Dancer v. Seattle Hempfest

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	1
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
DEBBIE DANCER,
Plaintiff,
vs.
SEATTLE HEMPFEST, a.k.a. SEATTLE
EVENTS
Defendant.
No. 3:20-cv-00288-SLG-DMS
REPORT AND
RECOMMENDATION1 TO DENY
PLAINTIFF’S MOTION FOR
SUMMARY JUDGEMENT AND
GRANT SUMMARY JUDGEMENT
FOR THE DEFENDANT
I. 	INTRODUCTION
Plaintiff Debbie Dancer, appearing pro se, asks the Court to award her a judgement of
$500,000 from defendant Seattle Hempfest for harm caused by alleged defamatory statements
made on the personal Facebook pages of two Alaska Hempfest employees (Dkt. 13). The
defendant responded in opposition to the plaintiff’s motion for judgement and filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Seattle Hempfest is
not liable for the alleged actions of the employees of Alaska Hempfest. The plaintiff filed a reply
to the defendant’s motion to dismiss, including exhibits A-Y (Dkt. 15).
1 This report and recommendation is being issued as a final report and recommendation. Pursuant to 28 U.S.C. § 636
(b)(1)(C), any objections will be considered by the District Court Judge who will accept, reject, or modify the
recommendation, or resubmit the matter to the Magistrate Judge for additional consideration and recommendations.
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 1 of 10

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	2
The motions are now ripe for consideration. For the following reasons, the Court
recommends that the District Court DENY the plaintiff’s motion for summary judgement and
GRANT summary judgement in favor of the defendant.
II. STATEMENT OF FACTS
The plaintiff alleges that the defendant provided an “affiliated license” to Alaska
Hempfest (Dkt. 1 at 7). The defendant states that “[s]everal groups have entered into agreements
with [the defendant] to license the use of the word ‘HEMPFEST’ and hold numerous gatherings
advocating for hemp and legal reform,” further asserting that the defendant “has no relationship
with Alaska Hempfest other than that of licensee licensor” for use of the trademarked name
HEMPFEST (Dkt. 14 at 2).
This suit involves alleged defamatory statements made by Nordica Friedrich and Niki
Raapana, neither of whom were named as defendants by the plaintiff. The plaintiff alleges that at
the time of the events in the complaint, Friedrich held the title of Director/Music Director at
Alaska Hempfest and Raapana held the title of Director at Alaska Hempfest (Dkt. 1 at 7). At the
time of the alleged conduct, Friedrich and Raapana each had a personal Facebook page (Dkts.
15-3, 15-5). Under employment information on their Facebook pages, Friedrich and Raapana
stated their respective titles at Alaska Hempfest (Dkts. 15-4; 15-6). While their profile pictures
during the time of the alleged conduct displayed images of themselves, their banner photo at the
top of the page displayed an advertisement for an Alaska Hempfest event (Dkts. 15-3; 15-5).
Included in that advertisement, in small lettering, are the words: “LICENSED AFFILIATE OF
SEATTLE HEMPFEST® SINCE 2015” among other text and images (Dkt. 15-3; 15-5). The
plaintiff also asserts that “Vivian McPeak, President, Seattle Events, Producer of Seattle
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 2 of 10

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	3
Hempfest and Cyril Bouanna, Board of Directors of Seattle Hempfest are active on [Friedrich
and Raapana’s] Facebook pages making comments on their posts” (Dkt. 15 at 4). The plaintiff
does not allege that the defendant or any of its directors or employees commented on the alleged
defamatory posts.
The plaintiff alleges that Friedrich and Raapana made defamatory statements about the
plaintiff on their personal Facebook pages (Dkt. 1 at 7). Two of those alleged posts were: “Um
also friendly reminder that in 2014 Debbie Dancer sexually abused my kids & tried to kill me –
for anyone stoked on Honey Jam” and “Unfriended like 30 ppl promoting Honey Jam/Debbie
Dancer. Fuck off with your ‘wellness’ if you support a THIEF & a CHILD ABUSER” (Dkt. 1 at
7-8). The plaintiff alleges that the Facebook posts “led to a loss in current and future income,
current and future customers/clients, all future business for [plaintiff’s company] Honey Bill
Hill, and any future business/businesses the Plaintiff would have the opportunity to establish”
(Dkt. 1 at 7).
The plaintiff alleges that she suffered $500,000 in damages due to the defamatory
statements; $250,00 of that due to “the ruined life reputation,” “fear for plaintiff’s life,” and
“shame, mortification” and $250,000 due to “loss of current and future business opportunities”
(Dkt. 1 at 10).
III. APPLICABLE LAW
A. Dismissal Pursuant to Rule 12(b)(6) and Summary Judgement Pursuant to Rule 56
A defendant may seek dismissal by motion on the basis of the plaintiff’s “failure to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12. “[F]or a complaint to survive a
motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 3 of 10

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	4
content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S.
Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). “In all cases, evaluating a complaint’s
plausibility is a ‘context-specific’ endeavor that requires courts to ‘draw on ... judicial experience
and common sense.’” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (quoting Eclectic
Props. E., LLC v. Marcus Millichap co., 751 F.3d 990, 996 (9th Cir. 2014).
“If the court considers the additional materials” beyond the allegations in the complaint,
“it must convert the motion to dismiss to a motion for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure, providing the parties a reasonable opportunity to be heard. . . .
‘A Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one
for summary judgment until the district court acts to convert the motion by indicating, preferably
by an explicit ruling, that it will not exclude those materials from its consideration.’” Snead v.
Wright, No. 3:19-CV-00209 JWS, 2020 WL 7234158, at *2 (D. Alaska Oct. 6, 2020) (quoting
Swedberg v. Marotzke, 339 F.3d 1139, 1146 (9th Cir. 2003).
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
B. Agency Liability for Tortious Acts
“The Alaska Supreme Court has adopted the Restatement (Second) of Agency rule to
determine vicarious liability for negligent and intentional torts.” Williams v. Alyeska Pipeline
Serv. Co., 650 P.2d 343, 349 (Alaska 1982). “Agency is the fiduciary relation which results from
the manifestation of consent by one person to another that the other shall act on his behalf and
subject to his control, and consent by the other so to act.” Restatement (Second) of Agency §
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 4 of 10

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	5
1(1) (1958). “[T]he scope of an agency relationship must have boundaries as a principal cannot
be held liable for all actions an agent takes while going about his daily life. To this point, agency
law conditions the scope of the agency relationship to transactions where the agent is acting on
the principal’s behalf.” Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 100–01 (Iowa 2011)
(citing Restatement (Third) of Agency § 1.01).
“[I]n order for an agency relationship to exist, an agent must have a power to alter the
legal relations between the principal and third parties. The principal, in turn, must have the right
to control the conduct of the agent with respect to matters entrusted to him.” U.S. ex rel. N. Star
Terminal & Stevedore Co. v. Nugget Const., Inc., 445 F. Supp. 2d 1063, 1070–71 (D. Alaska
2006).
Even if actual agency does not exist, a principal may still be liable for the conduct
performed by parties with apparent authority to act on the principal’s behalf; “apparent
authority to do an act is created as to third persons by 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 his behalf by the person
purporting to act for him.” Sprague v. Tesoro Alaska Petroleum Co. Petro Prod., No.
3AN-87-1988 CIVIL, 1994 WL 792539, at *5 (Alaska Super. Ct. June 30, 1994).
[I]t is the principal’s conduct that gives rise to his liability and not the conduct of
the alleged agent; “one dealing with an alleged agent must prove that the principal
was responsible for the appearance of authority, by doing something or permitting
the alleged agent to do something that led others, including the plaintiff, to
believe that the agent had the authority he purported to have.”
Id. (emphasis in original).
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 5 of 10

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	6
“[A] finding of apparent agency requires proof of actual reliance on the principal
conduct” that “led others, including the plaintiff, to believe that the agent had the authority he
purported to have.” Id. at *6 (citing Jackson v. Power, 734 P.2d 1376, 1381 (Alaska 1987)).
IV. 	DISCUSSION
In their briefings to the Court, the parties have demonstrated that there are no genuine
disputes as to any material facts and that judgment can be issued as a matter of law. See Fed. R.
Civ. P. 56. The plaintiff fails to allege facts sufficient to establish actual or apparent agency
between the defendant and Friedrich and Raapana regarding the posts on their respective
personal Facebook pages. Because the Court looks beyond the complaint to consider the
arguments, allegations, and exhibits included in the plaintiff’s motion for judgement (Dkt. 13),
the defendant’s response and motion to dismiss (Dkt. 14), and plaintiff’s reply to that response
(Dkt. 15), the Court’s report and recommendation is properly considered a recommendation on a
summary judgement ruling, rather than dismissal pursuant to Fed. R. Civ. P. 12(b)(6).
A. The Plaintiff Does Not Allege Facts Sufficient to Establish Actual Agency
Regarding Friedrich and Raapana’s Personal Facebook Pages as a Result of the
Licensing Agreement.
The plaintiff does not allege that the terms of the licensing agreement between Seattle
Hempfest and Alaska Hempfest conferred to Alaska Hempfest’s directors or employees the
power to make social media posts on its behalf. Friedrich and Raapana, who are not parties in
this case, lacked the “power to alter the legal relations between [Seattle Hempfest] and third
parties” when publishing posts to their personal Facebook pages and the defendant was not
conferred “the right to control the conduct” of Friedrich and Raapana with respect to their
Facebook pages; therefore, no actual agency existed sufficient to attach vicarious liability on the
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 6 of 10

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	7
defendant. See U.S. ex rel. N. Star Terminal, 445 F.Supp. 2d at 1070-71. In Emeson v. Dep’t of
Corr., an appellate court upheld the lower court’s grant of summary judgement in an employee-
employer agency context where
[the plaintiff] d[id] not allege that [an employee of the defendant] was fulfilling
any job functions in posting the comment on Facebook, and the record d[id] not
support any such inference, [instead] the record shows [the employee] posted the
comment from her personal account at 8:04 pm on May 13 on her personal
Facebook page. Therefore, we hold that the trial court properly granted summary
judgment dismissal of [the plaintiff’s] invasion of privacy claim because [the
employee’s] Facebook post was made outside the scope of her employment with
DOC.
194 Wash. App. 617, 641, 376 P.3d 430, 443 (2016). Similarly, here the plaintiff does not allege
that Friedrich nor Raapana’s personal posts to their Facebook pages were connected to any
authority conferred from the defendant to Alaska Hempfest as a result of their licensing
agreement.
Even if the licensing agreement includes some manifestation that Alaska Hempfest act on
the defendant’s behalf in promoting and protecting the value of the trademarked name
“HEMPFEST,” no facts alleged by the plaintiff establish that the conduct of Alaska Hempfest
employees or directors on their personal Facebook pages is within the scope of that agency. As
mentioned supra, “the scope of an agency relationship must have boundaries as a principal
cannot be held liable for all actions an agent takes while going about his daily life.” Soults
Farms, In., 797 N.W.2d at 100-01. The plaintiff therefore has failed to allege facts sufficient to
establish actual agency so as to hold the defendant vicariously liable for the alleged defamatory
posts.
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 7 of 10

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	8
B. Any Apparent Agency Between the Defendant and Alaska Hempfest Did Not
Extend to Statements Posted on Raapana and Friedrich’s Personal Facebook
Pages.
The plaintiff next relies on a theory of apparent agency to impose vicarious liability on
the defendant for the actions of Friedrich and Raapana, asserting that the defendant’s conduct
contributed to the impression that Friedrich and Raapana, who are not parties to this case, were
speaking on behalf of the defendant when they posted on their personal Facebook pages, even if
they did not actually have the authority to do so.
With apparent agency, the relevant inquiry is whether the defendant’s conduct,
“reasonably interpreted,” could cause a “third person to believe that [the defendant] consents to
have the act done on his behalf.” Sprague, 1994 WL at *5. The plaintiff alleges that the
following conduct created such belief: (1) that the defendant did not object to Friedrich and
Raapana’s use of an Advertisement for Alaska Hempfest as a banner photo on their personal
Facebook pages which includes the text: “LICENSED AFFILIATE OF SEATTLE
HEMPFEST® SINCE 2015” (Dkts. 15-3; 15-6); (2) that McPeak, president of Seattle Hempfest,
and Bouanna, a member of the board of directors at Seattle Hempfest, corresponded with
Friedrich and Raapana on Facebook; and (3) that the defendant was “actively involved with
Alaska Hempfest,” stating that Bouanna “came to Alaska to assist Alaska Hempfest during the
2016, 2017, and 2018 Alaska Hempfest events” and the defendant “also advertised Alaska
Hempfest on Seattle Hempfest[’s] webpage” (Dkt. 15 at 3).
First, the Court is not persuaded that the defendant’s lack of objection to a person
displaying an advertisement for another Hempfest event on their personal Facebook page could
be reasonably interpreted as conferring to that person the power to speak on behalf of Seattle
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 8 of 10

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	9
Hempfest. The mere presence of the words “LICENSED AFFILIATE OF SEATTLE
HEMPFEST” on the advertisement does not bolster such claim. The Facebook pages displayed
the individuals’ names and the profile pictures on the pages were of those individuals; it was not
a Facebook page for Alaska Hempfest or Seattle Hempfest. Next, the plaintiff does not allege
that McPeak nor Bouanna posted any comments on the alleged defamatory statements or in any
way endorsed them as to justify a third party’s belief that they were made on behalf of the
defendant; instead the correspondence between Bouanna, Friedrich, and Raapana was related to
the promotion of Alaska Hempfest events (Dkts. 15-12; 15-13; 15-14). Any actions by the
defendant and its employees to promote Alaska Hempfest events is not conduct sufficient to
confer authority to two Alaska Hempfest directors to speak on behalf of the defendant on
unrelated matters on their personal Facebook pages.
Equally fatal to the plaintiff’s complaint is the lack of factual allegations establishing that
the plaintiff and any third parties actually believed that Friedrich and Raapana were speaking on
behalf of the defendant when they made the alleged defamatory posts about their personal
clashes with the plaintiff. See Sprague, 1994 WL 792539 at *6.
The plaintiff does not allege facts sufficient to demonstrate that Friedrich or Raapana
were acting in the scope of any actual or apparent authority as agents for the defendant when
they made the alleged defamatory posts. Therefore, the defendant cannot be held vicariously
liable for those statements.
V. CONCLUSION
For the foregoing reasons, the Court recommends that the District Court DENY the
plaintiff’s motion for summary judgement and GRANT summary judgement for the defendant.
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 9 of 10

Dancer v. Hempfest
3:20-cv-00288-SLG-DMS
R&R re Mtn for Judgement & Mtn to Dismiss 	10
In granting summary judgement for the defendant, the Court recommends that the District Court
convert the defendant’s motion to dismiss into a motion for summary judgement, as this Court’s
report and recommendation considers briefings and exhibits beyond those included in the
complaint.
The parties have until August 9, 2021 to file any objections to this report and
recommendation, and until August 16, 2021 to file any reply to those objections.
DATED this 26th day of July, 2021 at Anchorage, Alaska.
/s/Deborah M. Smith
CHIEF U.S. MAGISTRATE JUDGE
Case 3:20-cv-00288-SLG-DMS Document 16 Filed 07/26/21 Page 10 of 10