United States District Court, W.D. Oklahoma
I.. RUSSELL UNITED STATES DISTRICT JUDGE
case arises from a September 2015 altercation at the
Backwoods Music Festival, an overnight campout and weekend
concert set outside Stroud, Oklahoma. The altercation began
when Plaintiff Ricardo Romero, a manager for one of the bands
performing at the Festival, allegedly tried to exit the
Festival grounds. Anthony Creek, who had allegedly been hired
as a security guard by either Pro Security, LLC, or Event
Security, LLC, seriously cut Mr. Romero's upper arm with
a knife or scissors while trying to remove Mr. Romero's
festival-wristband. Doc. 15, at 3-4. Mr. Romero asserts
claims for negligent hiring, training, and supervision
against all Defendants, and a claim for respondeat-superior
negligence against Mr. Argraves, Event Security, and Pro
Security. Mr. Romero argues that his injuries stem from
Defendants' decision to hire former felons, such as
Creek, who lacked the required state license, to serve as
security guards. Id. at 3. All Defendants have moved
for partial judgment on the pleadings, arguing that Oklahoma
law forecloses Plaintiff's claim for negligent hiring,
training, and supervision. Doc. 37. In addition, Defendant
Jacob Argraves has moved to dismiss the claims against him.
Court applies the same standard in deciding both Motions.
“A motion for judgment on the pleadings under Rule
12(c) is treated as a motion to dismiss under Rule
12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank
of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). And in
deciding a motion to dismiss under Rule 12(b)(6) for failure
to state a claim, the Court considers whether, per the
pleading requirements of Rule 8(a)(2), the complaint contains
a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for Deaf
& Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(internal quotation omitted). Further, the Court “must
accept all the well-pleaded allegations of the complaint . .
. and must construe them in the light most favorable to the
[non-moving party].” Thomas v. Kaven, 765 F.3d
1183, 1190 (10th Cir. 2014).
Court first addresses Defendant Jacob Argraves's Motion
to Dismiss. Argraves, allegedly the sole member and manager
of Pro Security, argues that Oklahoma law precludes him from
being held liable for the debts or liabilities of Pro
Security or Event Security. He points to Okla. Stat. tit. 12,
§§ 682(B), (C) for the proposition that his status
as a member of Pro Security cannot serve as the basis for
imposing liability on him given the fact that there currently
is not an unsatisfied judgment against his company:
No suit or claim of any nature shall be brought against any
officer, director or shareholder for the debt or liability of
a corporation of which he or she is an officer, director or
shareholder, until judgment is obtained therefor against
the corporation and execution thereon returned
unsatisfied. This provision includes, but is not limited
to, claims based on vicarious liability and alter ego.
Okla. Stat. tit. 12, § 682(B) (emphasis added).
Section 682(C) extends identical protections to members and
managers of limited liability companies. And considering
that Okla. Stat. tit. 18, § 2022 provides that a member
of an LLC is not liable for the obligations of the company
solely by his or her status as a member or manager, Oklahoma
law is quite clear that Mr. Argraves will not face liability
for his actions taken in his official capacity for Pro
Security and Event Security. In other words, Mr. Argraves
contracting with Backwoods to provide security, Doc. 15,
¶ ¶ 3, 17-all done on behalf on Event
Security-cannot serve as the basis of tort liability.
Romero, though, insists that Mr. Argraves was not acting in
an official capacity with Event Security when he signed the
contract with Backwoods because Event Security was at the
time an inactive entity. He insists that, as a result,
“the liability shield afforded to members of LLCs [such
as Mr. Argraves] was not in effect when the contract [was]
executed.” AT&T Advertising, L.P. v.
Winningham, 280 P.3d 360, 365 (Okla.Civ.App. 2012). That
would be the case if Mr. Romero was suing Event Security or
Pro Security for breach of contract. If so, Mr. Argraves
could not claim the protections of officer- or
member-immunity by way of a corporation that did not exist at
the time of contracting. But he's not. (Mr. Romero, after
all, is not even a party to the contract.). Instead, Mr.
Romero seeks to hold Mr. Argraves personally liable for the
alleged negligence of Pro Security and Event Security that
occurred on September 5, 2015, when its employee allegedly
cut Mr. Romero. On that day, however, Pro Security and Event
Security were active entities. The claims against Mr.
Argraves are therefore dismissed.
second Motion before the Court is Defendants' Motion for
Judgment on the Pleadings. All Defendants argue that Mr.
Romero's claims for negligent hiring, training and
supervision fail as a matter of Oklahoma law. Defendants
point to Jordan v. Cates, in which the Oklahoma
Supreme Court held that “where the employer stipulates
that liability [exists] under the respondeat
superior doctrine . . . any other theory for imposing
liability on the employer [is] unnecessary and
superfluous.” 935 P.2d 289, 293 (Okla. 1997). In other
words, under Jordan an employer cannot be held
liable for negligent hiring and retention if the employer
admits that its employee acted within the scope of its
employment in injuring the plaintiff and the employer could
therefore be liable under the doctrine of respondeat
superior. Id.; see also see Cardenas v.
Ori, No. CIV-14-386-R, 2015 WL 2213510, *2-3 (W.D. Okla.
May 11, 2015) (relying on Jordan to grant summary
judgment to employer on Plaintiffs' claims for negligent
hiring, training, supervision, and retention and nothing that
“federal courts in Oklahoma generally have extended
Jordan to negligence claims”). So long as
Defendants stipulate that they would be liable for
Creek's negligence under respondeat superior, the claim
for negligent hiring, training, and supervision fails as a
matter of law.
question is whether Defendants have made this stipulation.
Pro Security's and Event Security's Joint Answer
first states that Mr. Creek's actions would fall outside
the scope of his employment with Pro Security and/or Event
Security. Doc. 19, ¶ 17. Yet the Defendants claim near
the end of their Answer that in light of Jordan, Mr.
Romero's claim for negligent hiring, training, and
supervision fails. Id. at ¶ 24. Pro
Security's Responses to Plaintiff's Requests for
Admissions, Doc. 37, also admits to respondeat superior
liability, as does their Motion for Judgment on the
Pleadings. The Court will therefore construe this as an
admission by Pro Security and Event Security that they may be
held liable for the negligence of Creek. Given that
stipulation and the precedent of Jordan v. Cates,
Pro Security and Event Security cannot face liability under a
negligent hiring, training, or supervision theory.
Romero, however, insists that Jordan does not apply.
He cites a 1994 Third Circuit decision involving 42 U.S.C.
§ 1983 claims for the idea that an employee need not
commit a constitutional violation for its governmental
employer to be held liable for its injurious conduct.
Fagan v. City of Vineland, 22 F.3d 1283 (3d Cir.
1994). His point seems to be that his claims for negligent
hiring and training may not be superfluous if the jury were
to find that Pro Security and Event Security were not liable
for the actions of Mr. Creek by way of respondeat superior.
He insists that as a result he may require both theories to
establish entity liability given the absence of vicarious
wrong for several reasons. One, there is no absence of
vicarious liability here: Defendants have stipulated to it.
Two, the Oklahoma Supreme Court's express reasoning in
Jordan was that “[b]ecause vicarious liability
can include liability for punitive damages, the theory of
negligent hiring and retention imposes no further liability
on [an] employer.” Jordan, 935 P.2d at 293. In
other words, a plaintiff does not need a direct negligence
claim against an employer to recover punitive damages because
he may do so by successfully litigating his respondeat
superior claim. So too for Mr. Romero. Three, his analogy to
42 U.S.C. § 1983 and reliance on Fagan is
misguided. Aside from the fact that there is no respondeat
superior liability under 42 U.S.C. § 1983 (meaning that
imposing employer liability calls for more than an
unconstitutional act by an employee-state actor), the Tenth
Circuit has rejected Fagan in holding that a
“claim of inadequate training [and] supervision . . .
under § 1983 cannot be made out against a supervisory
authority absent a finding of a constitutional violation by
the person supervised. “ Trigalet v. City of Tulsa,
Oklahoma, 239 F.3d 1150, 1154 (10th Cir. 2001). Mr.
Romero's claims against Pro Security and Event Security
for negligent hiring and training are thus superfluous
because they may face liability under the principle of
other hand, the claim for negligent hiring and training
against Backwoods is not superfluous. Without this
claim, Mr. Romero has no way to recover against Backwoods
since he has not asserted negligence through respondeat
superior against the company. (Nor would it make much sense
to do so: Mr. Creek was not an employee of Backwoods). The
negligent hiring and training claim against Backwoods will
conclusion, Defendant Argraves's Motion to Dismiss [Doc.
38] claims against him is GRANTED. Defendants' Motion for
Partial Judgment on the Pleadings ...