         The 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 as appendices.[2]

         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 2015, where his reading from the Bible, “First Timothy, ” caused him to be evicted from the event.[3] 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.

         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, [4] and 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.

         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 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.

         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.[5] He alleged eighteen claims against the various defendants.


         As discussed supra, several defendants have filed motions to dismiss. The court addresses the various motions separately.

         I. No. Labels' Motions to Dismiss

         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).[6]

         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 claims for Negligence (Count IV) and Negligent Hiring (Count V) on the ground that it did not breach any duty of care.

         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.

         A. Vicarious Liability

         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.[7] No. Labels asserts that there is no basis for its vicarious liability for those torts.

         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. 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).

         “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.”[8] 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 omitted).

         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.[9]

         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 ...

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