Jensen v. Xlear, Inc.

Decision Date11 May 2020
Docket NumberCase No. 2:19-cv-413
PartiesBAYLEE JENSEN and JESSICA McCARTNEY, Plaintiffs, v. XLEAR, INC.; WILLIAM ROBBS; and DOES 1 through 50, inclusive, Defendants. WILLIAM ROBBS, Counter Claimant, v. BAYLEE JENSEN and JESSICA McCARTNEY, Counter Defendants.
CourtU.S. District Court — District of Utah

Judge Clark Waddoups

Before the court are motions to dismiss filed by defendant Xlear, Inc. ("Xlear") and counter-claim defendants Baylee Jensen and Jessica McCartney (collectively "Plaintiffs"). Xlear moves, by a Partial Motion to Dismiss, to dismiss Plaintiffs' state law claims of civil assault, civil battery, and intentional infliction of emotional distress (ECF No. 11), and Plaintiffs move to dismiss counterclaims filed by defendant William Robbs ("Mr. Robbs") for defamation and tortious interference with a contract (ECF No. 28). For the reasons stated herein, Xlear's partial motion to dismiss is GRANTED IN PART, and Plaintiffs' motion to dismiss is DENIED.


Plaintiffs Baylee Jensen ("Ms. Jensen") and Jessica McCartney ("Ms. McCartney" and together with Ms. Jensen, "Plaintiffs") each began working for defendant Xlear, Inc. ("Xlear") on November 17, 2017. Although Ms. Jensen was hired as the E-Commerce sales manager and Ms. McCartney was hired as an executive assistant and event and trade show coordinator, they were both immediately supervised by defendant William Robbs ("Mr. Robbs"). At all relevant times, Mr. Robbs was an owner and vice president of Xlear. Plaintiffs allege that throughout the courses of their employments, Mr. Robbs made inappropriate and/or demeaning comments and innuendos to them and inappropriately touched them in violation of their rights and Xlear's policies. Ms. McCartney, who was pregnant for at least a portion of her employment, also alleges that Mr. Robbs made demeaning comments regarding her pregnancy and that he and other officers discriminated against her because she was pregnant.

Plaintiffs filed their Complaint in this action on June 17, 2019. (ECF No. 2). Against Xlear, they bring claims under Title VII as well as claims of civil assault, civil battery, and intentional infliction of emotional distress ("IIED") (collectively the "State Law Claims"). Against Mr. Robbs, Plaintiffs assert claims of civil assault, civil battery, negligence, negligent infliction of emotional distress, and IIED.

Mr. Robbs resigned from Xlear in June 2018. In September 2018, he accepted a job as a director for Weider Global Nutrition ("Weider"). While he anticipated working in Weider's office in Hamburg, Germany, at all relevant times, he was actually stationed in Phoenix, Arizona. On June 19, 2019, Plaintiffs' counsel, Randy Andrus ("Mr. Andrus") sent Mr. Robbs, at his personal email address, a request for waiver of service of process for this action (the "June 19 Email"). That email stated that the request was designed "[t]o reduce costs to my Clients'end, and inconvenience, disruption or embarrassment on your end" and gave Mr. Robbs five days to respond. On June 25, 2019, Mr. Andrus sent a second email to Mr. Robbs to which the Summons and Complaint filed in this matter were attached (the "June 25 Email"). This email was also sent to two Weider corporate email addresses: and Mr. Andrus also sent a hard copy of the Summons and Complaint addressed to Mr. Robbs at Weider's Hamburg office (the "Mailing"). This package was ultimately forwarded to Mr. Robbs in Phoenix, but someone at the Hamburg office had already opened it. Mr. Robbs was asked to resign from his position at Weider in July of 2019, allegedly because of the allegations contained in the Complaint. Based on the June 25 Email and the Mailing, he now asserts Counterclaims against Plaintiffs for defamation and tortious interference with a contract.


Before the court are Xlear's Partial Motion to Dismiss, which seeks to dismiss Plaintiff's State Law Claims against it, and Plaintiffs' Motion to Dismiss Mr. Robbs's counterclaims for defamation and tortious interference with a contract. Both motions have been fully briefed, and the court heard argument on the same on March 5, 2020.

I. Defendant Xlear's Motion to Dismiss the State Law Claims is granted in part.

Xlear argues that the State Law Claims should all be dismissed because Plaintiffs have failed to plead facts sufficient to support a claim that it is liable for Mr. Robbs's conduct and because the claims are preempted by the Utah Antidiscrimination Act ("UADA") and/or the Utah Workers Compensation Act ("UWCA"). Xlear also moves to dismiss Plaintiffs' IIED claim on the basis that Plaintiffs have not shown that Xlear engaged in any extreme or outrageous conduct.

A. Plaintiffs' claims for assault and battery fail because Plaintiffs have not established that Xlear is directly or vicariously liable for Mr. Robbs's tortious actions.

Plaintiffs' claims of civil assault and civil battery arise out of allegations that Mr. Robbs brushed up against and physically touched Ms. Jensen, touched Ms. Jensen's "body and buttocks using a Thera gun," and struck and slapped Ms. McCartney on the buttocks. (See ECF No. 2 at ¶¶ 39, 41, 48, 70). Xlear moves to dismiss these claims, arguing that the underlying bad actions were performed exclusively by Mr. Robbs and that Plaintiffs have failed to establish that it is legally responsible for Mr. Robbs's conduct. Plaintiff argues that Xlear "jointly, severally, and individually . . . perpetrated and engaged in" the alleged assaults and batteries and that it, itself, is the "bad actor in this case." (See ECF No. 2 at ¶¶ 98, 107; ECF No. 22 at 9).

Under Utah law, "[c]orporations can only act through agents, be they officers or employees." Lane v. Provo Rehab. & Nursing, 2018 UT App 10, ¶ 27, 414 P.3d 991, 997, cert. denied, 421 P.3d 441 (Utah 2018) (citations and quotations omitted); see also Restatement (Third) of Agency § 7.03 ("A principal that is not an individual can take action only through its agents, who typically are individuals."). Although a corporation can only act through its agents, it is not automatically liable for every action that its agents take, especially tortious ones. See Restatement (Third) Of Agency § 7.03 (2006) ("A principal that is not an individual can take action only through its agents, who typically are individuals. . . . An organization's tortious conduct consists of conduct by agents of the organization that is attributable to it."). Rather, for such liability to exist, the nature of the relationship between the corporation and agent must be sufficient for either direct or vicarious liability to exist. See Mallory v. Brigham Young Univ., 2012 UT App 242, ¶ 29, 285 P.3d 1230, 1238, rev'd on other grounds by, 2014 UT 27, 332 P.3d 922 (noting that "a principal can be sued for direct or vicarious liability as a result of the actions of its agent" (citingRestatement (Third) Of Agency § 7.03)); see also Allen v. Prudential Prop. & Cas. Ins. Co., 839 P.2d 798, 805-06, n. 16 (Utah 1992).

Direct liability arises "'from the principal's relationship with [the] agent whose conduct harms a third party,'" "'from the agent's failure to perform a duty owed by the principal to the third party,'" or "from the principal's own negligence in selecting or supervising the agent." Mallory, 2012 UT App 242, ¶ 29, 285 P.3d at 1238 (quoting Restatement (Third) Of Agency § 7.03). A principal's relationship with its agent gives rise to direct liability when the agent "acts with actual authority in committing a tort, that is, when the agent reasonably believes, based on a manifestation of the principal, that the principal wishes the agent so to act." See Restatement (Third) Of Agency § 7.03; see also Parker v. Carilion Clinic, 296 Va. 319, 343, 819 S.E.2d 809, 823 (2018) ("A corporate defendant may be liable as a primary tortfeasor (independent of respondeat superior liability) if it authorized, directed, ratified, or performed the tortious conduct through those who, under the governing management structure, had the discretionary authority to act on behalf of the corporation.").

Vicarious liability can arise when an agent "'commits a tort while acting within the scope of employment.'" Id. (quoting Restatement (Third) Of Agency § 7.03); see also Wardley Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009, 1015 ("Under principles of vicarious liability, a principal is held responsible for the tortious acts of an agent acting within the scope of the agent's authority." (citations omitted)). Under Utah law, the doctrine of respondeat superior is the primary means used to determine whether vicarious liability exists. See Newman v. White Water Whirlpool, 2008 UT 79, ¶ 8, 197 P.3d 654, 657 ("Under the doctrine of respondeat superior, an employer may be held vicariously liable for the acts of its employee if the employee is in the course and scope of his employment at the time of the act giving rise to the injury." (citingChristensen v. Swenson, 874 P.2d 125, 127 (Utah 1994))); see also M. J. v. Wisan, 2016 UT 13, ¶ 50, 371 P.3d 21, 30 ("Respondeat superior is a doctrine of the common law of agency. The basic question presented under this doctrine is whether to treat the torts of an agent as the acts of the principal. The arguments in favor of extending such liability include fairness to injured parties and deterrence of tortious activity.").

In its Partial Motion to Dismiss, Xlear relies on the doctrine of respondeat superior to argue that it is not vicariously liable for Mr. Robbs's alleged assaults and batteries. Plaintiffs respond by asserting that Xlear is directly liable for those actions because the company itself is the "bad actor in this case." (See ECF No. 22 at 9).

1. Plaintiffs have failed to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT