Case 3:16-cv-00247-DJH-HBB Document 1-1 Filed 04/29/16 Page 1 of 22 PageID #: 5

c~sai.C I 0 150 4

KASIDYA NWANGUMA

and

MOLLY SHAH

and

HENRY BROUSSEAU

vs.

DONALD J. TRUMP

SERVE:

Donald J. Trump

c/o The Trump Organization

725 Fifth Avenue

New York, New York 10022

DONALD J. TRUMP FOR PRESIDENT, INC.

SERVE:

CT Corporation System

4701 Cox Road, Suite 285

Glen Allen, Virginia 23060

MATTHEW JOHN HEIMBACH

a/k/a MATTHEW WARREN HEIMBACH

SERVE:

Matthew Heimbach

6045 Budmar Avenue

Cincinnati, Ohio 45224-2409

ALVIN BAMBERGER

SERVE:

Alvin R. Bamberger

4491 Fork Road

Cincinnati, Ohio 45247

and

UNKNOWN DEFENDANT

JEFFERSON CIRCUIT COURT DIVISION._ __
JEFFER$0~-~ C~?~1 .1IT COURT DIVISiON THRtE (3) PLAINTIFFS
DEFENDANTS

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. \
VERIFIED COMPLAINT Plaintiffs, Kashiya Nwanguma, Molly Shah, and Henry Brousseau, for their Complaint against the Defendants, Matthew John Heimbach, Alvin Bamberger, Donald J. Trump for President, Inc., and Donald J. Trump, state the following:
INTRODUCTION "Peace is not absence ofconflict, it is the ability to handle conflict by peaceful means."
--Ronald Reagan Protesters froD?- every side of the political spectrum have been a regular feature in American politics, and at American political rallies, since time immemorial. They regularly appear at public functions attended by the President of the United States, and in this campaign season, every candidate has seen his share of protesters. But one -Donald J. Trump - has decided to break with American tradition and the rule of law by inciting his supporters to physically attack protesters at his rallies and campaign appearances. Worse still, these attacks often carry with them the blatant stamp of racism, religious intolerance, misogyny, or any combination of the three. This is an action for incitement pursuant to Kentucky statutory law, and an action for common law assault, battery, negligence, gross negligence, and recklessness resulting from incidents facilitated, incited, encouraged, endorsed, and subsequently ratified by Defendant Trump at a campaign rally in Louisville, Kentucky, on March 1, 2016.
JURISDICTION AND VENUE 1. Jurisdiction is proper under Ky. Const. §112 because the causes of action set forth below arise under Kentucky statutes and common law, the injuries occurred in Kentucky, the total damages claimed exceed the jurisdictio~al threshold of the Circuit Court, and the Plaintiffs all reside in Kentucky.
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2. Venue is proper because the mJunes occurred in Jefferson County and the Plaintiffs reside in Jefferson County.
PARTIES I. MATTHEW HEIMBACH
3. Defendant Matthew John Heimbach, a/k/a Matthew Warren Heimbach, 1s a supporter of Defendant Donald J. Trump.
4. Heimbach has been described by the Southern Poverty Law Center as "the fac·e of a new generation of white nationalists."
5. Heimbach is affiliated with the Traditionalist Worker Party, a recognized hate group and self-proclaimed political party which is ideologically opposed to, among other things, what it calls "miscegenation," i.e., different ethnicities living together in the same community and intermarrying. Heimbach himself has been quoted as saying, "It's separation or mongrelization." 1
6. Heimbach has even been banned outright from entering the United Kingdom, on the grounds that his presence may "foster hatred which might lead to inter-community violence in the UK."2
7. Heimbach has been quoted as saying of Trump: "This is the first time since Buchanan in the '90s and George Wallace in '68 where you have a guy outside the mainstream speaking to white interests."
8. Heimbach and the Traditionalist Worker Party have actively been engaged in recruiting supporters of Donald Trump. In fact, Heimbach has even stated, "We have the potential to be able to work with so many of these millions of families to be able to then move
1 bttps://www.splcenter.org/fighting-bate/extremist-files/iodividual/mattbew-heimbacb 2 bttps://www.splcenter.orglbatewatch/2015/11/04/white-nationalist-matthew-heimbacb-banned-united-k:ingdom
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,.
them in our direction. Donald Trump is a gateway drug...we can then move them from civic nationalism and populism to nationalism for us-and these people are ready for our message."
9. Heimbach is a Caucasian male and is approximately 25 years of age. 10. Heimbach is a resident of Ohio. IT. ALVINBAMBERGER 11. Defendant Alvin Bamberger is a supporter ofDonald J. Trump. 12. Bamberger is a Caucasian male and is approximately 75 years of age. 13. Bamberger is a resident of Ohio. ill. DONALD J. TRUMP 14. Defendant Donald J. Trump was the former host of a popular reality television show from 2005-2015, a former part-owner of the Miss Universe pageant, an occasional featured guest of WWE's Wrestlemania, and is the current front-runner for the Republican nomination in the race for President of the United States of America. Trump has recently intimated that he may be planning to run for President of the United States on an independent ticket if be is not the Republican nominee. 15. Trump is a resident ofNew York. IV. DONALD J. TRUMP FOR PRESIDENT, INC. 16. Defendant Donald J. Trump for President, Inc. (hereinafter, the "Trump Campaign"), is a corporation existing under the laws of Virginia. 17. The Trump Campaign contracted with the Kentucky International Convention Center ("K.ICC"), which is a state agency owned and operated by the Kentucky State Fair Board, to conduct business at a public building in Kentucky, i.e., the campaign rally discussed below.
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V. UNKNOWN DEFENDANT 18. In addition to the above-named Defendants, there is an additional Defendant
believed to be a Caucasian woman, who is responsible for punching Plaintiff Brousseau, as set forth in further detail below.
19. Upon information and belief, this unidentified woman is affiliated with Defendant Heimbach and the Traditionalist Worker Party.
20. Upon information and belief, this unidentified woman is a supporter of Donald J. Trump. VI. KASIDYANWANGUMA
21. At all times relevant to this Complaint, Plaintiff Kashiya Nwanguma was a 21year-old college student majoring in Public Health.
22. Nwanguma is an African-American who was born and raised in the United States. 23. Nwanguma resides in Jefferson County, Kentucky. VII. MOLLY SHAH 24. At all times relevant to this Complaint, Plaintiff Molly Shah was a 36-year-old Caucasian mother and activist. 25. Shah is a former public-interest attorney and special-education teacher for the Jefferson County Public Sc4ools. 26. Sh~ resides in Jefferson County, Kentucky. Vlll. HENRY BROUSSEAU 27. At all times relevant to the events described in this Complaint, Plaintiff Henry Brousseau was a 17-year-old Caucasian high school student. 28. Brousseau resides in Jefferson County, Kentucky.
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FACTUAL BACKGROUND

I. THERALLY

29. On March 1, 2016, pursuant to an agreement between the Conunonwealth of

Kentucky and Defendant Donald J. Trump for President, Inc., a rally in support of Defendant

Trump occurred in Louisville, Kentucky, at KICC (hereinafter "the Rally").

30. At the Rally, as discussed in further detail below, individuals who attempted to

peacefully protest Trump were forcibly removed by Trump's supporters, pursuant to Trump's

directives.

31. Tickets and/or entry to the event were not denied to people simply because they

had political views which differed from Trump and/or his supporters.

32. Instead of allowing his own security, the Secret Service, or KICC security to

remove protesters, Trump stopped his half-hour speech five different times to point out protesters

and, in most cases, to tell his crowd of supporters to "get 'em out of here."

33. Plaintiffs were some of the individuals Trump directed the crowd to "get out of

here." 34.

On or around the time the injuries occurred to the Plaintiffs, as described below,

Trump also stated: "Don't hurt 'em. If I say 'go get em,' I get in trouble with the press, the most

dishonest human beings in the world."

35. Trump went on to state: "In the old days, which isn't so long ago, when we were

less politically correct, that kinda stuffwouldn't have happened. Today we have to be so nice, so

nice. We always have to be so nice." Then Trump went into a discussion about waterboarding,

and how it is "absolutely fine."

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II. KASIDYA NWANGUMA 36. At the time of the rally, Plaintiff Kashiya Nwanguma was a 21-year-old student
attending classes at the University of Louisville. 37. Nwanguma attended the Rally with the intention of peacefully protesting Trump. 38. Nwanguma traveled to the Rally alone. She was not with a group at the time of
her assault, did not enter with a group, and took no part in the group protests. 39. Nwanguma is not affiliated with the Black Lives Matter movement.
a 40. Supporters of Defendant Trump called Nwanguma "nigger" and a "cunt" during
the Rally. 41. Nwanguma heard a number of other racial and ethnic slurs used by Trump's
supporters during the Rally. 42. Nwanguma did not intentionally make physical contact with any attendee of the
Rally. 43. Nwanguma did not threaten, curse at, or use any form of offensive language
toward any attendee of the Rally. 44. Nwanguma held up a sign depicting Defendant Trump's face on the body of a pig. 45. Trump ordered his supporters to "get [Nwanguma] out ofhere." 46. Nwanguma was thereafter violently assaulted by numerous protesters (as
discussed further below) until she was forced to leave the Rally. A video of this assault went viral soon thereafter, and is readily available to be viewed on the internet.
47. . At no point did a police officer come to Nwanguma's aid, nor did they assist in her removal. Trump's supporters, upon Trump's command, took it upon themselves to use physical force to remove her from the Rally.
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48. The most aggressive of those who assaulted Nwanguma were Defendants

Heimbach and Bamberger.

49. Heimbach, who is nearly twice Nwanguma's size, repeatedly shoved Nwanguma

and shouted "leftist scum" at her.

50. Eventually Heimbach returned to the crowd, and Bamberger began aggressively

moving Nwanguma further through the crowd by shoving her and striking her.

ID. MOLLYSHAH

51. PlaintiffMolly Shah attended the Rally with the intention ofpeacefully protesting

Trump.

52. Shah did not intentionally make harmful physical contact with any attendee of the

Rally. 53.

Shah, like Nwanguma, heard numerous ethnic and racial slurs used by Trump

supporters at the Rally. 54. Inside the I\aJly, Shah saw a group of 4-6 people standing wearing black t-shirts
with the words "tradworker.org" on them, which is the website for the Traditionalist Worker

Party. One ofthese people was Defendant Heimbach.

55. ·Shah continued to observe this group over the course of three hours, and watched

them talk to dozens of Trump supporters. At no time did she witness anyone involved in the

Trump Campaign or KJCC security approach them or question their presence.

56. Shah's group began to peacefully protest. When Trump told the audience to "get

'em out of here," Heimbach and his group rushed in and began physically assaulting · the

protesters.

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57. Shah witnessed the Unknown Defendant who was with Heimbach's group punch Plaintiff Brousseau.
58. Shah began to walk out and was shoved hard from behind by Defendant Heimbach.
59. As Shah continued to the back of the convention center, she was shoved and pushed by multiple Trump supporters.
60. As a result of the above-described incidents, Shah experienced pain and difficulty sleeping for several days after the Rally. IV. HENRY BROUSSEAU
61. Plaintiff Henry Brousseau attended the Rally with the intention of peacefully protesting Trump.
62. Brousseau did not intentionally make harmful physical contact with any attendee ofthe Rally.
63. Brousseau, who was a 17-year-old high-school student, began to peacefully protest. When Trump told the audience to "get 'em out of here," Heimbach and his group rushed in and began physically assaulting the protesters.
64. The Unknown Defendant, who is believed to be one of the Traditionalist Worker Party "comrades," punched Brousseau in the stomach.
65. Since that time, Brousseau has experienced anxiety and nightmares. V. MATTHEW HEIMBACH
66. Heimbach went to the Rally dressed in a Traditionalist Worker Party t-shirt and a red hat which said ''Make America Great Again," a Trump campaign slogan.
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67. Upon information and belief, Heimbach went to the Rally with other Traditionalist Worker Party activists (whic.h he calls "comrades") in hopes of recruiting more members from among Trump's supporters.
68. As described above, Heimbach personally physically attacked Plaintiffs Nwangurna and Shah. Nwangurna's assault and battery was captured on video.
69. Afterwards, Heimbach wrote and spoke extensively about the Rally, admitting to bis role in the physical altercation and implying that Nwanguma had initiated it.
70. In one blog post, Heimbach stated: Now there's some viral footage of several heated moments in Louisville. One features yours truly helping the crowd drive out one of the women who had been pushing, shoving, barking, and screaming at the attendees for the better part of an hour. I'll avoid any additional Trump events to ensure that I don't become a distraction, but the entire point of the BLM's tactics is to push people until they push back. It won"t be me next time, but White Americans are getting fed up and they're learning that they must either push back or be pushed down.
71. Despite the fact that multiple videos exist of the entire Rally, there is no videographic evidence of Nwanguma or any other Plaintiff "shoving, barking, and screaming" at attendees, because that simply did not happen.
72. In an interview with "Radio Aryan," Heimbach stated he was refraining from attending further rallies "because I want Donald Trump to continue to destroy the established Republicans, make the Jews around the world quake in their boots, and make leftists angry." VI. ALVIN BA.l\IIBERGER
73. Defendant Alvin Bamberger shoved Nwanguma, and continued to shove her repeatedly while she was exiting the Rally.
74. During the rally on March 1, 2016, Bamberger was wearing a uniform associated with the Korean War Veterans Association ("KWVA").
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75. Subsequently, after concerns were raised about Bamberger's behavior and

affiliation with KWVA, Bamberger wrote a letter to the KWVA admitting his role in the assault

and battery ofNwanguma.

76. In the letter, Bamberger writes: "Trump kept saying 'get them out, get them out'

and people in the crowd began pushing and shoving the protesters, . . . I physically pushed a

young woman down the aisle toward the exit, an action I sincerely regret."

77. Bamberger said he learned only afterwards that some of the Trump supporters

"standing right next to [him] were members of a white supremacy group."

78. Upon information and belief, the "white supremacy group" Bamberger refers to is

the Traditionalist Worker Party, one of whom was Defendant Heimbach. Bamberger also calls

them a "hate group."

79. "Unfortunately my state of mind after being knocked down and hurt[ing] myself,

and being caught between a group of white supremacists and Black Lives Matter protesters

contributed to my ·behavior however, there is no excuse for my actions," Bamberger wrote.

VTI. TRUl\llP'S DIRECTIVES

80.

As

discussed

above,

and

as

admitted

to

by

Defendant

-
Bamberger

in

his

letter,

the

actions taken against Plaintiffs by Defendants and other attendees of the Rally were pursuant to

the explicit directives given by Defendant Trump.

81. Specifically, Trump's repeated order to "get them out" was directed to his

supporters, and c~uld have no other reasonable meaning but to remove protesters, including the

Plaintiffs, using unwanted, hannful physical force.

82. Each time he said, "get them out," Trump intended for his supporters to use

unwanted, hann:ful physical force · to remove protesters, including the Plaintiffs; knew or

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reasonable should have known that his supporters would act upon his orders; and watched as his supporters physically removed and accosted Plaintiffs at the Rally. Vlll. THE AFTERMATH
83. All plaintiffs have filed reports with the Louisville Metro Police Department. As of the filing of this Complaint, the incident described above - much of which was captured on video and occurred in the presence of thousands of witnesses - has been under investigation for approximately a month with no arrests. IX TRUMP'S INCITEMENT AND ENDORSEMENT OF VIOLENCE AT SIMILAR
EVENTS 84. The Rally referred to above is not the first or last incident of its kind. 85. At a Trump rally held on November 21, 2015 in Binningham, Alabama, a protester was attacked, i.e., "roughed up." Trump commented on this incident, stating that the prote$1er "started screaming by himself' and "he should have been, maybe he should have been roughed up." Trump further stated that "it was absolutely disgusting what [the protester] was doing," i.e., protesting against Trump. 86. On February 1, 2016 at a rally in Cedar Rapids, Iowa, Trump instructed those in the crowd to "knock the crap out of" anyone who was "getting ready to throw a tomato." Trump followed this instruction by saying, "Seriously. Okay? Just knock the hell. .. " Trump continued by ensuring the crowd that if and when they took heed of his instruction, he would cover their legal fees: "I promise you, I will pay for the legal fees. I promise. I promise." 87. On February 22, 2016 at a rally in Las Vegas, Nevada, Trump responded to a protester by alluding to the fact that protesters had it too easy in present times. He expressed his desire for the way things once were: "I love the old days. You know what they used to do to guys like that when they were in a place like this? They'd be carried out on a stretcher, folks."
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88. Trump told his supporters that he would like "to punch [the protester] in the face." 89. On March 4, 2016, at a rally in Warren, Michigan, Trump gave the instruction to remove the protester. In doing so, Trump added the disclaimer that those removing him should not hurt him. However, this disclaimer was overshadowed by Trump's immediately following statement: "If you do (hurt him], I'll defend you in court. Don't worry about it." 90. On March 8, 2016, Breitbart reporter Michelle Fields was grabbed and thrown to the ground at a Trump press conference. Fields made allegations that she was grabbed by Trump's Campaign Manager. Subsequently, Fields filed a police report. Trump's response was that Fields "made the story up." Trump's Campaign Manager has since been arrested for assault. 91. On March 9, 2016 at a rally in Fayetteville, North Carolina, Trump, again, spoke of the "good 'old days" when protesters were treated "very, very rough." Trump asserted that such treatment deterred the protesters from doing it "again so easily." 92. On March 11, 2016 at a rally in St. Louis, Missouri, Trump claimed that "part of the problem and part of the reason it takes so long" to remove those protesting was people are too averse to hurting each other. Essentially, Trump advocated that more violence would help to cure the problem. 93. On March 19, 2016, at a rally in Arizona, a protester was punched and kicked repeatedly after being pointed out and described as "disgusting" by Trump from the stage. 94. On March 29, 2016 at a rally in Janesville, Wisconsin, a 15-year-old female protester was pepper sprayed in the face and sexually assaulted by two unidentified Trump supporters. As the protester left the rally Trump's supporters erupted with "Hell Yeah," name calling, e.g., "goddarnn communist, nigger lover," cries of victory, and an echo of Trump's usual response to protesters: "get 'em out ofhere!"
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95. Despite this persistent, unmistakable pattern of violence and/or threats of violence at his rallies, neither Tru~p himselfnor Donald J. Trump for President, Inc., have taken adequate measures to ensure that further assaults on protesters are eliminated or at least minimized, and in fact, Trump has continued to encourage the continuation and escalation of such violence in the same manner during the past few months.
CAUSES OF ACTION COUNT I BATTERY
96. The Plaintiff incorporates by reference, as if set forth fully herein, each and every averment, allegation, or statement contained in the previous paragraphs of this Verified Complaint.
97. As detailed in above paragraphs, Defendants Heimbach, Bamberger, and Unknown Defendant, without privilege or provocation, intentionally, maliciously, wantonly and/or recklessly made numerous offensive and/or harmful contacts with the persons of the Plaintiffs.
98. As a result of these hannful contacts, Plaintiffs suffered injuries in excess of the jurisdictional limits of this Court.
COUNT II ASSAULT 99. The Plaintiff incorporates by reference, as if set forth fully herein, each and every averment, allegation, or statement contained in the previous paragraphs of this Verified Complaint. 100. By attacking Plaintiffs, Defendants Heimbach, Bamberger, and Unknown Defendant, intentionally, maliciously, wantonly and/or recklessly caused Plaintiffs to experience
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apprehension and fright of an immediate harmful and/or offensive contact. 101. As a result of this apprehension and fright, Plaintiffs suffered injuries in excess of
the jurisdictional limits of this Court. COUNT ill
INCITEMENT 102. The Plaintiff incorporates by reference, as if set forth fully herein, each and every averment, allegation, or statement contained in the previous paragraphs of this Verified Complaint 103. As set forth in the description of the events at the Rally above, Defendant Trump, acting individually and as an agent of the Trump Campaign, incited a riot as defined under the Kentucky penal code, KRS 525.040 and KRS 525.010. 104. In directing his supporters to eject peaceful protesters using harmful physical force, Trump intended to create a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct created grave danger of damage or injury. 105. As a result of Trump's violation of the aforementioned statutes, Plaintiffs were harmed and have the right to recover pursuant to KRS 446.070. 106. Trump's speech, as set forth above, was calculated to incite violence against the Plaintiffs and others, and does not constitute speech protected by the First Amendment to the United States Constitution or any analogous provision in the Kentucky Constitution. '
COUNT IV AGENCYNICARIOUS LIABILITY 107. The Plaintiff incorporates by reference, as if set forth fully herein, each and every averment, allegation, or statement contained in the previous paragraphs of this Verified Complaint.
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108. At all times pertinent to the claims set forth above, Defendants Heimbach, Bamberger, and Unknown Defendant were acting as agents of Defendant Trump and/or the Trump Campaign.
109. The Trump Campaign is liable under a theory of respondeat superior or is otherwise vicariously liable for both the actions of Donald Trump himself and Trump's agents at a Trump Campaign event such as the Rally in question.
110. If the Trump Campaign and/or Trump himself is not jointly and severally liable for the actions of Heimbach and Bamberger, they should at least be apportioned fault for their actions as described above.
111. Defendant Trump and the Trump Campaign made no effort to suppress other offensive speech - e.g., racial and ethnic slurs, speech promoting racial apartheid, and speech unequivocally courting members for recognized hate groups - but selectively targeted the protesters for physical violence because of the content of their speech.
112. Trump knew or should have known based on the prior actions of his supporters at the above-described rallies that occurred prior to the Rally, that when he used the phrase "get'em out of here" it was reasonable foreseeable that his supporters would physically assault Plaintiffs while they were being removed.
113. Trump's statements and comments during the Rally called for and sanctioned the physical abuse of Plaintiffs by Heimbach, Bamberger, and Unknown Defendant.
114. Trump's inducement and. encouragement of Heimbach, Bamberger, and/or Unknown Defendant to remove Plaintiffs from the Rally by way of physical force was a substantial factor in causing the Plaintiffs' injuries
115. Trump knew or should have known that by encouraging members of the audience,
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including Heimbach, Bamberger, and/or Unknown Defendant, to "get [Plaintiffs] out of here," these individuals would physically assault the Plaintiffs.
COUNTV NEGLIGENCE, GROSS NEGLIGENCE, AND RECKLESSNESS 116. The Plaintiff incorporates by reference, as if set forth fully herein, each and every averment, allegation, or statement contained in the previous paragraphs of this Verified Complaint. 117. Defendants Trump and the Trump Campaign had a duty under Kentucky common law to provide adequate security in order to ensure the safety, protection, and well-being of Rally attendees and the general public in connection with the Rally. 118. Defendants Trump and the Trump Campaign breached the duties identified above, through their negligent, grossly negligent, and/or reckless actions, as set forth in this Complaint. 119. In addition, Defendants Trump and the Trump Campaign acted with the absence of even slight care, thus constituting gross negligence and/or recklessness under Kentucky common law. 120. Trump and the Trump campaign knew or should have known that relying on the crowd of Trump supporters to provide security, including making them responsible for ejecting peaceful protesters from the crowd, was an inadequate and entirely reckless, or at least negligent/grossly negligent, way in which to provide security. 121. Trump and the Trump Campaign knew or should have known that by encouraging members of the audience, incl].lding Heimbach, Bamberger, and/or Unknown Defendant, to "get [Plaintiffs] out of here," these individuals would physically attack the Plaintiffs. 122. In particular, the directive to eject a Black woman, when several members of a group that Trump knew or should have known was a recognized hate group were present in the
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·.:
audience, was entirely reckless, or at least negligent/grossly negligent. 123. As a direct and proximate result of Defendants' breach of their duties, Plaintiff has
suffered losses in excess of the jurisdictional limits of this Court. COUNT VI
PUNITIVE DAMAGES 124. The Plaintiff incorporates by reference, as if set forth fully herein, each and every averment, allegation, or statement contained in the previous paragraphs of this Verified Complaint. 125. Defendants acted toward Plaintiff with oppression and/or malice, and with knowledge that serious harm would likely arise from their conduct, thus entitling Plaintiff to recover punitive damages.
DEMAND FOR RELIEF WHEREAS, Plaintiffs pray as follows: A. That the Court award compensatory damages to them as against all Defendants for physical injuries, emotional distress, humiliation, and mental anguish; B. That the Court award punitive damages as against all Defendants, in ·an amount that will deter such conduct by defendants in the future; C. For pre-judgment and post-judgment interest and recovery oftheir costs; and E. For any and all other relief to which they may be entitled.
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•
\.

~-------------DANIEL J. CANON, PSC DAVIDN. WARD CLAY DANIEL WALTON & ADAMS, PLC 101 Meidinger Tower
462 South Fourth Street Louisville, Kentucky 40202 (502) 561-2005 dan@justiceky .com david@justiceky.com Counselfor Plaintiffs
GREGORY A. BELZLEY CAMILLE BATHURST BELZLEY BATHURST ATTORNEYS P.O . Box 278
Prospect, Kentucky 40059 (502) 228-5084 gbelzley@aol.com Counselfor Plaintiffs

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•
VERIFICATION I, Kashiya Nwanguma, state that I have read the foregoing, and the statements contained therein are true to the best of my knowledge and belief.

Subscribed and sworn to before me by KASHIYA NWANGUMA on this

2016, to be her free act and·voluntary deed.

9 . \'f\60{ My commission expires:

dO\~

~·

day of March,

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,.• •
\ '.

VERIFICATION

I, Molly Shah, state that I have read the foregoing, and the statements contained therein are true to

the best of my knowledge and belief.

Molly Sh h
this~~ Subscribed and sworn to before me by MOLLY SHAH on
her free act and voluntary deed.

)!day of March, 2016, to be

My commission expires: //) -1- / ~

21
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Case 3:16-cv-00247-DJH-HBB Document 1-1 Filed 04/29/16 Page 22 of 22 PageID #: 26

VERIFICATION I, Henry Brousseau, state that I have read the foregoing, and the statements contained therein are true to the best ofmy knowledge and belief.

S \ Subscribed and sworn to before me by HENRY BROUSSEAU on this

day of March,

2016, to be his free act and voluntary deed.

.N\;J_ My commission expires:

C\ ,dD\t

l)

22

 
 Case 3:16-cv-00247-DJH-HBB Document 9 Filed 05/20/16 Page 1 of 2 PageID #: 48

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

KASHIYA NWANGUMA, ET AL.

CASE NO.: 3:16-cv-247-DJH

PLAINTIFFS,

v.

DONALD J. TRUMP, ET AL.

DEFENDANTS.

Filed Electronically

MOTION TO DISMISS

Defendants Donald J. Trump, individually and Donald J. Trump for President, Inc., through

counsel, and pursuant to Federal Rule of Civil Procedure 12(b)(6), move this Court to dismiss the

Complaint as to Mr. Trump and Donald J. Trump for President, Inc. of the Plaintiffs Kashiya

Nwanguma, Molly Shah and Henry Brousseau in its entirety, with prejudice. Attached hereto is a

Brief in Support of the Defendants’ Motion to Dismiss.

Respectfully submitted,

LANDRUM & SHOUSE

/s/ R. Kent Westberry R. Kent Westberry LANDRUM & SHOUSE, LLP 220 W. Main St., Ste. 1900 Louisville, KY 40202-1395 Ph: (502) 589-7616 Fx: (502) 589-2119 kwestberry@landrumshouse.com COUNSEL FOR DEFENDANT Donald J. Trump for President, Inc. and Donald J. Trump, Individually

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served on the 20th day of May, 2016 via CM/ECF.
I further certify that on the 20th day of May, 2016 I served a copy of the foregoing document on the following party of record by U.S. mail.
Matthew Warren Heimbach 222 Mable Street, Apt 2 Paoli, IN 47454 Defendant
/s/ R. Kent Westberry COUNSEL FOR DEFENDANT Donald J. Trump for President, Inc. and Donald J. Trump, Individually

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

KASHIYA NWANGUMA, ET AL. PLAINTIFFS,
v. DONALD J. TRUMP, ET AL.
DEFENDANTS.

CASE NO.: 3:16-cv-247-DJH

BRIEF IN SUPPORT OF MOTION TO DISMISS Political speech at a political rally lies at the core of the First Amendment. Here, Plaintiffs admit they attended Donald Trump’s speech in order to protest the speech and harass the people who had gathered to hear Mr. Trump. And now, despite attending Mr. Trump’s gathering for the admitted purpose of heckling Mr. Trump and his supporters, those protestors accuse Mr. Trump of “incit[ing] a riot,” causing protesters to be “violently assaulted,” and “sanction[ing] the physical abuse” of attendees. Compl. ¶¶ 46, 103, 113. Plaintiffs’ allegations threaten fundamental constitutional protections and must be dismissed. They cannot survive the motion-to-dismiss standard because they fall far short of raising “a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Because Plaintiffs have failed “to state [any] claim to relief that is plausible on its face” as to Mr. Trump and Donald J. Trump for President, Inc. (“Campaign”), the claims against Mr. Trump and the Campaign must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)

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STATEMENT OF FACTS Nearly a year ago, Donald Trump announced his candidacy for President. Since then he has given speeches across the country. While the vast majority of people who attend Mr. Trump’s speeches are there to support Mr. Trump, a small minority come to heckle Mr. Trump and his supporters and otherwise cause disruptions. On March 1, 2016, several thousand people gathered to hear Mr. Trump speak in Louisville, Kentucky. According to Plaintiffs, among the thousands of attendees were three individuals who came with the express purpose of protesting Mr. Trump’s speech: Ms. Nwanguma, Ms. Shah, and Mr. Brousseau. All three admit they attended the speech to protest. Compl. ¶ 37 (“Nwanguma attended the Rally with the intention of peacefully protesting Trump”); id. ¶¶ 51, 61. And protest they did. Several times during the speech, these protesters, intent on shutting Mr. Trump down, caused disturbances in the crowd. As a letter quoted by Plaintiffs’ Complaint revealed, when Mr. Trump took the stage, “[p]rotestors in the crowd became vocal and began pushing and shoving their way toward the stage.” Letter from A. Bamberger to L. Kinard (Mar. 8, 2016).1 Mr. Bamberger, who allegedly pushed a protester, continued, “At one point I was physically knocked down and fell to the ground, losing my jacket (which was eventually returned to me). The protestors were holding up signs, chanting ‘black lives matter’ and pushing and shoving Trump supporters.” Id. Ms. Nwanguma admits she held a poster of Mr. Trump’s face transposed on the body of a pig. Compl. ¶ 44. The disruptions were loud enough to distract Mr. Trump from his position on the dais. Upon noticing the protesters attempting to disrupt his speech, Mr. Trump said, “Get them out of
1 Because Plaintiffs have relied on that letter in their Complaint, it is proper for this Court to look to the whole letter. A copy is available at http://eaglecountryonline.com/localarticle/203434/.
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here.” Plaintiffs state without factual support that this directive was issued to the crowd writ large, but it is more plausible that Mr. Trump was simply instructing security to remove those individuals who were making it impossible for others to hear his speech.
Plaintiffs claim that after Mr. Trump said, “Get them out of here,” members of the crowd hurled insults, pushed them, and even punched them. Whatever the accuracy of those claims, Plaintiffs identify only three people responsible for the alleged physical assaults—Matthew Heimbach, Alvin Bamberger, and an unknown defendant. It is clear from Plaintiffs’ own Complaint that these individuals, who have no connection whatsoever to Mr. Trump or the Campaign, acted on their own. According to Plaintiffs, Mr. Heimbach showed up to the speech in a Traditionalist Worker Party t-shirt—signaling his allegiance to the white supremacist group—“in hopes of recruiting more members from among Trump’s supporters.” Compl. ¶¶ 66– 67. Mr. Bamberger was there because “[o]ne of my favorite things to do is attend political rallies particularly Presidential rallies.” Letter from A. Bamberger to L. Kinard (Mar. 8, 2016). And Mr. Bamberger admits that “my emotions got the best of me,” after he was pushed to the ground. Id. As to the third person who supposedly assaulted the protesters, Plaintiffs have failed to identify that person, but claim that he, too, is associated with the Traditionalist Worker Party. Compl. ¶ 57. These portions of the Complaint confirm that the individuals who engaged in the alleged physical altercations were not acting for or at the direction of Mr. Trump or the Campaign, but were instead acting on their own initiative and for their own purposes.
Plaintiffs have sought to paint a shocking scene, but they allege no actual injury. As to Ms. Nwanguma, the Complaint says she was subjected to “shoving” and “striking,” but does not allege she suffered any actual damage from these acts. Id. ¶ 50. The Complaint claims Ms. Shah experienced “pain and difficulty sleeping for several days.” Id. ¶ 60. But it does not identify
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what sort of pain she suffered, whether she was ever treated for the pain, or how her lack of sleep had any effect on her job or caused any other physical or financial damage. And Mr. Brousseau allegedly experienced “anxiety and nightmares” after Mr. Trump’s speech, but he has evidently yet to seek professional help; nor has Mr. Brousseau alleged that these lingering effects caused him any physical or financial damage. Id. ¶ 65.
STANDARD OF REVIEW Mr. Trump and the Campaign move to dismiss Plaintiffs’ Complaint against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The standard under Rule 12(b)(6) is well-known. A complaint must be dismissed when it fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A claim should be dismissed if it asserts a legal theory that is not cognizable as a matter of law, or if it fails to state sufficient facts to establish a legally recognized claim. See Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015). While the court should accept all well-pleaded factual allegations as true, Gunasekera v. Irwin, 551 F.3d 461, 467 (6th Cir. 2009), “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
ARGUMENT Plaintiffs have brought numerous claims against Mr. Trump and the Campaign, but none have merit. Neither Mr. Trump nor the Campaign condoned or incited violence of any kind at the Louisville speech. To hold either liable for the actions of a few alleged bad apples would set a dangerous precedent that would chill core political speech by empowering hecklers to provoke violence at a political rally and then file suit against the candidate they dislike for the results of their provocation. It is inconceivable that a politician would be held responsible for the actions
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of everyone who attends his speeches. Moreover, even setting aside the merits of Plaintiffs’ accusations, their allegations fall short of the 12(b)(6) standard. For all these reasons, Plaintiffs’ claims should be dismissed. I. PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT MR. TRUMP OR THE CAMPAIGN
INCITED A RIOT
At bottom, Plaintiffs claim Mr. Trump’s statement “Get them out of here” incited others to harm Plaintiffs. That claim fails for numerous reasons: (1) it is not plausible that Mr. Trump’s statement was directed at the crowd or condoned violence; (2) plaintiffs have not alleged there was a riot at all (because no riot occurred); and (3) the alleged statement is protected by the First Amendment.
A. Plaintiffs’ Incitement Claim Is Not Plausible. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”
Iqbal, 556 U.S. at 679 (emphasis added). Plaintiffs’ allegation of incitement is implausible for at least two reasons. First, it is illogical that Mr. Trump directed his statement to civilians who were attending his rally. For Plaintiffs’ claim to survive, the Court would have to accept the claim that Mr. Trump was deputizing the entire audience to perform security for his event. Far more plausible is the “obvious alternative explanation” that Mr. Trump was calling on the Secret Service, event security, and local law enforcement to enforce the law and remove hecklers who were ruining the event for others. Id. at 682. And “given [this] more likely explanatio[n],” Plaintiffs’ allegations “do not plausibly establish” a claim for incitement. Id. at 681.
Second, Mr. Trump’s alleged statement “Get them our of here” makes no suggestion whatsoever that anyone should use physical force. And that is the only statement by Mr. Trump that Plaintiffs allege led to violence. Compl. ¶¶ 32, 33, 34, 45, 56, 63, 76, 81, 82, 112, 115, 121. The statement merely says to “Get them out of [the convention center].” It no more calls for
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violence than did President Obama’s campaign statement “If they bring a knife to the fight, we bring a gun.”2 Indeed, as Plaintiffs’ Complaint admits, Mr. Trump explicitly said, “Don’t hurt them.” Compl. ¶ 34. Thus, even if some causal link could be inferred between Mr. Trump’s call to have the protesters removed and the actions of three people in the crowd, Mr. Trump’s directive not to harm anyone severed the connection.
In sum, it is mistaken to convert Mr. Trump’s statement to remove those who were trying to disrupt his speech—directed at professional security personnel to do their job—into a general call for members of the crowd to harm the protesters. And given the implausibility of this claim, it must be dismissed. Iqbal, 556 U.S. at 681.
B. Plaintiffs Have Failed To Allege There Was A Riot. Plaintiffs have also failed to allege that Mr. Trump actually incited a riot. And indeed,
there was no riot. Kentucky law makes it a crime to “incit[e] or urg[e] five (5) or more persons to create or engage in a riot.” KRS 525.040. Kentucky defines “riot” to mean “a public disturbance involving an assemblage of five (5) or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.” KRS 525.010. Plaintiffs fail to allege two key elements of that offense.
First, Plaintiffs identify only three persons that allegedly engaged in violence: Mr. Bamberger, Mr. Heimbach, and an “unknown defendant.” Three does not make five. For that reason alone, defendants have not plead a viable claim. Though they allege at various places in their Complaint that they were assaulted by a “group,” Compl. ¶ 57, or pushed by “multiple”
2 Obama: ‘If They Bring A Knife To The Fight, We Bring A Gun, THE WALL STREET JOURNAL BLOG (Jun 14, 2008), available at http://blogs.wsj.com/washwire/2008/06/14/obamaif-they-bring-a-knife-to-the-fight-we-bring-a-gun/#:v4VizqN-P9BD8A.
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crowd members, id. ¶ 59, nowhere do they specify a number of individuals. Plaintiffs have thus failed to make factual allegations sufficient to satisfy this five-person element.
Second, to constitute a “riot” there must be “tumultuous and violent conduct” that “creates grave danger of damage or injury to property or persons.” KRS 525.010. Nowhere in their Complaint do Plaintiffs allege there was “tumultuous and violent” conduct or “grave danger.” “Tumultuous” means “marked by tumult: full of commotion and uproar.” Webster’s Third International Dictionary 2462. But Plaintiffs do not allege the rally reached that extreme level of disturbance.
Third, Plaintiffs fail to allege that Mr. Trump intended for any tumultuous and violent conduct to occur. Thus, their claim for inciting a riot should be dismissed.
Against these pleading deficiencies, Plaintiffs cannot seek refuge in their formulaic recitation of the elements of a riot under Kentucky law. See Compl. ¶ 104. “A pleading must go beyond ‘labels and conclusions’ or a mere ‘formulaic recitation of the elements of a cause of action.’” SFS Check, LLC v. First Bank of Delaware, 774 F.3d 351, 355 (6th Cir. 2014) (quoting Twombly, 550 U.S. at 555. Plaintiffs’ “‘naked assertions devoid of further factual enhancement’ contribute nothing to the sufficiency of the complaint.” 16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 506 (6th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). Plaintiffs’ failure to allege facts giving rise to a plausible allegation that Mr. Trump intended his statement to incite a riot (tumultuous and violent acts by five or more), means the claim must be dismissed.
C. Mr. Trump’s Alleged Statements Are Protected By The First Amendment. But even assuming Plaintiffs’ claim that Mr. Trump’s statement contributed to the
physical altercations were plausible, the First Amendment provides complete protection for Mr. Trump and the Campaign. The right to freedom of speech means the state cannot “proscribe
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advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1989) (per curiam). If the law were otherwise, political speech would be chilled.
In Brandenburg, the Supreme Court erected an incredibly high bar to proving incitement. See James v. Meow Media, Inc., 300 F.3d 683, 698 (6th Cir. 2002) (en banc). That test requires proof that “(1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.” Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 246 (6th Cir. 2015). The problem with Plaintiffs’ allegations is that “[a]dvocacy for the use of force or lawless behavior, intent, and imminence, are all absent.” Id. at 244. Thus, “[t]he doctrine of incitement has absolutely no application” to this case. Id.
1. First, as already discussed, Mr. Trump’s statement did not advocate—or even mention—the use of any force whatsoever. Because “[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it,” Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002), it is all the more true that a statement that “fails to specifically advocate” for the crowd “to take ‘any action’ cannot constitute incitement.” Bible Believers, 805 F.3d at 244 (quoting Hess v. Indiana, 414 U.S. 105, 109 (1973)). Because Mr. Trump’s statement was most plausibly directed at professional security personnel, there was no cause for the crowd to take any action at all. And even if some in the crowd mistakenly understood his statement to be directed at them (which is irrelevant), his statement does not call for any physical
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contact whatsoever. Indeed, he quickly followed his statement with a specific admonition not to harm the protesters. Compl. ¶ 34.
Mr. Trump’s request to remove some protesters falls short of the type of speech that may be punished as incitement. As the Sixth Circuit has already recognized, “[i]t is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot.” Id. And unsurprisingly, “[t]here will rarely be enough evidence to create a jury question on whether a speaker was intending to incite imminent crime.” Eugene Volokh, Crime–Facilitating Speech, 57 STAN. L. REV. 1095, 1190 (2005). Take Hess v. Indiana, where a protester yelled, “We’ll take the fucking street again,” to a crowd that was already agitated and resisting police. 414 U.S. at 107. The Court held that speech could not be punished. Id. Or take NAACP v. Claiborne Hardware Co., where a speaker told a crowd that anyone who failed to boycott businesses would be “disciplined,” and said, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” 458 U.S. 886, 902 (1982). The Court held that this speech was not incitement. Id. at 928–29. If these incendiary statements do not rise to the level of incitement then surely Mr. Trump’s request (again, to professional security) to remove unruly protesters from a private speech is not incitement.
2. Even if Mr. Trump’s statement could be understood as a call for members of the crowd to remove the hecklers, that statement is still constitutionally protected speech. In order for a speaker to be liable for incitement, his call to use force must be a call for “imminent lawless action.” Brandenburg, 395 U.S. at 447 (emphasis added). There is nothing illegal about removing trespassers from a private event, even if physical force must be used. Under Kentucky law, “a landowner or possessor may use that degree of force necessary, or that appears to him to be reasonably necessary under the circumstances to eject an unwelcome trespasser from his
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premises.” McCoy v. Taylor Tire Co., 254 S.W.2d 923, 924 (Ky. 1953); accord Feld v. Feld, 688 F.3d 779, 783 (D.C. Cir. 2012) (“[T]he right to exclude another from one’s property includes the right to use reasonable force.”). Indeed, that venerable rule comes from the common law. See Feld, 688 F.3d at 783; see also 13 D. LEIBSON, Defense of Property, KY. PRAC. TORT LAW § 9:7 (2015).
It is indisputable that the protesters were trespassing and Mr. Trump and the Campaign had the right to remove them (by force if necessary). First, Plaintiffs admit in their Complaint that Mr. Trump and the Campaign were possessors of the property (the Kentucky International Convention Center) at the time. Compl. ¶ 29. Thus, Mr. Trump and the campaign had the right to exclude the unwelcome trespassers from the center. Second, though the protesters may have “entered the area in question by lawful permission,” once they began their protests “[t]hey knew then that they were in a place they had no right to be.” O’Leary v. Com., 441 S.W.2d 150, 157 (Ky. 1969). And “a refusal to leave the property, though lawfully and peacefully entered in the first instance, invites the owner to eject the intruder by force.” Id. at 157.
In O’Leary, students protested the presence of government recruiters at the University of Kentucky. Though they initially gained approval from the school, when the protest became too large, the dean ordered everyone to leave. All but four students complied, and those four students were physically removed from the building and eventually convicted of breaching the peace. The court recognized that those students were trespassers once they refused to leave, even though they had permission to enter the premises, and the college had the right to physically remove them. Id.
The same is true here. The protesters may have been permitted to enter the convention center, but once they began their protests they were trespassing, and, indeed, committing a crime
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by breaching the peace. That gave Mr. Trump and the Campaign the legal right to remove the protesters by force. Of course, neither Mr. Trump nor the Campaign had the opportunity to actually remove the protestors because members of the crowd took matters into their own hands. But the point is that even if Mr. Trump’s statement “Get them out of here” was directed at the crowd (and it was not), it was not advocating illegal activity. Instead, it was advocating legal activity: the peaceable removal of trespassers from private property. The claim of incitement therefore must be dismissed.
3. Finally, Plaintiffs’ incitement claim fails to allege that the likely result of Mr. Trump’s statement was imminent physical violence. See Brandenburg, 395 U.S. at 447. At worst the statement advocates the removal of trespassers from private property. There was no reason to suspect that violence would follow from that statement. And Plaintiffs’ suggestion that Mr. Trump’s other statements about protesters served to somehow inspire violence misses the mark. First, Plaintiffs only point to three prior speeches where Mr. Trump supposedly “incite[d]” and “endorse[d]” “violence.” Compl., at p. 12. Any statements after the Louisville speech are irrelevant. But even viewing Mr. Trump’s statements at other rallies in the most negative light, they were, at most, only an abstract discussion of physical force. “[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” Noto v. United States, 367 U.S. 290, 298 (1961). And specifically as to Mr. Trump’s statements about the Birmingham, Alabama rally, Plaintiffs leave out the key fact that after Mr. Trump said to have the protester removed, it was Mr. Trump’s security team who removed the protester.3 That
3 J. Johnson & M. Jordan, Trump on Rally Protester, WASHINGTON POST (Nov. 22, 2015).
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deeply undercuts Plaintiffs’ claim that Mr. Trump’s statement in Louisville was directed at the members of the crowd.
As to the other two speeches where Plaintiffs claim Mr. Trump discussed using physical force against protesters, Plaintiffs fail to identify any violence or even physical altercations that occurred. Thus, even if Mr. Trump discussed violence in the abstract, “there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality.” United States v. Williams, 553 U.S. 285, 298–99 (2008).
There was thus no reason to expect that Mr. Trump’s statement at the Louisville speech to “get [the protesters] out” would lead to any injury to the protesters. Moreover, even if one could posit that the likely response to that statement would have been “imminent lawless action,” Brandenburg, 395 U.S. at 447, Mr. Trump corrected any such misunderstanding by immediately saying (by Plaintiffs’ own admission) “Don’t hurt them.” Compl. ¶ 34.
Finally, the subject matter of this lawsuit favors dismissal. The protesters were attempting to silence Mr. Trump’s political speech. Now, having failed to thwart Mr. Trump’s attempt to speak to his supporters, Plaintiffs seek to tie him up in prolonged litigation. If the First Amendment protects anything, it protects statements by political candidates for the highest office in the land to the voters who wish to hear them in the face of attempts by political opponents to silence that speech. II. PLAINTIFFS FAILED TO PLAUSIBLY ALLEGE MR. TRUMP OR THE CAMPAIGN ARE
VICARIOUSLY LIABLE FOR THE ACTIONS OF INDIVIDUALS IN THE CROWD Plaintiffs also fail to plausibly allege that Mr. Trump or the Campaign are vicariously
liable for the injuries Plaintiffs supposedly suffered. Plaintiffs’ first theory of vicarious liability is that Messrs. Heimbach, Bamberger, and the “unknown defendant” were “acting as agents of Defendant Trump and/or the Trump Campaign.” Compl. ¶ 108. Such a “bald” allegation of
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agency “is by itself a mere legal conclusion and is therefore insufficient to withstand a motion to dismiss.” Prochaska & Associates, Inc. v. Merrill Lynch Pierce Fenner & Smith, Inc., 798 F.Supp. 1427, 1433 (D. Neb. 1992). “A complaint relying on agency must plead facts which, if proved, could establish the existence of an agency relationship. It is insufficient to merely plead the legal conclusion of agency.” Bird v. Delacruz, 2005 WL 1625303, at *4 (S.D. Ohio July 6, 2005); see also Nuevo Mundo Holdings v. PriceWaterhouseCoopers LLP, 2004 WL 112948, at *6 (S.D.N.Y. 2004).
Under Kentucky law, agency “is the fiduciary relation which results from the manifestation of consent by one person [the principal] to another [the agent] that the other shall act on his behalf and subject to his control, and consent by the other so to act.” Phelps v. Louisville Water Company, 103 S.W.3d 46, 50 (Ky. 2003); see also Papa John’s Int’l, Inc. v. McCoy, 244 S.W.3d 44, 51–52 (Ky. 2008); RESTATEMENT (THIRD) OF AGENCY § 707. And “the right to control is considered the most critical element in determining whether an agency relationship exists.” CSX Transportation, Inc. v. First National Bank of Grayson, 14 S.W.3d 563, 567 (Ky. App. 1999) (quotation marks omitted). In other words, “[t]here is no agency relationship where the alleged principal has no right of control over the alleged agent.” Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 657 F.Supp. 1475, 1481 n.2 (S.D.N.Y. 1987).
Plaintiffs fail to allege any facts that would suggest Mr. Trump had the right to control the individuals who supposedly harmed Plaintiffs. If anything, their allegations compel the opposite conclusion—despite Mr. Trump’s admonition not to hurt any of the protesters, certain members of the crowd allegedly did so anyway. Compare Compl. ¶ 34 with id. ¶ 97. Plaintiffs have pointed to no preexisting relationship between Mr. Trump and the alleged perpetrators (because there is none). Nor have they identified an agreement between Mr. Trump and the
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alleged perpetrators (because there is none). There is simply no connection between Mr. Trump and these Defendants and nothing Plaintiffs allege shows otherwise.
Beyond a vague reference to agency (which Plaintiffs fail to plead any facts to support), Plaintiffs exhume the phrase respondeat superior. But that doctrine is confined to employment. See Patterson v. Blair, 172 S.W.3d 361, 364 (Ky. 2005) (quoting Osborne v. Payne, 31 S.W.3d 911, 915 (Ky. 2000) (“The critical analysis is whether the employee or agent was acting within the scope of his employment at the time of his tortious act.”). As Kentucky’s Supreme Court has written, “[u]nder the doctrine of respondeat superior, an employer can be held vicariously liable for an employee’s tortious actions if committed in the scope of his or her employment.” Papa John’s, 244 S.W.3d at 56 (emphasis added). There is not (and cannot be) any contention that Mr. Trump or the Campaign employed the other defendants.
In any event, even if this doctrine had some relevance to this case, it is inapplicable “unless the intentional wrongs of the agent were calculated to advance the cause of the principal or were appropriate to the normal scope of the operator’s employment.” Osborne, 31 S.W.3d at 915. Since the men who carried out the alleged attacks on Plaintiffs were not employees, it is nearly impossible to say what the hypothetical scope of the employment was. But even if the men were somehow tasked with removing Plaintiffs from the convention center, they committed intentional torts, which means liability turns on “the purpose or motive of the employee in determining whether he or she was acting within the scope of employment.” Papa John’s, 244 S.W.3d at 56; O’Bryan v. Holy See, 556 F.3d 361, 383 (6th Cir. 2009). The other defendants purposes vary but they were definitely not trying to help Mr. Trump.
Based on the allegations in the Complaint, it might be inferred that Mr. Heimbach was punching Ms. Nwanguma (assuming he was) out of racial animus, given he is alleged to be a
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white supremacist. Compl. ¶ 67. That is confirmed by the epithets he and others in his group are alleged to have shouted at her (before Mr. Trump ever spoke). Id. ¶¶ 40–49. And Mr. Bamberger has admitted that his emotions got the best of him after he was pushed to the ground. See Letter from A. Bamberger to L. Kinard (Mar. 8, 2016). Thus, any actions on his part were emotional retaliation for those acts rather than an attempt to help Mr. Trump. Plaintiffs’ claims as to vicarious liability must therefore be dismissed. III. PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT MR. TRUMP OR THE CAMPAIGN ARE
LIABLE UNDER EVEN A NEGLIGENCE STANDARD Plaintiffs’ final attempt to hold Mr. Trump and the Campaign liable for the actions of
unaffiliated third parties is a claim that Mr. Trump and the Campaign failed to “provide adequate security in order to ensure the safety” of those attending the speech. Compl. ¶ 117. That claim likewise fails. Plaintiffs allege no facts about what type or what amount of security was present. Nor have they alleged what sort of security should have been provided or what the cost of such security would have been. And Plaintiffs certainly have provided no indication that any amount of security would have prevented an alleged, avowed white supremacist from punching an African-American protestor. It is simply not plausible that more security (in addition to local police, event security, and Secret Service agents) would have prevented Mr. Heimbach from engaging in the violence he is alleged to have engaged in. After all, Plaintiffs’ Complaint alleges that Heimbach was there not to support Mr. Trump but to recruit people to the Traditionalist Workers Party. Id. ¶ 67.
But Plaintiffs’ claim fails for even more basic reasons. It is black-letter law that, to succeed on a claim of negligence, a plaintiff must “establish: (1) a duty on the part of the defendant; (2) a breach of that duty; and (3) consequent injury.” Murphy v. Second St. Corp., 48 S.W.3d 571, 573–74 (Ky. Ct. App. 2001). Plaintiffs’ claims fail at each step.
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First, neither Mr. Trump nor the Campaign owed Plaintiffs a duty. Under Kentucky law, “[a] proprietor is not the insurer of the safety of its guests.” Id. at 574. So even assuming Mr. Trump and the Campaign were proprietors (which they were not—the actual owners of the convention center were), Mr. Trump and the Campaign are not liable because they were not responsible for insuring the safety of attendees.
But even if there were a duty owed to Plaintiffs, that duty was only to exercise “ordinary care.” Grisham v. Wal-Mart Stores, Inc., 929 F.Supp. 1054, 1056 (E.D. Ky. 1995), aff’d sub nom., 89 F.3d 833 (6th Cir. 1996). Here, that means that if defendants knew “of activities or conduct of other patrons or third persons which would lead a reasonably prudent person to believe or anticipate that injury to a patron might be caused, it is the proprietor’s duty to stop such conduct, if he reasonably can.” Id. at 1057 (quoting Napper v. Kenwood Drive-In Theatre Co., 310 S.W.2d 270, 271–72 (Ky. 1958)). Of course, “what constitutes ordinary care or reasonable foreseeability varies with the particular circumstances. It is proportionate to the danger to be apprehended.” Napper, 310 S.W.2d at 271. But “[t]he mere fact that some of the patrons are boisterous does not alone warrant the belief that they may likely physically attack other patrons.” Id.; see also Sidebottom v. Aubrey, 101 S.W.2d 212, 213–14 (Ky. App. 1937).
Plaintiffs point to only one incident of alleged violence at a speech by Mr. Trump prior to his speech in Louisville. Kentucky law is clear that “neither a single incident nor sporadic incidents are sufficient to establish foreseeability.” Grisham, 929 F.Supp. at 1058. Take Napper, 310 S.W. 2d 270. There the court found that merely because a group of boys had been “smarting off” earlier, it was not foreseeable that they would assault a particular patron. Id. at 271. And in Grisham, even though there had been four robberies in the area, it was not reasonably foreseeable that a shopper would be shot in Wal-Mart’s parking lot. 929 F.Supp. at
16

Case 3:16-cv-00247-DJH-HBB Document 9-1 Filed 05/20/16 Page 17 of 20 PageID #: 66
1057. One of the few cases where a Kentucky court concluded criminal conduct was reasonably foreseeable was Waldon v. Housing Authority of Paducah, 854 S.W.2d 777 (Ky. App. 1991). There the court held that a landlord could be liable for failing to take action to protect a tenant who had been shot and killed. The court noted the landowner was aware the decedent repeatedly threatened to kill the victim, the assailant was living at the apartment complex, and the defendant took no steps to evict him from the premises. Id. at 779.
This case is much more similar to Napper and Grisham. Plaintiffs can only point to one prior incident of alleged violence at a speech by Mr. Trump. Compl. ¶ 85. But as Grisham held, “neither a single incident nor sporadic incidents are sufficient to establish foreseeability.” 929 F.Supp. at 1058. This case is a far cry from the sort of prolonged, specific threats that rendered the landowner in Waldon potentially liable. In Waldon, the landlord was aware that the assailant had repeatedly threatened to kill the victim. 854 S.W.2d at 779. But here, Plaintiffs do not even allege any history between the alleged assailants and the Plaintiffs, much less history that Mr. Trump or the Campaign knew about. Instead, it is undisputed that Mr. Trump and the Campaign were unaware that members of a white supremacist group would be present at the speech. Thus, Mr. Trump and the Campaign could not possibly have known more security might be needed.
In sum, neither Mr. Trump nor the Campaign owed any duty to Plaintiffs. It was not reasonably foreseeable that an alleged, avowed white supremacist would attend the rally with the express purpose of recruiting members for his cause. It was equally unforeseeable that Mr. Bamberger would “let [his] emotions [get] the best of [him]” after being pushed to the ground. And since none of these acts were foreseeable, there was no duty to breach.
Further, even if these events were somehow foreseeable, neither Mr. Trump nor the Campaign breached their duty because they provided adequate security. If security is necessary,
17

Case 3:16-cv-00247-DJH-HBB Document 9-1 Filed 05/20/16 Page 18 of 20 PageID #: 67
it needs only be “proportionate to the danger to be apprehended.” Napper, 310 S.W.2d at 271. Even the events that allegedly transpired would not warrant massive security. Sometimes people in crowds become disorderly and no reasonable amount of security can categorically prevent that. Indeed, Plaintiffs have not even made allegations regarding what sort of security they believe was needed, or about whether adding police officers would have prevented the incidents they allege took place.
That deficiency leads to another reason why Plaintiffs’ negligence claim about lack of security fails. Plaintiffs fail to plausibly allege proximate cause, a necessary element of any negligence claim. See Spivey v Sheeler, 514 S.W.2d 667, 671 (Ky. App. 1974). The actions of individuals in the crowd were independent of anything Mr. Trump said on the stage, and were most likely occurring before Mr. Trump said, “Get them out of here.” There is thus no causal link in the Complaint from the statement to the acts. Moreover, Mr. Trump’s statement was likely not directed at the crowd, despite Plaintiffs unsubstantiated claims to the contrary. The more likely scenario—which is the proper test on a motion-to-dismiss—is that Mr. Trump was asking security to remove the protesters. Thus, his statement could not have been the proximate cause of any violence.
More to the point, even if Mr. Trump’s statement were directed at members of the crowd, “Get them out of here” is not a call to violence. Mr. Trump had a right under Kentucky law to have protesters removed from his private event. Nothing about invoking that right is a signal that individuals should engage in violence against the trespassers. And, again, any causal connection that might be drawn from Mr. Trump’s statement to the acts carried out by the crowd was severed by Mr. Trump’s clear instruction that nobody was to hurt any of the protesters.
18

Case 3:16-cv-00247-DJH-HBB Document 9-1 Filed 05/20/16 Page 19 of 20 PageID #: 68
Finally, if Plaintiffs are correct that it was foreseeable that violence could occur at the speech, then Plaintiffs are barred from recovering from Mr. Trump or the Campaign by the doctrine of assumption of the risk. See Dean v. Martz, 329 S.W.2d 371, 374 (Ky. 1959). For example, “a spectator at a baseball game who chooses to sit in an unscreened grandstand or area, assumes the risk of being hit by a thrown or foul ball, for he voluntarily subjected himself to the hazards attendant upon and usually incident to and inherent in the game.” Id. Plaintiffs admit they went to Mr. Trump’s speech to cause trouble; they likely hoped that some form of violence would break out as way to publicize their protest of Mr. Trump’s message and to publicize their counter-message. By coming to the speech with the express purpose of protesting, they assumed the risk of provoking others. If it is true that Mr. Trump and the Campaign knew—based on past isolated incidents—that violence was possible (and they did not), then the protesters who held up signs depicting Mr. Trump as a pig with the admitted purpose of protesting his speech knew there was a possibility of violence. They thus cannot recover. Hibbs v. Brown Hotel Co., 302 S.W.2d 127, 128 (Ky. 1957); Kelly v. Forester, 311 S.W.2d 547, 549–50 (Ky. 1958).
CONCLUSION The Court should dismiss Plaintiffs’ Complaint as to Mr. Trump and the Campaign for failure to state a claim upon which relief can be granted.
Respectfully submitted, LANDRUM & SHOUSE /s/ R. Kent Westberry R. Kent Westberry LANDRUM & SHOUSE, LLP 220 W. Main St., Ste. 1900 Louisville, KY 40202-1395 Ph: (502) 589-7616 Fx: (502) 589-2119 19

Case 3:16-cv-00247-DJH-HBB Document 9-1 Filed 05/20/16 Page 20 of 20 PageID #: 69 kwestberry@landrumshouse.com COUNSEL FOR DEFENDANT Donald J. Trump for President, Inc. and Donald J. Trump, Individually
20

Case 3:16-cv-00247-DJH-HBB Document 9-2 Filed 05/20/16 Page 1 of 1 PageID #: 70

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

KASHIYA NWANGUMA, ET AL.

CASE NO.: 3:16-cv-247-DJH

PLAINTIFFS,

v.

DONALD J. TRUMP, ET AL.

DEFENDANTS.

Filed Electronically

PROPOSED ORDER

This matter having come before the Court on the Motion of Defendants Donald J. Trump,

individually and Donald J. Trump for President, Inc. to dismiss the Complaint filed by Plaintiffs

Kashiya Nwanguma, Molly Shah, and Henry Brousseau as to these Defendants on March 31, 2016,

and the Court being otherwise sufficiently advised,

IT IS HEREBY ORDERED that the Complaint dated March 31, 2016 is hereby

DISMISSED as to Mr. Trump and Donald Trump for President, Inc. with prejudice.

 
 Case 3:16-cv-00247-DJH-HBB Document 10 Filed 05/20/16 Page 1 of 2 PageID #: 71

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

KASHIYA NGWANGUMA, et al.

)

)

Plaintiffs

)

)

v.

)

)

DONALD J. TRUMP, et al.

)

)

Defendants

)

____________________________________)

CASE NO. 3:16cv-247-DJH Electronically filed

MOTION TO DISMISS

Pursuant to Fed. R. Civ. P. 12(b)(6), the Defendant, Alvin Bamberger, moves to

dismiss the complaint for failure to state a claim upon which relief can be granted.

Defendant has filed his supporting memorandum and tendered his proposed order.

Respectfully submitted,

/s/ Stephen B. Pence STEPHEN B. PENCE PENCE & WHETZEL, PLLC 9300 Shelbyville Road, Suite 1205 Louisville, KY 40223 (502) 736-6200 steve@pencelegal.com
Counsel for Defendant

Case 3:16-cv-00247-DJH-HBB Document 10 Filed 05/20/16 Page 2 of 2 PageID #: 72
CERTIFICATE OF SERVICE I certify that, on May 20, 2016, I electronically filed this document with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to the following: Daniel J. Canon David N. Ward Gregory A. Belzley Camille Bathurst R. Kent Westberry
I further certify that, on May 20, 2016, I served this document upon the pro se defendant, by mailing a copy, first-class postage prepaid, to: Matthew Warren Heimbach 222 Mable Street, Apt. 2 Paoli, IN 47454
/s/ Stephen B. Pence STEPHEN B. PENCE PENCE & WHETZEL, PLLC 9300 Shelbyville Road, Suite 1205 Louisville, KY 40223 (502) 736-6200 steve@pencelegal.com Counsel for Defendant
2

Case 3:16-cv-00247-DJH-HBB Document 10-1 Filed 05/20/16 Page 1 of 7 PageID #: 73

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

KASHIYA NWANGUMA, et al.

)

)

Plaintiffs

)

)

v.

)

)

DONALD J. TRUMP, et al.

)

)

Defendants

)

____________________________________)

CASE NO. 3:16cv-247-DJH Electronically filed

MEMORANDUM IN SUPPORT OF DEFENDANT ALVIN BAMBERGER’S MOTION TO DISMISS

The Defendant, Alvin Bamberger (Bamberger), seeks dismissal of Plaintiffs’

complaint, under Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief

can be granted. Specifically, in their 125-paragraph complaint, two of the three Plaintiffs

say nothing about Bamberger or his actions; the third says no more than that he pushed

her — without causing physical injury — as she exited the scene. Because this is wholly

inadequate to state a plausible claim against Bamberger, the Court should grant his

motion to dismiss.

STATEMENT OF MATERIAL FACTS

Much of the complaint, while making for provocative reading, has nothing to do

with Bamberger. It describes how: the three Plaintiffs, Kashiya Nwanguma

(Nwanguma), Molly Shah (Shah), and Henry Brousseau (Brousseau), attended a Donald

Trump (Trump) rally in Louisville for the purpose of protesting Trump’s presidential

candidacy; protesters became vocal during Trump’s speech and began pushing and

shoving their way towards the stage; Trump incited his supporters, and said of the

Case 3:16-cv-00247-DJH-HBB Document 10-1 Filed 05/20/16 Page 2 of 7 PageID #: 74
protesters, “Get them out of here”; and the Plaintiffs were shoved, struck, or intimidated as they exited the rally. [See generally R. 1-1: Complaint, ¶¶ 29-83.]
Only a handful of factual allegations have anything to do with Bamberger. Shah alleges nothing involving him, and does not claim to have interacted with him. [See R. 11: Complaint, ¶¶ 51-60 (Shah factual allegations).] Brousseau alleges nothing involving Bamberger, and does not claim to have interacted with him. [See R. 1-1: Complaint, ¶¶ 61-65 (Brousseau factual allegations).] Implicit in their non-interaction with Bamberger, neither Shah nor Brousseau allege to have suffered any injury from Bamberger’s conduct.
Nwanguma claims an interaction with Bamberger. She says that Bamberger is a 75-year old, Caucasian male, Trump supporter from Ohio, who wore KWVA (Korean War Veterans Association) apparel to the Trump rally. [R. 1-1: Complaint, ¶¶ 11-13. 74.] She says that numerous unnamed protesters “violently assaulted” her, and subjected her to physical force to remove her from the rally. [R. 1-1: Complaint, ¶¶ 46-47.] As for Bamberger specifically, Nwanguma says only that he: was one of the two “most aggressive” assaulters; repeatedly “shoved” her while she exited the rally; and later explained in a letter that he regretted pushing a young woman (presumably Nwanguma) down an aisle towards the exit (conduct that he attributed to his mental state after being knocked to the ground himself, and being caught between a group of white supremacists and Black Lives Matters protesters). [R. 1-1: Complaint, ¶¶ 48, 73, 75-79.]
Significantly, neither the Nwanguma nor Bamberger factual sections contain any allegation of physical or emotional injury. [See R. 1-1: Complaint, ¶¶ 36-50 (Nwanguma factual allegations, ¶¶ 73-79 (Bamberger factual allegations).] And, while the complaint’s “causes of action” section contains rote allegations of generic injury from
2

Case 3:16-cv-00247-DJH-HBB Document 10-1 Filed 05/20/16 Page 3 of 7 PageID #: 75
assault and battery, that section claims injury to all Plaintiffs caused by all Defendants. [See R. 1-1: Complaint, ¶¶ 98, 101.] In other words, it contains no allegation that Nwanguma suffered injury from Bamberger’s conduct. [Id.] Rather, it merely incorporates facts alleged elsewhere — and those facts allege no physical or emotional injury to Nwanguma, much less that Bamberger caused injury to Nwanguma. [See R. 11: Complaint, ¶¶ 99, 102.]
ARGUMENT I. FED. R. CIV. P. 12(b)(6) STANDARDS.
To survive Rule 12(b)(6) dismissal, the Plaintiffs must allege facts that, accepted as true, are sufficient to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For purposes of Bamberger’s motion, this Court must of course accept as true all well-pleaded facts alleged, Gunasekera v. Irwin, 551 F.3d 461, 467 (6th Cir. 2009), but the complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. See also Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015) (case should be dismissed if complaint fails to state sufficient facts to establish claim). II. THE COMPLAINT FAILS TO ASSERT PLAUSIBLE CLAIMS AGAINST
BAMBERGER. The complaint asserts six causes of action: battery [R. 1-1: Complaint, ¶¶ 9698]; assault [id., ¶¶ 99-101]; incitement [id., ¶¶ 102-06]; agency or vicarious liability [id., ¶¶ 107-15]; negligence, gross negligence and recklessness [id., ¶¶ 116-23]; and punitive
3

Case 3:16-cv-00247-DJH-HBB Document 10-1 Filed 05/20/16 Page 4 of 7 PageID #: 76
damages [id., ¶¶ 124-25]. Three of the six — incitement, agency/vicarious liability, and negligence/gross negligence/recklessness — seek to impose liability against Trump for the acts of his supporters. [See id., ¶¶102-23.] As such, they do not even purport to state claims against Bamberger. That leaves three claims against Bamberger: battery; assault; and punitive damages. For the following reasons, the complaint fails to assert plausible claims as to each.
A. “Punitve Damages” is Not a Cognizable Cause of Action. The complaint asserts a free-standing claim for “punitive damages.” But punitive damages are not really a cause of action; they are an element of relief awarded to successful litigants in some tort cases. See, e.g., Kroger Co. v. Willgruber, 920 S.W.2d 61, 68 (Ky. 1996) (discussing when punitive damages are appropriate as an element of damages). Thus, while these Plaintiffs, like any others, might be entitled to an award of punitive damages if they prevail on certain tort claims, it is those tort claims — such as the assault and battery claims asserted here — that gives rise to any punitive damages award. See, e.g., Shields Adm’rs v. Rowland, 151 S.W. 408 (Ky. 1912). Punitive damages simply does not exist as an independent cause of action.1 B. Shah and Brousseau Have Not Asserted Any Facts Sufficient to State
a Claim Against Bamberger. Neither Shah nor Brousseau allege anything involving Bamberger. They do not allege that he threatened them, nor touched them, or caused them any injury. [See R. 1-1: Complaint, ¶¶ 51-60 (Shah factual allegations); ¶¶ 61-65 (Brousseau factual allegations).] Without some allegation that Bamberger did something to them that caused harm, they
1 Even then, an assault victim is entitled to punitive damages only by pleading and proving malice, an element missing from the factual allegations of the complaint. See Hensley v. Paul Miller Ford, Inc., 508 S.W.2d 759 (Ky. 1974).
4

Case 3:16-cv-00247-DJH-HBB Document 10-1 Filed 05/20/16 Page 5 of 7 PageID #: 77
have not stated any plausible claim for relief. Twombly, 550 U.S. at 570 (2007); Iqbal, 556 U.S. at 678.
C. Because Nwanguma Has Not Alleged That Bamberger Caused Her Any Injury, and Does Not Seek Nominal Damages, She Has Not Asserted Plausible Claims for Assault or Battery.
Nwanguma is the only Plaintiff to allege any wrongdoing by Bamberger. But even her allegations are perfunctory, and entirely inadequate to state a plausible claim. The only fact she alleges is that Bamberger “shoved” and “struck” her, or “pushed” her up the aisle towards the exit.2 [R. 1-1: Complaint, ¶¶ 73-76.] She does not allege that Bamberger threatened her in any; she does not allege that Bamberger’s conduct harmed her in any way.
“Assault is a tort which … requires the threat of unwanted touching …” Banks v. Fritsch, 39 S.W.3d 474, 480 (Ky App. 2001). Because Nwanguma has not pled any such threat — that is, because her complaint fails to allege facts sufficient to state a key element of the tort, — she has failed to make a plausible claim of assault. Twombly, 550 U.S. at 570 (2007); Iqbal, 556 U.S. at 678.
Nwanguma’s assault and battery claims suffer from another defect: her failure to allege any injury. The factual allegations of her complaint, after all, say nothing about any emotional or physical harm from any source, and certainly say nothing about emotional or physical harm that Bamberger caused. To be sure, an assault and battery victim who is unable to prove damages can recover nominal damages. Vitale v. Henchey, 24 S.W.3d 651, 659 (Ky. 2000). Here, because Nwanguma does not allege — and thus
2 She also asserts, in conclusory language, that Bamberger “assaulted” her. [R. 1-1: Complaint, ¶ 48.] But a “pleading must go beyond ‘labels and conclusions’ or a mere ‘formulaic recitation of the elements of a cause of action.’” SFS Check, LLC v. First Bank of Delaware, 774 F.3d 351, 355 (6th Cir. 2014) (quoting Twombly, 550 U.S. at 555). Simply put, “’naked assertions devoid of further factual enhancement’ contribute nothing to the sufficiency of the complaint.” 16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 506 (6th Cir. 2013) (quoting Iqbal, 556 U.S. at 678) (emphasis added).
5

Case 3:16-cv-00247-DJH-HBB Document 10-1 Filed 05/20/16 Page 6 of 7 PageID #: 78
cannot prove — actual damages, she is limited to an award of nominal damages. But she fails to seek nominal damages, the only relief to which she would be entitled if she prevailed. [See R. 1-1: Complaint, Demand for Relief A-E.] In other words, Nwanguma seeks relief that she cannot plausibly obtain given the facts alleged in her complaint, and fails to seek the only relief that her complaint might warrant.
CONCLUSION For all these reasons, the Plaintiffs’ complaint fails to plausibly assert claims against Bamberger. The Court should therefore grant Bamberger’s motion to dismiss, under Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted.
Respectfully submitted,
/s/ Stephen B. Pence STEPHEN B. PENCE PENCE & WHETZEL, PLLC 9300 Shelbyville Road, Suite 1205 Louisville, KY 40223 (502) 736-6200 steve@pencelegal.com Counsel for Defendant
6

Case 3:16-cv-00247-DJH-HBB Document 10-1 Filed 05/20/16 Page 7 of 7 PageID #: 79
CERTIFICATE OF SERVICE I certify that, on May 20, 2016, I electronically filed this document with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to the following: Daniel J. Canon David N. Ward Gregory A. Belzley Camille Bathurst R. Kent Westberry
I further certify that, on May 20, 2016, I served this document upon the pro se defendant, by mailing a copy, first-class postage prepaid, to: Matthew Warren Heimbach 222 Mable Street, Apt. 2 Paoli, IN 47454
/s/ Stephen B. Pence STEPHEN B. PENCE PENCE & WHETZEL, PLLC 9300 Shelbyville Road, Suite 1205 Louisville, KY 40223 (502) 736-6200 steve@pencelegal.com Counsel for Defendant
7

Case 3:16-cv-00247-DJH-HBB Document 10-2 Filed 05/20/16 Page 1 of 1 PageID #: 80

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

KASHIYA NGWANGUMA, et al.

)

)

Plaintiffs

)

)

v.

)

)

DONALD J. TRUMP, et al.

)

)

Defendants

)

____________________________________)

CASE NO. 3:16cv-247-DJH Electronically filed

ORDER

Motion having been made, and the Court having considered counsel’s arguments

and having been otherwise sufficiently advised,

IT IS ORDERED that Defendant Alvin Bamberger’s motion to dismiss the

complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which

relief can be granted, be and hereby is, GRANTED.

The complaint against Alvin Bamberger hereby is DISMISSED WITH

PREJUDICE. This is a final and appealable order and there is no just cause for delay.

 
 Case: 3:16-cv-247 As of: 05/26/2017 02:24 PM EDT 1 of 8
CASREF,SUBDJH
U.S. District Court Western District of Kentucky (Louisville) CIVIL DOCKET FOR CASE #: 3:16−cv−00247−DJH−HBB

Nwanguma et al v. Trump et al Assigned to: Judge David J. Hale Referred to: Magistrate Judge H. Brent Brennenstuhl Case in other court: Jefferson County Circuit Court, 16−01504 Cause: 28:1441 Petition for Removal− Account Receivable
Plaintiff

Date Filed: 04/29/2016 Jury Demand: Defendant Nature of Suit: 320 Assault Libel & Slander Jurisdiction: Diversity

Kashiya Nwanguma

represented by Camille A. Bathurst Belzley Bathurst Attorneys P.O. Box 278 Prospect, KY 40059 502−292−2452 Email: camillebathurst@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Canon Clay Daniel Walton Adams PLC 462 South Fourth Street, Suite 101 Louisville, KY 40202 502−561−2005 Fax: 502−589−5500 Email: dan.canon@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David N. Ward Clay Daniel Walton Adams PLC 462 South Fourth Street, Suite 101 Louisville, KY 40202 502−561−2005 Fax: 502−426−6772 Email: david@justiceky.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory A. Belzley Belzley Bathurst Attorneys P.O. Box 278 Prospect, KY 40059 502−292−2452 Email: gbelzley@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Molly Shah

represented by Camille A. Bathurst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David N. Ward

Case: 3:16-cv-247 As of: 05/26/2017 02:24 PM EDT 2 of 8

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory A. Belzley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Henry Brousseau

represented by Camille A. Bathurst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David N. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory A. Belzley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump

represented by Andrew J. Bentz Jones Day − Washington 51 Louisiana Avenue, NW Washington, DC 20001−2113 202−879−3849 Fax: 202−626−1700 Email: abentz@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony J. Dick Jones Day − Washington 51 Louisiana Avenue, NW Washington, DC 20001−2113 202−879−7679 Fax: 202−626−1700 Email: ajdick@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Carvin Jones Day − Washington 51 Louisiana Avenue, NW Washington, DC 20001−2113 202−879−7643 Fax: 202−626−1700 Email: macarvin@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:16-cv-247 As of: 05/26/2017 02:24 PM EDT 3 of 8

R. Kent Westberry Landrum & Shouse, LLP 220 W. Main Street, Suite 1900 Louisville, KY 40202 502−589−7616 Fax: 502−589−2119 Email: kwestberry@landrumshouse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Donald J. Trump for President, Inc.

represented by Andrew J. Bentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony J. Dick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A. Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Kent Westberry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Matthew John Heimbach also known as Matthew Warren Heimbach

represented by R. Kent Westberry (See above for address) ATTORNEY TO BE NOTICED

Defendant Alvin Bamberger

represented by Stephen Beville Pence Pence & Whetzell, PLLC 9300 Shelbyville Road, Suite 1205 Louisville, KY 40222 502−736−6200 Fax: 502−736−6205 Email: steve@pencelegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Unknown Defendant

Cross Claimant Alvin Bamberger

represented by Stephen Beville Pence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Cross Defendant Donald J. Trump for President, Inc.

represented by Andrew J. Bentz (See above for address)

Case: 3:16-cv-247 As of: 05/26/2017 02:24 PM EDT 4 of 8

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony J. Dick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A. Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Kent Westberry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant Donald J. Trump

represented by Andrew J. Bentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony J. Dick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A. Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Kent Westberry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Claimant Matthew John Heimbach

represented by Matthew John Heimbach 619 North Gospel Street Lot 3 Paoli, IN 47454 PRO SE

R. Kent Westberry (See above for address) ATTORNEY TO BE NOTICED

V. Cross Defendant Donald J. Trump for President, Inc.

represented by Andrew J. Bentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony J. Dick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:16-cv-247 As of: 05/26/2017 02:24 PM EDT 5 of 8

Michael A. Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Kent Westberry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant Donald J. Trump

represented by Andrew J. Bentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony J. Dick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A. Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Kent Westberry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/29/2016
04/29/2016 04/29/2016 05/02/2016 05/02/2016 05/02/2016 05/10/2016 05/12/2016

# Docket Text
1 NOTICE OF REMOVAL by Donald J. Trump for President, Inc., Alvin Bamberger, Donald J. Trump from Jefferson County Circuit Court, case number 16−CI−01504. ( Filing fee Paid $ 400, Receipt # 644−2211020 ), filed by Donald J. Trump for President, Inc., Alvin Bamberger, Donald J. Trump. (Attachments: # 1 Exhibit A − Complaint, # 2 Exhibit B. − CourtNet Docket Sheet dated 4/29/2016) (JSS) (Additional attachment(s) added on 5/2/2016: # 3 Cover Sheet) (JSS). (Additional attachment(s) added on 5/3/2016: # 4 Cover Sheet) (JAC). (Entered: 04/29/2016)
2 Case Assignment (Random Selection): Case Assigned to Honorable Judge David J. Hale. Magistrate designation: Magistrate Judge Colin H. Lindsay. (JSS) (Entered: 04/29/2016)
3 NOTICE to Jefferson County Circuit Court and Counsel 1 Notice of Removal. (JSS) (Entered: 04/29/2016)
4 NOTICE OF FILING by Donald J. Trump for President, Inc. re 1 Notice of Removal, (Attachments: # 1 Cover Sheet) (Westberry, R.) (Entered: 05/02/2016)
5 NOTICE OF FILING by Donald J. Trump for President, Inc. re 1 Notice of Removal, (Attachments: # 1 Supplement Donald Trump for President, Inc. Corporate Disclosure) (Westberry, R.) (Entered: 05/02/2016)
Corporate Disclosure Statement by Donald J. Trump for President, Inc. (NO PDF ATTACHED. SEE DN 5 FOR PDF.) (JAC) (Entered: 05/03/2016)
6 Proposed Agreed Order/Stipulation by Donald J. Trump for President, Inc., Donald J. Trump. (Westberry, R.) (Entered: 05/10/2016)
7 ORDER by Judge David J. Hale. Defendants Donald J. Trump; Donald J. Trump for President, Inc.; and Alvin Bamberger to answer or otherwise respond to plaintiffs' complaint by 5/20/2016. cc:counsel (JAC) (Entered: 05/12/2016)

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05/17/2016 05/20/2016
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8 NOTICE OF CONSENT TO REMOVAL by Matthew John Heimbach. (JAC) (Entered: 05/17/2016)
9 MOTION to Dismiss by Defendants Donald J. Trump for President, Inc., Donald J. Trump Responses due by 6/13/2016 (Attachments: # 1 Memorandum in Support Brief in Support of Motion to Dismiss, # 2 Proposed Order) (Westberry, R.) (Entered: 05/20/2016)
10 MOTION to Dismiss by Defendant Alvin Bamberger Responses due by 6/13/2016 (Attachments: # 1 Memorandum in Support, # 2 Proposed Order) (Pence, Stephen) (Entered: 05/20/2016)
11 MOTION to Strike Portions of Verified Complaint (DN 1 ), by Defendant Matthew John Heimbach. Responses due by 6/13/2016. (Attachments: # 1 Proposed Order) (JAC) (Entered: 05/23/2016)
12 Unopposed MOTION for Extension of Time to File Response/Reply to Motion to Dismiss by Plaintiff Kashiya Nwanguma Responses due by 6/20/2016 (Attachments: # 1 Proposed Order) (Canon, Daniel) (Entered: 06/09/2016)
13 RESPONSE to Motion re 11 MOTION to Strike Portions of Verified Complaint (DN 1 ) filed by Henry Brousseau, Kashiya Nwanguma, Molly Shah. Replies due by 6/30/2016. (Attachments: # 1 Exhibit Ex. 1 (Pearson v. Countrywide), # 2 Exhibit Ex. 2 (Makaeff v. Trump Univ.), # 3 Proposed Order) (Ward, David) (Entered: 06/13/2016)
14 ORDER by Judge David J. Hale granting 12 Unopposed Motion for Extension of Time to File Response. Plaintiffs to have up to and including 6/27/16 to file responses to Defendants' motions to dismiss (DN 9 and 10 ). cc: Counsel(JAC) (Entered: 06/15/2016)
15 RESPONSE to Motion re 10 MOTION to Dismiss filed by Henry Brousseau, Kashiya Nwanguma, Molly Shah. Replies due by 7/14/2016. (Attachments: # 1 Exhibit Blaine v. Bolton, # 2 Proposed Order) (Belzley, Gregory) (Entered: 06/27/2016)
16 RESPONSE to Motion re 9 MOTION to Dismiss filed by Henry Brousseau, Kashiya Nwanguma, Molly Shah. Replies due by 7/14/2016. (Attachments: # 1 Exhibit 1 − Decl. of Counsel, # 2 Exhibit 2 − Video Index, # 3 Exhibit 3 − Short Form Lease, # 4 Proposed Order) (Canon, Daniel) (Entered: 06/27/2016)
17 REPLY to Response to Motion re 11 MOTION to Strike Portions of Verified Complaint (DN 1 ) filed by Matthew John Heimbach. (JAC) (Entered: 06/28/2016)
18 Proposed Agreed Order/Stipulation re 16 , 15 by Alvin Bamberger, Donald J. Trump for President, Inc., Donald J. Trump. (Westberry, R.) (Entered: 06/28/2016)
19 NOTICE OF FILING by Alvin Bamberger, Donald J. Trump for President, Inc., Donald J. Trump (Attachments: # 1 Supplement Amended Certificate of Service) (Westberry, R.) (Entered: 06/29/2016)
20 AGREED ORDER by Judge David J. Hale. Reply Briefs due by 7/28/2016. cc:counsel (JAC) (Entered: 06/30/2016)
21 CORRECTED REPLY to Response to Motion re 11 MOTION to Strike Portions of Verified Complaint (DN 1 ) filed by Matthew John Heimbach. (JAC) (Entered: 07/05/2016)
22 REPLY to Response to Motion re 10 MOTION to Dismiss filed by Alvin Bamberger. (Pence, Stephen) (Entered: 07/21/2016)
23 REPLY to Response to Motion re 9 MOTION to Dismiss filed by Donald J. Trump for President, Inc., Donald J. Trump. (Westberry, R.) (Entered: 07/28/2016)
24 MOTION for Hearing by Plaintiffs Henry Brousseau, Kashiya Nwanguma, Molly Shah Responses due by 12/9/2016 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 11/15/2016)
25 RESPONSE to Motion re 24 MOTION for Hearing filed by Donald J. Trump for President, Inc., Donald J. Trump. (Westberry, R.) (Entered: 12/09/2016)

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01/12/2017 03/31/2017
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04/20/2017
04/21/2017

26 ORDER OF RECUSAL by Magistrate Judge Colin Lindsay. cc: counsel, DJH−CM (JAC) (Entered: 01/12/2017)
27 MEMORANDUM OPINION AND ORDER by Judge David J. Hale. Motion to dismiss (DN 9 ) is granted in part and denied in part as set forth. Motion to dismiss (DN 10 ) is granted in part and denied in part as set forth. Motion to strike (DN 11 ) is denied. Motion for hearing (DN 24 ) is denied as moot. Matter referred to Magistrate Judge H. Brent Brennenstuhl for litigation planning, scheduling, nondispositive matters, discovery, and settlement. cc: Counsel, HBB−CM(JAC) (Entered: 03/31/2017)
28 ORDER by Magistrate Judge H. Brent Brennenstuhl (EBOC). Telephonic Rule 16 Scheduling Conference set for 5/18/2017 09:30 AM CDT before Magistrate Judge H. Brent Brennenstuhl. Parties to comply as set forth. cc:counsel (JAC) (Entered: 04/06/2017)
29 ANSWER to Complaint by Donald J. Trump for President, Inc., Donald J. Trump. (Westberry, R.) (Entered: 04/14/2017)
30 ANSWER to Complaint , CROSSCLAIM against Donald J. Trump for President, Inc. by Alvin Bamberger. (Pence, Stephen) (Entered: 04/14/2017)
31 NOTICE of Change of Address by Matthew John Heimbach (JAC) (Entered: 04/17/2017)
32 ANSWER to Complaint with Jury Demand, CROSSCLAIM against Donald J. Trump for President, Inc., Donald J. Trump by Matthew John Heimbach. (Attachments: # 1 Attachment) (JAC) (Entered: 04/17/2017)
33 MOTION for Andrew J. Bentz to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−2424516.by Cross Defendants Donald J. Trump for President, Inc., Donald J. Trump for President, Inc., Donald J. Trump, Donald J. Trump, Defendants Donald J. Trump for President, Inc., Donald J. Trump (Attachments: # 1 Exhibit A − Declaration, # 2 Exhibit B − Certificate of Good Standing, # 3 Proposed Order) (Westberry, R.) (Entered: 04/20/2017)
34 MOTION for Michael A. Carvin to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−2424517.by Cross Defendants Donald J. Trump for President, Inc., Donald J. Trump for President, Inc., Donald J. Trump, Donald J. Trump, Defendants Donald J. Trump for President, Inc., Donald J. Trump (Attachments: # 1 Exhibit A − Declaration, # 2 Exhibit B − Certificate of Good Standing, # 3 Proposed Order) (Westberry, R.) (Entered: 04/20/2017)
35 MOTION for Anthony J. Dick to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−2424520.by Cross Defendants Donald J. Trump for President, Inc., Donald J. Trump for President, Inc., Donald J. Trump, Donald J. Trump, Defendants Donald J. Trump for President, Inc., Donald J. Trump (Attachments: # 1 Exhibit A − Declaration, # 2 Exhibit B − Certificate of Good Standing, # 3 Proposed Order) (Westberry, R.) (Entered: 04/20/2017)
36 MOTION for Leave to Certify this Court's Order for Interlocutory Appeal and Stay Further Proceedings, MOTION for Reconsideration re 27 Order on Motion for Hearing,, Order on Motion to Dismiss,,,, Order on Motion to Strike, by Cross Defendants Donald J. Trump for President, Inc., Donald J. Trump for President, Inc., Donald J. Trump, Donald J. Trump, Defendants Donald J. Trump for President, Inc., Donald J. Trump (Attachments: # 1 Memorandum in Support, # 2 Proposed Order) (Westberry, R.) (Entered: 04/20/2017)
37 TEXT ORDER signed by Judge David J. Hale on 4/21/2017 granting 33 Motion for Andrew J. Bentz to Appear Pro Hac Vice; granting 34 Motion for Michael A. Carvin to Appear Pro Hac Vice; granting 35 Motion for Anthony J. Dick to Appear Pro Hac Vice.

This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.

cc: Counsel(NWT) (Entered: 04/21/2017)

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04/24/2017

38 TEXT ORDER by Magistrate Judge H. Brent Brennenstuhl on 4/24/2017. Upon request of counsel for the parties; IT IS ORDERED a Telephone Conference is set for 5/2/2017 at 9:30 AM, CDT, before Magistrate Judge H. Brent Brennenstuhl. The Court will initiate the call.

This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.

05/02/2017

cc: Counsel (KLL) (Entered: 04/24/2017)
39 TEXT ORDER by Magistrate Judge H. Brent Brennenstuhl on 5/2/2017. Due to the exigencies of the Court's calendar; IT IS ORDERED the Telephone Conference set for 5/2/2017 is REMANDED from the Court's calendar and RESCHEDULED to be conducted on 5/8/2017 at 1:30 PM, CDT. The Court will initiate the call.

This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.

05/05/2017 05/10/2017 05/10/2017 05/14/2017 05/16/2017 05/22/2017
05/22/2017 05/23/2017 05/26/2017

cc: Counsel (KLL) (Entered: 05/02/2017)
40 MOTION to Dismiss the Cross Claims of Alvin Bamberger and Matthew Heimbach by Cross Defendants Donald J. Trump for President, Inc., Donald J. Trump for President, Inc., Donald J. Trump, Donald J. Trump, Defendants Donald J. Trump for President, Inc., Donald J. Trump (Attachments: # 1 Memorandum in Support, # 2 Proposed Order) (Westberry, R.) (Entered: 05/05/2017)
41 ORDER by Magistrate Judge H. Brent Brennenstuhl. Telephonic Conference held 5/8/2017. Rule 16 Scheduling Conference to proceed as scheduled on 5/18/2017 9:30 AM CDT. cc: counsel (JAC) (Entered: 05/10/2017)
42 RESPONSE to Motion re 36 MOTION for Leave to Certify this Court's Order for Interlocutory Appeal and Stay Further Proceedings MOTION for Reconsideration re 27 Order on Motion for Hearing,, Order on Motion to Dismiss,,,, Order on Motion to Strike, filed by Henry Brousseau, Kashiya Nwanguma, Molly Shah. (Canon, Daniel) (Entered: 05/10/2017)
43 Proposed Pretrial Order by Molly Shah, Henry Brousseau, Kashiya Nwanguma by Molly Shah, Henry Brousseau, Kashiya Nwanguma. (Belzley, Gregory) (Entered: 05/14/2017)
44 Objection to 43 Proposed Pretrial Order filed by Donald J. Trump for President, Inc., Donald J. Trump. (Attachments: # 1 Exhibit Attachment A − Proposed Trial Plan, # 2 Exhibit Attachment B − Mark up of Defendants' proposal) (Westberry, R.) (Entered: 05/16/2017)
45 SCHEDULING ORDER by Magistrate Judge H. Brent Brennenstuhl. Telephonic Scheduling Conference held on 5/18/2017. Rule 26(a)(1) Disclosure due by 5/30/2017. Motion for Protective Order due by 7/17/2017. Response due 30 days following filing of motion. Expert Witness (Plaintiff) due by 12/1/2017. Expert Witness (Defendant) due by 2/9/2018. Amended Pleadings due by 8/8/2017. Joinder of Parties due by 8/8/2017. Discovery due by 6/1/2018. Dispositive and Daubert Motions due by 7/2/2018. Telephonic Status Conference set for 6/7/2018 09:30 AM CDT before Magistrate Judge H. Brent Brennenstuhl. cc:counsel (JAC) (Entered: 05/22/2017)
46 Objection to Magistrate Judge's Denial of Motion to Stay Discovery filed by Donald J. Trump for President, Inc., Matthew John Heimbach, Donald J. Trump. (Westberry, R.) Modified on 5/23/2017 edited docket text for clarification (JAC). (Entered: 05/22/2017)
47 REPLY to Response to Motion re 36 MOTION for Leave to Certify this Court's Order for Interlocutory Appeal and Stay Further Proceedings MOTION for Reconsideration re 27 Order on Motion for Hearing,, Order on Motion to Dismiss,,,, Order on Motion to Strike, filed by Donald J. Trump for President, Inc., Donald J. Trump. (Westberry, R.) (Entered: 05/23/2017)
48 NOTICE by Judge David J. Hale. cc: counsel (JAC) (Entered: 05/26/2017)