On Friday, attorneys for the Trump Campaign sent me an extraordinary email regarding a lawsuit I have been engaged in since 2018, stemming from a 2015 attack by Trump Campaign staff at a non-Trump rally. In January, Judge Landya McCafferty ruled that there was sufficient evidence to proceed on all 15 counts brought upon XMark, the shell-company serving as a legal buffer between the Trump Campaign and Trump security staff.
Judge McCafferty opined, “Of Webber’s eighteen claims asserted in his second amended complaint, fifteen of them are brought against XMark. They include several state law claims, such as: Assault (Count I), Battery (Count II), Intentional Infliction of Emotional Distress (Count III), Negligence (Count IV), Negligent Hiring (Count V), Fraud (Count VI), and False Imprisonment (Count VII). Webber also asserts eight federal claims under 42 U.S.C. § 1983, including Unreasonable Seizure (Count VIII), Excessive Force (Count IX), two counts of Violation of the First Amendment (Counts X and XI), Negligent Hiring and Retention (Count XII), Negligent Supervision (Count XIII), False Imprisonment (Count XV), and False Arrest (Count XVI)… XMark’s motion to dismiss (doc. no. 96) is denied.”
A variety of counts were allowed to proceed against the Campaign and Campaign staffers such as NH State Rep Fred Doucette, such as Counts of assault, battery and false imprisonment, as well as several civil rights claims.
On March 27th, The Trump Campaign’s attorneys failed to file an “Answer” (a final response) in response to a Judge’s order. The deadline for that Answer was over a week late. Attorney Bryan Gould (for the Trump Campaign) blamed Covid-19 for the failure.
Attorney Gould wrote:
Defendants Donald J. Trump for President, Inc., Edward Deck, XMark, LLC, and Rep. Fred Doucette (collectively the “Campaign Defendants”), hereby move the court to extend the deadline to respond to the Plaintiff’s Second Amended Complaint to April 8, 2020. The Plaintiff has not assented to or expressed an objection to the relief sought in this motion, which rests on the following grounds.
1. Following the Court’s orders on multiple defendants’ motions to dismiss, the Campaign Defendants are required to file an answer to the remaining claims in Plaintiff’s Second Amended Complaint (Doc. No. 75).
2. Due to a significant disruption in the Campaign Defendants’ counsel’s law firm operations because of the rapid onset of the COVID-19 pandemic, and the attendant delays as the firm and its attorneys have transitioned to a remote workplace, the Campaign Defendants require additional time to finalize their answer to the Plaintiff’s extremely detailed complaint.
3. The Campaign Defendants submit that due to the unprecedented circumstances of the COVID-19 pandemic, good cause exists to extend their answer deadline. Moreover, the requested extension will not prejudice the parties or otherwise affect the trial schedule, as the Court has not yet issued a discovery plan or set a trial date and other case deadlines.
4. Accordingly, the Campaign Defendants respectfully request that their deadline to file an answer to Plaintiff’s Second Amended Complaint be extended to Wednesday, April 8, 2020.
In response, I filed a request for entry of default, writing:
To the Clerk of the United States District Court for the New Hampshire District of New Hampshire.
Plaintiff, Rod Webber hereby requests pursuant to Rule 55a of the Federal Rules of Civil Procedure that the Clerk enter the default of Campaign Defendants, The Trump Campaign, Edward Deck, Fred Doucette and XMark for failure to answer or otherwise defend against this action in a timely manner. The applicable time limit to answer or otherwise respond under Rule 12(a)1C of Federal Rules of Civil Procedure expired on March 27th, 2020, (ten days ago).
In H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, the United States Court of Appeals for the District of Columbia Circuit explained the rationale for default judgments as such: “the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights… the possibility of a default is a deterrent to those parties who choose delay as part of their litigative strategy.”
“The court may enter default judgment when a defendant fails to respond to a complaint and court orders and fails to participate in the litigation or cooperate in good faith with the plaintiff. Tara Prods., Inc. v. Hollywood Gadgets, Inc., 449 F. App’x 908, 910-12 (11th Cir. 2011).
Attorney Gould argues that due to the COVID-19 pandemic, “the attendant delays as the firm and its attorneys have transitioned to a remote workplace, the Campaign Defendants require additional time to finalize their answer to the Plaintiff’s extremely detailed complaint.” However, the court has been open for electronic filing, and New Hampshire Governor Sununu did not even suggest a stay-at-home order to begin until March 27th, 2020 at midnight, (coincidentally, the deadline to answer or otherwise respond to the court.) In fact, on March 26th, at a press conference, Governor Sununu stated, “This is not a shelter in place. We are not closing down transportation. I am not closing our borders, and no one will be prevented from leaving their home.” https://www.youtube.com/watch?v=LX76Gu9tyjA&feature=emb_logo
Moreover, no reasonable person would believe that the switch from Mr. Gould writing briefs in his New Hampshire office to writing briefs on a laptop in his New Hampshire home would cause an attorney of Mr. Gould’s competence, experience and caliper, (hired by the campaign for the President of the United States of America) to simply forget to file such an important brief for over a week. Surely, this is a strategic move. Further, the COVID-19 outbreak assuredly would have been avoided if Donald J. Trump, (the head of The Trump Campaign), had not behaved with abject negligence, ignoring health officials, and claiming on multiple occasions that it was a “hoax” that would just go away, stating, “it’s like a miracle.” Director of the National Institute of Allergy and Infectious Diseases (NIAID), Anthony S. Fauci, MD, warned Mr. Trump of a coming pandemic in 2017, and was ignored. https://gumc.georgetown.edu/gumc-stories/global-health-experts-advise-advance-planning-for-inevitable-pandemic/# The head of the Trump Campaign is liable for the outbreak that Gould cites as the reason for missing the deadline. Mr. Gould has no reason for the delay, since there was no shelter-in-place order, and was not prevented from going to the office in any way.
Accordingly, Defendants have not shown good cause for not filing an answer, and their argument for the delay does not hold water. Defendant is ten days late, this is not the initial stage of litigation, and default should be entered.
Pro Se Plaintiff, Roderick Webber
I understand that a request for default at this stage might be frowned upon by the court, but I filed this case on principle. That is how I will continue to operate. Frankly, the Trump Campaign and the others involved should be ashamed of themselves.
All 171 motions of the lawsuit as a whole can be viewed here: