The opinion of the court was delivered by: James E. Boasberg United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Jane Doe, a new part-time employee of Defendant New Leaf Brands, Inc., traveled from New York with some co-workers to staff a trade show in Washington, D.C. One night after dinner and drinks, she and the company's Chief Operating Officer, Defendant William Sipper, returned to his hotel room, ostensibly for him to book her travel to future shows. After she fell asleep on one of his beds, she alleges that she awoke to find him raping her. She then sued both Sipper and New Leaf in the present action. Arguing that the company is not vicariously liable for Sipper's conduct, New Leaf now moves to dismiss. As the Court agrees only in part with the company, it will deny the Motion as to one of Plaintiff's theories and permit the case to proceed on this basis against New Leaf.
According to Plaintiff's Complaint, which must be presumed true for purposes of this Motion, on September 17, 2010, she was offered a part-time position at New Leaf on an independent-contractor basis. Compl., ¶ 10. Until his resignation on December 31, 2010, Defendant William Sipper was the Chief Operating Officer of New Leaf. Id., ¶¶ 6, 46. On November 13-14, 2010, New Leaf participated in the Metropolitan Cooking and Entertainment Show in Washington, D.C. Id., ¶ 11. New Leaf asked Plaintiff to attend in order to help organize its booth and represent the company at the show from November 11-15. Id. On the evening of November 12, Plaintiff met Sipper and two other New Leaf co-workers for dinner at a restaurant. Id., ¶¶ 21-22. When the group arrived back at their hotel, Sipper, Plaintiff, and one of the co-workers had drinks at the hotel bar. Id., ¶ 23. Sipper and the co-worker discussed New Leaf's upcoming trade show in Las Vegas and answered Plaintiff's questions about the company. Id. At approximately 11:00 p.m., the co-worker left the hotel bar, while Sipper and Plaintiff remained and continued to discuss New Leaf and the upcoming trade shows in Las Vegas and Los Angeles. Id., ¶¶ 24-25.
Sipper asked Plaintiff whether she would like to attend the upcoming trade shows and then invited her up to his hotel room in order to book the travel on his laptop computer. Id., ¶ 25. He explained to Plaintiff that it would be difficult to do this the next day because they would be too busy with the show. Id. Plaintiff accepted his invitation, and they subsequently went up to Sipper's hotel room. Id., ¶¶ 25, 27. Plaintiff sat on one of the two double beds in the room while Sipper booked her travel. Id. An email confirmation sent to Plaintiff's email account confirmed that on November 12, 2010, Sipper booked Plaintiff's airline tickets from New York to Los Angeles and from New York to Las Vegas. Id., ¶ 29. While Sipper was reserving her tickets, Plaintiff explained that she needed to arrange a wake-up call for the following morning. Id., ¶ 28. Sipper responded that Plaintiff should not worry if she fell asleep on one of the beds because he would sleep in the other one. Id. He also assured Plaintiff that he would wake her up in time for the show the next morning. Id. Plaintiff ended up falling asleep while Sipper was still booking her travel. Id. She woke up later to find Sipper raping her. Id., ¶ 30. She tried to push him off, then immediately fled back to her hotel room, where she called her boyfriend and then 911 to report the rape. Id., ¶¶ 31-32, 35.
Plaintiff filed this suit on May 10, 2011. She asserted counts of battery, intentional infliction of emotional distress, and "reckless and willful disregard" against both Sipper and New Leaf. On June 29, New Leaf filed a Motion to Dismiss all of Plaintiff's claims.
Rule 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.
A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the complaint, see FED. R. CIV. P. 12(d), which includes statements adopted by reference as well as copies of written instruments joined as exhibits. FED. R. CIV. P. 10(c).
In moving to dismiss, New Leaf argues that it cannot be liable for Sipper's sexual assault. A company may be vicariously liable for the acts of its employees under the doctrine of respondeat superior. Penn Central Transportation Co. v. Reddick, 398 A.2d 27, 29 (D.C. 1979). This doctrine, however, does not automatically attribute any acts of an employee to his employer. Instead, as discussed below, either (1) the employee's acts must have taken place within the scope of his employment or (2) arguably, he must have used his apparent authority or have been aided by his agency relationship in accomplishing them. New Leaf here contends that neither circumstance is present.
Generally, in order for an employer to be held liable under the doctrine of respondeat superior, the employee's transgressing conduct must be within his scope of employment. In other words, "'the moment the agent turns aside from the business of the principal and commits an independent trespass, the principal is not liable. The agent is not then acting within the scope of his authority in the business of the principal, but in the furtherance of his own ends.'" Schecter v. Merchants Home Delivery, Inc., 892 A.2d 415, 427 (D.C. 2006) (quoting Axman v. Washington Gaslight Co., 38 App. D.C. 150, 158 (1912) (emphasis supplied by Schecter deleted)). When defining scope of employment, the District of Columbia follows the RESTATEMENT (SECOND) OF AGENCY (1958). See Council on American Islamic Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006) (citing Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346, 348 n.4 (D.C. 1987)). The RESTATEMENT explains:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. § 228, cited in Council on American Islamic Relations, 444 F.3d at 663. When evaluating scope of employment, "the test . . . is an objective one, based on all the facts and circumstances." Weinberg v. Johnson, 518 A.2d 985, 991 (D.C. 1986). Scope of employment is ordinarily a question for the jury, but it "becomes a question of law for the court . . . if there is not sufficient evidence from which a reasonable juror could conclude that the ...