Romero v. Event Security LLC

Filing 51

ORDER granting in part and denying in part 37 Motion for Judgment on the Pleadings; granting 38 Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 5/9/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RICARDO ROMERO,
Plaintiff,
v.
PRO SECURITY, LLC d/b/a EVENT
SECURITY, LLC, EVENT SECURITY,
LLC, JACOB ARGRAVES,
BACKWOODS PRODUCTIONS, LLC,
a/k/a BACKWOODS MUSIC FESTIVAL
LLC,
Defendants.

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Case No. CIV-16-595-R

ORDER
This 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
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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. Doc. 38.
The 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).
The 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

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Security.1 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.2 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,

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At this point, the Court will pause to note that there seems to be genuine confusion, more appropriate for
resolution at trial, about Mr. Argraves’s relationship to Pro Security and Event Security. The Complaint
alleges that Mr. Argraves owned Pro Security and was a former employee or contractor for Event Security.
The contract Backwoods entered into for security services, however, was with Event Security. Doc. 15, ¶
3; Doc. 43, Ex. 3. Defendants contend that Mr. Argraves is the sole member and owner of Pro Security, and
that Event Security is simply the trade name under which Pro Security does business. Doc. 37, at 2. Adding
to the confusion is the fact that Event Security was at one point registered with the Oklahoma Secretary of
State to do business but that on August 20, 2015, when it contracted with Backwoods, it was inactive. Doc.
43, Ex. 1. It would later reactivate on September 1, 2015—four days before the incident with Mr. Romero.
It also appears that Mr. Argraves did not register Pro Security with the Oklahoma Secretary of State until
August 25, 2015—after he signed the Backwoods contract but before the Romero incident. Doc. 47, Ex. 1.
The Court takes judicial notice of these dates. See U.S. v. Iverson, 818 F.3d 1015, 1028 (10th Cir. 2016).
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“Members and managers of limited liability companies shall be afforded the same substantive and
procedural protection from suits and claims as the protections provided to officers, directors and
shareholders of a corporation as set forth in subsection B of this section.” Okla. Stat. tit. 12, § 682(C).

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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.
Mr. 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.
The 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
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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.
The 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.
Mr. 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
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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 liability.
This is 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 respondeat superior.
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On the 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 therefore remain.
In conclusion, Defendant Argraves’s Motion to Dismiss [Doc. 38] claims against
him is GRANTED. Defendants’ Motion for Partial Judgment on the Pleadings [Doc. 37]
is GRANTED in part and DENIED in part.
IT IS SO ORDERED this 9th day of May 2017.

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