Search v. Uber Technologies, Inc. , 128 F. Supp. 3d 222 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIK SEARCH,
Plaintiff,
v. Civil Action No. 15-257 (JEB)
UBER TECHNOLOGIES, INC. et al.,
Defendants.
MEMORANDUM OPINION
For generations, parents have admonished their children not to get into cars with
strangers. See, e.g., Forrest Gump (Paramount Pictures 1994) (“Mama said not to be taking rides
from strangers.”). But in today’s “sharing economy,” that warning is an anachronism: every day,
millions of Americans summon unknown drivers with the press of a button. At the same time,
the danger of taking a ride from a stranger has not entirely disappeared. As with other growing
pains of twenty-first-century economics, courts must now determine what is to be done about the
risk of that old-fashioned danger in a market shaped by new players and new technologies.
Plaintiff Erik Search filed this lawsuit against Uber Technologies, Inc., claiming that it is
liable for an alleged knife attack by one of its drivers, Yohannes Deresse. Search has asserted,
inter alia, claims of negligent hiring, training, and supervision; negligence under respondeat
superior and apparent-agency theories; and violations of the D.C. Code. Whether Uber is liable
for many of these depends on whether it was – or presented itself as – Deresse’s employer.
In now moving to dismiss, Uber argues that Deresse was instead merely an independent
contractor. It maintains that it “is not a transportation company,” but rather “a technology
company that acts as a conduit between transportation providers and passengers.” Mot. at 1.
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Search responds that Defendant now seeks to disavow, for its own legal expediency, the
promotional language and promises that helped it amass a broad consumer base and multi-
billion-dollar valuation – in his view, Uber’s is a classic corporate case of trying to have one’s
cake and eat it, too. Both sides’ rhetoric notwithstanding, the Court concludes that it is
premature to decide most of these issues at this time. This is because, in its Motion to Dismiss,
Uber relies predominantly on factual information outside the four corners of Plaintiff’s
Complaint. For the reasons that follow, consequently, the Court will deny in large part, and
grant in part, Uber’s Motion.
I. Background
According to the Amended Complaint, which the Court must presume to be true at this
stage, Defendant Uber “is a car service that provides drivers to customers on demand through a
cell phone application, or ‘app,’ in cities around the world.” Am. Compl., ¶ 6. In its app –
which is free to download and install on any smartphone – the company markets itself to
consumers as “your private driver in more than 50 countries.” Id., ¶¶ 6, 10.
Uber’s business model operates as follows: it dictates the fares charged in each
jurisdiction in which it operates, collects the appropriate payment from each passenger, and then
passes on to its drivers 75-80% of the fares collected while keeping the remaining portion for
itself. See id., ¶ 11. Notably, “Uber drivers do not collect any form of payment directly from
consumers; rather, they receive payment for their work . . . via weekly direct deposit.” Id., ¶ 12.
Drivers are not permitted to set their own fares, accept cash payment from consumers, or
retroactively adjust a fare up or down. See id., ¶¶ 13-14.
Defendant “subjects its drivers,” moreover, “to a host of specific requirements
concerning the performance of their driving duties.” Id., ¶ 15. Among other things, the
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company demands that its drivers “utilize an app on a phone provided by Uber”; maintain their
vehicles in “great” mechanical shape and “acceptably clean” condition; “adhere to Uber’s rules
regarding tipping,” which include refusing tips once and accepting them only on the second
offer; sustain an acceptable ride-request-acceptance rate; respond to ride requests within an
acceptable timeframe; “display the Uber logo on their vehicles”; and refrain from excessively
calling passengers who have requested a ride. See id.
On September 8, 2013, Plaintiff Erik Search and three of his friends required
transportation from 3030 K Street, NW, in the District of Columbia. See id., ¶ 16. As he had on
multiple past occasions, Search used the Uber app on his phone to request a pick-up at that
location. See id., ¶¶ 16-17. On that evening, Uber driver Yohannes Deresse accepted Plaintiff’s
request and arrived shortly thereafter. See id.
Immediately following the group’s entry into the car, Deresse “began to act erratically.”
See id., ¶ 18. Uncomfortable with Deresse’s behavior, Search and his companions exited the
vehicle and began walking away. See id., ¶¶ 18-19. According to Plaintiff, Deresse followed
them out of the car and began to verbally harass them. See id., ¶ 19. In response, Search told the
driver “to leave them alone,” and that “they did not feel safe riding in an Uber car with him.”
See id., ¶ 20.
At that point, the verbal dispute escalated into physical violence. As Search recounts,
Deresse pulled out a knife and stabbed him at least six times in his chest and left arm. See id., ¶¶
21-22. Plaintiff sustained severe injuries during the course of the brutal attack, requiring him to
undergo “CT scans, x-rays, surgical exploration of the chest wound, diagnostic laparoscopy,
cauterization, and muscle reconstruction with sutures and staples.” Id., ¶ 22. In addition,
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Plaintiff suffered “pain, mental anguish, humiliation, and indignity” as a result of the assault.
Id., ¶ 23.
Naming Deresse and Uber as Defendants - as well as another entity since dismissed, see
ECF No. 15 (Stipulation of Dismissal) - Plaintiff filed suit in D.C. Superior Court, alleging a
variety of state-law tort claims and one violation of the D.C. Consumer Protection Procedures
Act, codified at D.C. Code § 28-3905(k). Uber, in turn, removed the suit to federal court on
diversity grounds and now moves to dismiss all causes of action lodged against it. (Deresse has
not yet been served.)
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief
when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a
motion to dismiss under Rule 12(b)(6), the Court must “treat the complaint’s factual allegations
as true and must grant plaintiff the benefit of all inferences that can be derived from the facts
alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal
quotation marks and citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
court need not accept as true, however, “a legal conclusion couched as a factual allegation,” nor
an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178,
193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although “detailed
factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, [if]
accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(internal quotation marks omitted). Though a plaintiff may survive a Rule 12(b)(6) motion even
if “recovery is very remote and unlikely,” the facts alleged in the complaint “must be enough to
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raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56 (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the
complaint, see Fed. R. Civ. P. 12(d), which includes statements adopted by reference as well as
copies of written instruments joined as exhibits. See Fed. R. Civ. P. 10(c). Where the Court
must consider “matters outside the pleadings” to reach its conclusion, a motion to dismiss “must
be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d); see also Yates v.
District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003). Such conversion is premature,
however, if all parties have not yet had the “opportunity to present evidence in support of their
respective positions.” Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011) (citing Fed. R.
Civ. P. 12(d)).
III. Analysis
In the instant Motion, Uber moves to dismiss five of the eight counts in the Amended
Complaint. The Court analyzes each in turn, after first resolving a threshold procedural issue.
A. Conversion to Motion for Summary Judgment
A motion to dismiss under Rule 12(b)(6) must rely solely on facts within the four corners
of the Complaint, and the Court must adjudicate the Motion under the same constraint. See Fed.
R. Civ. P. 12(d); see also Hawkins v. Boone, 786 F. Supp. 2d 328, 332 (D.D.C. 2011). Here,
however, Defendants have submitted materials outside the Complaint along with their Motion –
namely, the Declaration of Rachel Holt, see Mot., Exh. 1, and Uber’s User Terms and Conditions
(User Agreement). See id., Exh. B. As previously mentioned, if a court considers such materials
in resolving a 12(b)(6) motion, it must convert the motion as filed into one for summary
judgment.
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Before such a conversion, the Court must “afford[] all parties reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.” Gordon v. Nat’l Youth Work
Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982) (internal quotation marks and citation omitted); see
also Mitchell v. E. Sav. Bank, FSB, 890 F. Supp. 2d 104, 108 (D.D.C. 2012) (declining to
convert motion to dismiss where doing so “would deny Plaintiff any opportunity in discovery to
develop his evidentiary support”). Ultimately, though, the decision “whether to accept extra-
pleading matter” and convert the motion to one seeking summary judgment is committed to the
discretion of the court. See 5C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ.
§ 1371 (3d ed.); see also Flynn v. Tiede-Zoeller, Inc., 412 F. Supp. 2d 46, 50-51 (D.D.C. 2006).
In this case conversion would be premature, as Plaintiff has not had a meaningful
opportunity to present supporting materials outside of his Complaint. Search nonetheless urges
the Court to treat Uber’s Motion as one for summary judgment and to deny it on the basis that
numerous material factual disputes persist despite the materials Defendant has submitted. See
Opp. at 8-9. The Court declines the invitation, believing that the more prudent course is to
confine its inquiry solely to the allegations in the Complaint. Both sides will have an
opportunity to present a fully developed record for summary judgment, if either side
subsequently so moves.
B. Count I: Negligent Hiring, Training, and Supervision
In the District of Columbia, employers operating public businesses are generally “bound
to use reasonable care to select employees competent and fit for the work assigned to them and
to refrain from retaining the services of an unfit employee.” Schecter v. Merchants Home
Delivery, Inc., 892 A.2d 415, 431 (D.C. 2006) (quoting Fleming v. Bronfin, 80 A.2d 915, 917
(D.C. 1951)) (internal quotation marks and citation omitted). When an employer has disregarded
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this duty and “as a result injury is occasioned to a third person,” liability may be imputed to the
employer “even though the injury was brought about by the willful act of the employee beyond
the scope of his employment.” Id. (quoting Fleming, 80 A.2d at 917) (internal quotation marks
and citation omitted). A master-servant relationship need not underlie a claim of negligent
hiring, for an entity may also be liable for the negligent-hiring of an independent contractor. See
Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16, 28 (D.D.C. 2008). Because it is thus irrelevant –
for this count – whether Deresse was an independent contractor or an employee, the Court will
presume he was an employee when analyzing the negligent hiring claim. The Court similarly
bears in mind that the direct-liability theory of negligent hiring is distinct from negligence based
on the vicarious-liability doctrine of respondeat superior; those claims, which Plaintiff also
raises, will be discussed infra.
Plaintiff asserts that Uber “had a duty to use reasonable care in the selection, hiring,
training, and supervision of its employees.” Am. Compl., ¶ 25. He alleges that it breached that
duty
by failing to hire personnel properly qualified to operate Uber
vehicles in a safe and reasonable manner; by failing to properly
screen potential employees . . . ; by failing to abide by proper
screening protocols before hiring employees . . . ; by hiring
dangerous and unstable drivers including Defendant Deresse; by
failing to provide follow-up, in-service safety training . . . ; by failing
to terminate Defendant Deresse prior to the incident in question; and
failing to properly supervise drivers while such drivers are operating
Uber vehicles.
Id., ¶ 27. Search furthermore believes that Uber “had actual or constructive notice of [its]
failures to properly hire, train, and supervise their employees,” and of “Deresse’s dangerous
nature, potential for violence and general unfitness for duty.” Id., ¶ 28. Indeed, according to
Plaintiff, Uber “knew to a moral certainty” that its drivers “would predictably experience
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confrontations with passengers, and that as a result of the failure to properly hire, train, and
supervise, criminal attacks o[n] District of Columbia residents would occur.” Id.
While Uber does not disagree that it has a duty to take reasonable care in hiring, training,
and supervising its drivers, it maintains that Plaintiff’s allegations about its negligence in this
area are “conclusory assertions . . . devoid of any factual matter.” Mot. at 11. The Court agrees.
Generally, “[a]n employer cannot be liable for negligent hiring if the employer conducts a
reasonable investigation into the person’s background or if such an investigation would not have
revealed any reason not to hire that person.” Exxon Mobil Corp., 573 F. Supp. 2d at 28-29.
Importantly, then, to state a claim for negligent hiring, a plaintiff must allege specific facts from
which an inference can be drawn that the employer did not conduct a reasonable background
investigation, and that such an investigation would have uncovered a reason not to hire the
alleged tortfeasor.
Here, Plaintiff fails to do either. His only factual allegations pertaining to Uber’s pre-
hiring screening consist of a quote from Uber’s promise, on its website, to conduct “a rigorous
background check” of “[a]ll Uber ridesharing and livery partners.” Am. Compl., ¶ 7. The
Complaint excerpts Uber’s own explanation of its background investigations, namely:
The three-step screening we’ve developed across the United States,
which includes county, federal and multi-state checks, has set a new
standard. These checks go back 7 years, the maximum allowable by
the Fair Credit Reporting Act. We apply this comprehensive and
new industry standard consistently across all Uber products . . . . Our
process includes prospective and regular checks of drivers’ motor
vehicle records to ensure ongoing safe driving. . . . [O]ur background
checking process and standards are . . . often more rigorous than
what is required to become a taxi driver.
Id. (quoting “Uber Background Checks,” http:// blog.uber.com/driverscreening). Plaintiff does
not allege that Uber did not actually conduct a background check consistent with these
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procedures prior to hiring Deresse. Furthermore – and fatally for his claim – Search does not
allege either that these background-investigation procedures were not reasonably calculated to
discover a “red flag” in Deresse’s past, or even that any such “red flag” existed. See Moseley v.
Second New St. Baptist Church, 534 A.2d 346, 349 n.6 (D.C. 1987) (explaining that plaintiff
must establish that employer “knew or should have known of any prior history of or tendency
toward assaults” to make out claim for negligent hiring).
The gravamen of Plaintiff’s complaint seems to be that Uber’s hiring mechanisms must
have been inadequate if they failed to uncover that Deresse “was emotionally unstable and
unqualified to be a driver, and that he was a danger to the public.” Am. Compl., ¶ 30. But this
res ipsa loquitur-style logic falls short of the threshold required to survive a Rule 12(b)(6)
motion. For Search does not allege that any reasonable background investigation would have
uncovered Deresse’s emotional instability and poor driving qualifications. Nor does he identify
any particular measures that Uber did not take that could have prevented the hiring of Deresse.
And the Rule “demands more than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678.
Since Search might contend that he cannot know, absent discovery, precisely what Uber
learned about Deresse at the time of his hiring, it may seem unreasonable to expect the
Complaint to offer a more detailed factual foundation for Plaintiff’s negligent-hiring claim. This
apparent Catch-22 is the reason that “detailed factual allegations are not necessary to withstand a
Rule 12(b)(6) motion,” but it does not excuse a Plaintiff’s failure to “put forth factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Kenley v. District of Columbia, -- F. Supp. 3d --, 2015 WL 1138274
(D.D.C. March 13, 2015) (internal quotation marks and citations omitted). Were that not the
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case, a plaintiff might merely invoke the magic words – e.g., “negligent hiring,” “constructive
knowledge,” and the like – and thereby subject a defendant to costly and potentially meritless
litigation. In addition, a plaintiff’s investigation of an employee before filing suit could
demonstrate than an employer did know (or should have known) of the employee’s prior
malfeasance.
Even reading his allegations in the light most favorable to Plaintiff, as the Court must, the
Amended Complaint offers little more than “[t]hreadbare recitals of the elements of” a negligent-
hiring claim, “supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. The Court
agrees with Defendant that, at best, Search’s allegations are “consistent with” Uber’s liability,
but fail to push his claims from the possible to the plausible. Id.
Search’s meager allegations pertaining to his negligent-training and -supervision claims
are even less robust: He does not offer any specific allegations about Uber’s training and
supervision programs, beyond the aforementioned quote from the company’s website. And he
does not assert that any particular training or supervisory programs would have prevented the
assault alleged here. As the Court, consequently, need not further consider these claims –
indeed, Search essentially ignored them in his Opposition – it will grant Defendant’s Motion to
Dismiss as to Count I.
C. Count IV: Respondeat Superior
Search’s fourth count seeks to hold Uber vicariously liable for Deresse’s actions. It is
hornbook law that “[u]nder the doctrine of respondeat superior, an employer may be held liable
for the acts of his employees committed within the scope of their employment.” Brown v.
Argenbright Sec., Inc., 782 A.2d 752, 757 (D.C. 2001) (quoting Boykin v. District of Columbia,
484 A.2d 560, 561 (D.C. 1984)). A claim for vicarious liability under a respondeat superior
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theory consists, therefore, of two prongs: an employer-employee relationship and a tortious act
committed by the employee within the scope of his employment. The Court addresses each in
turn.
1. Employer-Employee Relationship
The parties agree that in the District of Columbia, the question of whether an employer-
employee relationship exists is governed by a five-factor test that examines: (1) involvement in
the selection and engagement of the employee; (2) payment of wages; (3) power to discharge;
(4) power to control the employee’s conduct; and (5) whether the employee’s work is part of the
regular business of the employer. See Moorehead v. District of Columbia, 747 A.2d 138, 143
(D.C. 2000); LeGrand v. Insurance Co. of N. Am., 241 A.2d 734, 735 (D.C. 1968). Under this
test, the fourth factor – “the right to control an employee . . . and not the actual exercise of
control or supervision” – is usually “the determinative factor.” Moorehead, 747 A.2d at 143
(internal quotation marks and citation omitted). “Whether a master-servant (or principal-agent)
relationship exists in a given situation depends on the particular facts of each case,” and here, of
course, we must take the facts to be as Plaintiff has alleged them. Id. (internal quotation marks
and citation omitted).
Plaintiff asserts that Deresse was “an employee, agent, and/or servant” of Uber at the
time of the incident at issue in this case. See Am. Compl., ¶ 5. He alleges a number of facts that,
he believes, establish this employer-employee relationship: For instance, Uber screens new
drivers, dictates the fares they may charge, and pays such drivers weekly. See id., ¶¶ 7-12.
Search claims that “[u]pon threat of termination, Uber subjects its drivers to a host of specific
requirements,” including, inter alia, the use of the Uber app, standards for the cleanliness and
mechanical functioning of their cars, rules regarding tipping, minimum timeframes and
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acceptance rates for ride requests, and display of the Uber logo. See id., ¶ 15. According to
Plaintiff, these facts establish the first four factors of the aforementioned test. See Opp. at 12-13.
Search maintains that the fifth factor, whether Deresse’s work is part of Uber’s regular business,
is satisfied by his allegation that “Uber is a car service” for which Deresse was a driver. See
Am. Compl., ¶ 6; Opp. at 13.
The Court agrees, for the most part. The Amended Complaint sets forth facts illustrating
Uber’s involvement in the selection process of new drivers (by way of its screening procedures);
payment of wages (by paying drivers weekly rather than permitting them to collect payment or
tips directly from passengers); and termination of employees (by enjoying broad latitude to
terminate employees who fail to comply with the company’s standards). As to the question
whether driving is Uber’s regular business, Defendant simply disagrees with Plaintiff’s factual
allegation that the company is a “car service.” It does not argue – for good reason – that even if
Uber is a car service, as alleged, Deresse’s driving is not its regular work.
This leaves the fourth and “determinative” factor: whether Uber controlled Deresse’s
day-to-day operations or merely exercised general supervision over his activities. Uber contends
that an entity that monitors, evaluates, and improves the results of a worker’s performance is not
necessarily an employer. See Mot. at 7; see also N. Am. Van Lines, Inc. v. NLRB, 869 F.2d
596, 599 (D.C. Cir. 1989) (company may maintain “global oversight” over an independent
contractor without exercising the control of an employer). In Uber’s view, the “specific
requirements” cited by Plaintiff indicate such global oversight but “are not indicia of an
employer-employee relationship.” Mot. at 8.
Uber is correct that “the right to inspect [and] the right to set standards” are not
necessarily “indicia of control,” but may be “indicative of a contractual relationship” between an
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employer and independent contractor. Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985).
However, “the parties’ actual relationship, in spite of contractual language, may be the
conclusive factor.” Id. (emphasis added).
The District of Columbia Court of Appeals’ opinion in Schecter is instructive for this
issue. The court there examined a number of facts in determining whether a home deliveryman
who stole jewelry and other valuables from a customer was employed by the delivery company
for which he worked. The company made most decisions as to the routes, deliveries, clothing,
and morning start times of the deliveryman, accommodating some route preferences but “not
relinquishing control” over routes. Schecter, 892 A.2d at 425. Like Uber drivers, the
deliverymen enjoyed a “right to decline any” delivery requests, but only up to a point, for the
retail chain could mandate some deliveries. Id. And, like Uber drivers, deliverymen were
granted some flexibility with regard to timeliness; the delivery company afforded them delivery
windows, but it measured their performance based on timely deliveries and terminated those
whose performance was unsatisfactory. Id. Effectively, the delivery company “controlled in
some detail the manner in which a driver made each delivery.” Id. at 426. Based on these facts,
the court concluded, “An impartial juror could reasonably find” that the delivery company placed
“substantial limitation[s] upon the independence of those who wished to make deliveries” for the
company, “consistent with their being servants or employees, rather than independent
contractors.” Id. For that reason, the court reversed the trial court’s directed verdict for the
defendant.
Here, Plaintiff has alleged that Uber controls the rate of refusal of ride requests, the
timeliness of the drivers’ responses to requests, the display on vehicles of its logo, the frequency
with which drivers may contact passengers, the drivers’ interactions with passengers (including
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how they accept tips and collect fares), and the quality of drivers via its rating system. See
Am. Compl., ¶¶ 15, 8. Taking these allegations as true, a reasonable factfinder could conclude
that Uber exercised control over Deresse in a manner evincing an employer-employee
relationship.
In its Reply, Uber devotes considerable energy to an examination of an unpublished case
in this district, Ames v. Yellow Cab of D.C., No. 00-3116, 2006 WL 2711546 (D.D.C. Sept. 21,
2006), which it believes is on all fours with this one. In that case, the court held that Yellow Cab
operated a scheme to license its name and logo, not a cab service, and that individual cab drivers
were not its employees; consequently, the court granted summary judgment to Yellow Cab on
the respondeat superior claim. See id. at *7. But the facts of that case differ considerably from
those alleged in this Complaint: Yellow Cab could not terminate any of its employees but could
only cancel the licensing arrangement; Yellow Cab did not set a driver’s fares; Yellow Cab did
not pay its drivers wages or any other form of compensation; Yellow Cab did not require cab
drivers to acquire rides through its dispatch service at all, meaning that it had no limits on a
driver’s refusal rate; Yellow Cab did not impose other restrictions on drivers’ interactions with
their passengers (i.e., relating to tipping or cash payments); and Yellow Cab did not “hire the
drivers,” but rather set minimum requirements for licensees of its logo and name. See id. at *4-
7. Given the particular conditions of Uber’s arrangement with its drivers, as presented by
Search, the Court does not find Ames to dictate the same result, even if this Court were bound to
follow it. In sum, the Court cannot determine as a matter of law that Deresse was an independent
contractor.
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2. Scope of Employment
Even if the Court does determine that an employer-employee relationship may exist
between Deresse and Uber, Defendant contends that it is nevertheless not liable for his alleged
assault on Search, as the stabbing occurred outside the scope of his employment. See Mot. at 9.
If an employee’s conduct “is different in kind from that authorized, far beyond the authorized
time or space limits, or too little actuated by a purpose to serve” his employer, that conduct falls
outside the scope of employment. See District of Columbia v. Coron, 515 A.2d 435, 437 (D.C.
1986). In taking such a position, Uber points to Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27
(D.C. 1979), in which the court determined that an assault committed by a railroad employee was
not within the scope of his employment because it “was in no sense, either wholly or partially in
furtherance of [the employer’s] business.” Id. at 32. Defendant relies also on Boykin v. District
of Columbia, 484 A.2d 560 (D.C. 1984), in which the court held that a sexual assault by an
employee of D.C. public schools fell outside the scope of the assailant’s employment, as it was
not the result of any effort to advance his employer’s aims.
Uber appears to believe that “a violent attack . . . could not conceivably be one of a
limousine driver’s job duties,” and it is therefore always outside the scope of his employment.
See Mot. at 10. But the “scope of employment” inquiry in the District of Columbia is not as
narrow as Defendant would like to imagine. In fact, if “there is evidence that the assault grew
out of a job-related controversy,” an assault may very well fall within the scope of the
perpetrator’s employment. See Hechinger Co. v. Johnson, 761 A.2d 15, 25 (D.C. 2000). In
Johnson, a cashier at a lumber store assaulted a customer, and because testimony indicated that
“the incident was precipitated by a discussion concerning some scraps of wood” that led to an
argument about paying for the wood, the court determined that it would be “reasonable for the
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jury to conclude that the [employee’s] actions were motivated by a desire to require [the
customer] to pay for the wood which he presumed to be the property of his employer” or “to
conclude that the employee acted on behalf of his employer to resolve a job-related dispute.” Id.
Thus, where the employee “acted, at least partially,” to serve his employer’s interests, a physical
altercation with a customer may still fall within the requisite “scope” of employment. See id.
Accord Murphy v. Army Distaff Found., Inc., 458 A.2d 61, 63 (D.C. 1983) (when “there is some
indication that the shooting [by a gardener of a trespasser] was the outgrowth of a job related
encounter,” court could not conclude that, as a matter of law, gardener’s employer was not
vicarious liable) (emphasis added); see also Lyon v. Carey, 533 F.2d 649, 651-52 (D.C. Cir.
1976) (question whether deliveryman’s rape and knifing of customer was within scope of
employment turned on whether rape was direct outgrowth of transaction-related dispute and
should go to jury).
Here, Plaintiff has alleged facts suggesting that the dispute giving rise to Deresse’s attack
grew out of an encounter related to Uber’s business. According to the Complaint, the
disagreement “arose out of the business transaction that brought Mr. Search to Defendant
Deresse’s Uber car, and it was triggered by a dispute over the conduct of Uber’s business
(providing car service).” Am. Compl., ¶ 21. This is sufficient to survive a 12(b)(6) motion;
Plaintiff need not disclose additional details about the content of the dispute at this stage. The
fact that the attack was carried out after Search exited Deresse’s vehicle, moreover, does not
absolve Uber of liability. Plaintiff asserts that his presence in the vehicle was a direct result of
Uber’s business, and that the tension that led to his assault began only after he “boarded the Uber
car.” Id., ¶ 18. Further, he states that Deresse assaulted him immediately after he left Deresse’s
car – not hours or days later – hence not so far in time or space from the business transaction as
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to cut off Uber’s liability. See Coron, 515 A.2d at 437. “Scope of employment is ordinarily a
question for the jury,” Doe v. Sipper, 821 F. Supp. 2d 384, 388 (D.D.C. 2011), and here the
Court cannot conclude that, as a matter of law, Deresse’s alleged stabbing was an act outside
such employment.
D. Count V: Apparent Agency
Even if Deresse and Uber are not bound by an actual employer-employee relationship,
Plaintiff argues in the alternative that Uber represented to customers, including Search, that its
drivers were its agents, and that it screened and managed them accordingly. See Am. Compl., ¶¶
50-53. The District of Columbia recognizes “apparent authority” as a basis for imputing liability
for the tortious acts of independent contractors to those who hired them “when the principal
places the agent in such a position as to mislead third persons into believing that the agent is
clothed with the authority which in fact he does not possess.” Makins v. District of Columbia,
861 A.2d 590, 594 (D.C. 2004). Apparent authority “depends upon the third-party’s perception
of the agent’s authority,” which “may be based upon written or spoken words or any other
conduct of the principal which, reasonably interpreted, causes the third person to believe that the
principal consents to have the act done on her behalf” by the apparent agent. Id. (internal
quotation marks and citations omitted). An inquiry into the existence of such authority operates
something like the hoary legal principle known as the “duck test”: “[I]f it walks like a duck,
swims like a duck, and quacks like a duck, it’s a duck.” Lake v. Neal, 585 F.3d 1059, 1059 (7th
Cir. 2009). The doctrine, at bottom, “prevents [Defendant] from denying any liability for the
torts of its independent contractors while it profits from the image and good will created by the
17
company’s general business reputation.” Wilson v. Good Humor Corp., 757 F.2d 1293, 1302
(D.C. Cir. 1985).
Search alleges that Uber, “[t]hrough several forms of media” such as its mobile app and
its website, represented to customers that it is “your private driver,” “that it subjects its drivers to
rigorous screening procedures” before hiring them, and that it “continues to monitor” those
drivers after they are hired. See Am. Compl., ¶¶ 6-8. Uber responds that it “could not have been
clearer that Mr. Deresse was not its agent, and it was unreasonable for Plaintiff to believe”
otherwise. See Mot. at 13. For this rebuttal, however, Uber relies entirely on its User
Agreement, in which it “included an exculpatory provision whereby Uber clearly, unequivocally
and specifically stated that Mr. Deresse was not [its] agent.” Id. The parties spill considerable
ink over the meaning and effect of the User Agreement and on how it was perceived by Uber
customers. Yet, whatever its exculpatory effect, the User Agreement is material outside the
Complaint, offered to disprove the facts as alleged therein, and the Court thus cannot consider it
in resolving the 12(b)(6) motion at hand.
Uber nonetheless asks the Court to take judicial notice of the User Agreement because it
“is found on Uber’s website,” and “its accuracy cannot be reasonably questioned.” Mot. at 8 n.2
(citing Fed. R. Evid. 201(b)). But the Court is concerned that the document’s accuracy can
reasonably be questioned: For example, Uber has not established that the User Agreement on its
website at the time of the filing of its Motion was identical to the Agreement to which Search
consented when he downloaded the Uber app. Uber furthermore asks the Court to do more than
simply take notice of the fact that the User Agreement exists on Uber’s website; Uber also
requests that the Court interpret and apply its terms to refute Plaintiff’s allegations. This request
is beyond the scope of Rule 201(b). See, e.g., Nat’l Org. for Women, Washington, D.C. Chapter
18
v. Soc. Sec. Admin. of Dep’t of Health & Human Servs., 736 F.2d 727, 738 n.95 (D.C. Cir.
1984) (explaining that a concept “at the heart of Fed. R. Evid. 201” is that “[f]acts pertaining to
the parties and their businesses and activities . . . are intrinsically the kind of facts that ordinarily
ought not to be determined without giving the parties a chance to know and to meet any evidence
that may be unfavorable to them”) (quoting 2 K. Davis, Administrative Law Treatise, § 12:3 at
413 (2d ed. 1979)). Because the Court is not required to take judicial notice of any adjudicative
fact, and because it believes that Uber failed to supply “the necessary information” to establish
the accuracy of any facts outside the Complaint, the Court declines to take notice of them here.
See Fed. R. Evid. 201(c).
Because a district court cannot “look[] outside the complaint to factual matters” without
converting the motion to dismiss into one for summary judgment, Marshall Cnty. Health Care
Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993), the Court declines to consider Uber’s
User Agreement and its evidence purportedly contradicting the allegations in the Complaint.
And because Defendant provides no other basis for dismissing Plaintiff’s apparent-agency theory
of liability, the Court will allow that count to move forward.
E. Count VI: D.C. Consumer Protection Procedures Act
In addition to common-law negligence and vicarious-liability theories, Search also
advances a cause of action under the D.C. Consumer Protection Procedures Act. That Act
prohibits misleading or deceiving a consumer by “represent[ing] that goods or services have a . .
. sponsorship, approval, certification, . . . that they do not have”; “represent[ing] that goods or
services are of [a] particular standard [or] quality . . . if in fact they are of another”; and
“misrepresent[ing] . . . a material fact which has a tendency to mislead.” D.C. Code §§ 28-
3904(a)-(e). Any consumer may file suit “seeking relief from the use of a trade practice in
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violation of” these provisions. Id. § 28-3905(k)(1)(A). Search complains that Uber “repeatedly
represented to the consumer public, including specifically to Plaintiff, that its drivers were
rigorously screened in order to ensure that they would not pose a danger to passengers,” but that
Uber failed to conduct such screenings. See Am. Compl., ¶¶ 56-57.
In its Motion, Uber’s response is three-fold. First, the company believes it “delivered the
service which it promised to Plaintiff” by connecting Search to Deresse via its technology. See
Mot. at 15. Plaintiff retorts that Uber “did not promise consumers nothing more than a warm
body driving a car.” Opp. at 25. Ultimately, though, whether the service Uber provides is
simply “connect[ing] Plaintiff to a driver,” Mot. at 15, or something more is a factual dispute, as
is the question whether Uber represented to customers that its sole service would be this
connection. Uber’s response is unavailing at this stage, where the Court must take Search’s
factual allegations as true.
Second, Uber maintains that Plaintiff never alleges that it did not perform a “background
screening” of Deresse or that doing so “would have disclosed that he was a danger to
passengers.” Id. On the contrary, Plaintiff did allege that “Uber failed to conduct thorough
screenings of its drivers (either up-front background investigations or on a continuing basis),
including specifically of Defendant Deresse.” Am. Compl., ¶ 57. That allegation is sufficient to
state a claim under the CPPA. This statute, unlike Plaintiff’s negligent-hiring claim, does not
require Search to allege that, had Uber performed a background investigation, it would have
unearthed information alerting it to Deresse’s dangerous personality. Under the Act, he need
only allege that Defendant misrepresented a material fact that has a tendency to mislead, Plaintiff
relied on that misrepresentation, and he suffered damages as a result. Search has done so here.
See Beck v. Test Masters Educ. Servs., Inc., 994 F. Supp. 2d 90, 96 (D.D.C. 2013) (“[T]he thrust
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of the D.C. CPPA is much more liberal than common law fraud claims – no proof of intent is
required by the alleging party. Plaintiff must only establish that defendant made a
misrepresentation – affirmative or implied – to prevail.”).
Finally, Uber relies once again on its User Agreement, this time for the proposition that it
did not represent to passengers that its “service or application will meet [their] requirements or
expectations” and that it made “no representation, warranty, or guaranty as to the reliability,
safety, . . . quality, [or] suitability . . . of any services, products or goods obtained by third parties
through the use of the service or application.” Mot. at 16 (quoting User Agreement). In light of
this disclaimer, Uber argues, no reasonable person would have relied on “any statements in
advertisements or other promotional material which Plaintiff deems made contrary
representations[,] as they were commercial puffery.” Reply at 15.
But the Court must disregard this last argument, as it relies on material outside the
Complaint – again, Uber’s User Agreement – to refute the facts alleged therein. The Court must
instead assume that, as Search alleged, Uber misrepresented that its drivers were safe and that a
reasonable consumer would rely on those misrepresentations. Uber’s Motion as to the CPPA
claim will thus be denied. 1
F. Count VIII: Gross Negligence and Punitive Damages
The final count in Plaintiff’s Amended Complaint asserts that “Uber’s actions and/or
omissions were performed with evil motive, recklessness, actual malice, with intent to injure,
1
The Court notes that, in its Reply, Defendant argues for the first time that Plaintiff seeks to recover for personal
injuries in Count VI, and that “the CPPA does not allow recovery for personal injuries of a tortious nature.” Reply
at 16 (quoting McGaughey v. District of Columbia, 740 F. Supp. 2d 23, 26 (D.D.C. 2010)). But Search does not
seek relief for personal injuries under the CPPA; rather, in Count VI he seeks relief only under the Act’s private-
enforcement mechanism, whereby individuals may be awarded enumerated treble damages, attorney fees, punitive
damages, limited restitution, or injunctive relief, if a business is found to have engaged in a trade practice that
violates the Act. See D.C. Code § 28-3905(k). Plaintiff does not appear to seek additional relief for personal
injuries under the CPPA.
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and/or in willful disregard for the rights of Plaintiff,” such that these acts “constitute gross
negligence.” Am. Compl., ¶ 67. As a result of Uber’s “willful and wanton disregard of
Plaintiff’s safety,” Search also contends that “an award of punitive damages . . . to punish
Defendant” would be appropriate. Id., ¶ 69.
In the District of Columbia, “courts have traditionally analyzed whether a defendant
acted with gross negligence only in limited circumstances where gross negligence is a specific
element of a claim or defense, or for equitable reasons.” Hernandez v. District of Columbia, 845
F. Supp. 2d 112, 116 (D.D.C. 2012) (internal citations omitted). Generally, where plaintiff “has
already alleged a negligence claim . . . the Court defers to the general rule in the District of
Columbia against recognizing degrees of negligence and will dismiss as duplicative plaintiff’s
claim for gross negligence . . . as a separate basis of liability.” Id. That is the case here. The
Complaint includes multiple counts of negligence against Uber (i.e., Counts I, IV, V), and Search
does not identify any relevant statutory claim or defense requiring a showing of gross
negligence. See, e.g., District of Columbia v. Walker, 689 A.2d 40, 44-45 (D.C. 1997)
(interpreting D.C. statute with separate definitions for gross and ordinary negligence). Plaintiff
thus cannot look to D.C. law for a separate cause of action for gross negligence.
Nor does D.C. law furnish Plaintiff with a stand-alone cause of action for “punitive
damages.” Rather, such damages are available only as a remedy – and, even then, only in rare
circumstances. See Gharib v. Wolf, 518 F. Supp. 2d 50, 56 (D.D.C. 2007) (dismissing “punitive
damages” count because “punitive damages is a remedy and not a freestanding cause of action”);
see also International Kitchen Exhaust Cleaning Ass’n v. Power Washers of N. Am., 81 F. Supp.
2d 70, 74 (D.D.C. 2000) (dismissing “punitive damages” count where it was “mispleaded . . . as
a free-standing cause of action,” but “declin[ing] to rule on whether [that plaintiff] may recover
22
punitive damages as a remedy” until “a later time in the proceedings”). Search may not,
therefore, allege a separate cause of action for punitive damages, but he may be able to recover
such damages down the road. The Court need not rule on their availability at this time.
Because neither “gross negligence” nor “punitive damages” is a stand-alone cause of
action in the District of Columbia, the Court will grant Defendant’s Motion as to Count VIII.
IV. Conclusion
For the foregoing reasons, the Court will grant Uber’s Motion to Dismiss as to Counts I
and VIII – though Plaintiff may be able to seek punitive damages at the remedial stage of the
proceedings – and deny it as to Counts IV, V and VI. The Court will issue a contemporaneous
Order to that effect.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: September 10, 2015
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