S.Y. v. Best Western International, Inc. et al

Filing 63

ORDER denying 18 Motion to Dismiss; 20 Motion to Dismiss. Signed by Judge John E. Steele on 6/7/2021. (FWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
S. Y.,
Plaintiff,
v.

Case No:

2:20-cv-616-JES-MRM

BEST WESTERN INTERNATIONAL,
INC., R&M REAL ESTATE CO
INC DBA BEST WESTERN NAPLES
PLAZA HOTEL, and ROBERT
VOCISANO,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant
Best Western International, Inc.’s Motion to Dismiss Counts I – IV
of Plaintiff’s Complaint and Memorandum in Support (Doc. #18) filed
on October 2, 2020, and defendants R&M Real Estate Company, Inc.
and Robert Vocisano Co-Tr’s Motion to Dismiss with Prejudice
Plaintiff’s Complaint and Memorandum in Support (Doc. #20) filed
on October 13, 2020.

Plaintiff filed an Opposition (Doc. #37;

Doc. #38) to each motion on November 6, 2020, to which the
defendants filed a Reply (Doc. #48; Doc. #49) on November 19th and
November 26, 2020.
are denied.

For the reasons set forth below, the motions

I.
The origins of this case began on October 30, 2019, when
plaintiff and another alleged victim of sex trafficking filed a
case in the Circuit Court of the Twentieth Judicial Circuit in and
for Collier County, Florida.

See S.Y. et al v. Naples Hotel Co.

et al, Case No. 2:20-cv-118 (Doc. #1, p. 3).

On December 31, 2019,

the plaintiffs filed a First Amended Complaint which asserted ten
claims against over forty defendants.

Id. at (Doc. #1, pp. 2-4).

The case was removed to federal court in February 2020.
(Doc. #1).

Id. at

On April 15, 2020, the plaintiffs filed a Second

Amended Complaint.

Id. at (Doc. #85).

On August 5, 2020, the

undersigned denied various motions to dismiss, but determined
severance of the parties was appropriate.

S.Y. v. Naples Hotel

Co., 476 F. Supp. 3d 1251, 1258-59 (M.D. Fla. 2020).

Following

the Court’s severance order, plaintiff and the other alleged victim
filed

nearly

thirty

new

actions

against

various

defendants,

including this case.
The Complaint (Doc. #1) in this case was filed on August 19,
2020, and alleges that plaintiff S.Y., a resident of Collier
County, Florida, was a victim of continuous sex trafficking at a
certain Best Western Naples Plaza Hotel (the Best Western Hotel)
in Naples, Florida between 2013 and February 2016.
22-24.)

(Id. ¶¶ 2, 13,

The Complaint alleges that during this time period the

Best Western Hotel was owned and operated by defendants R&M Real

2

Estate Company, Inc. (R&M) and Robert Vocisano Co-Tr (Vocisano) as
a franchisee of defendant Best Western International, Inc. (Best
Western).

(Id. ¶¶ 25-28, 51.)

The Complaint alleges the following six claims: (1) violation
of the Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA), 18 U.S.C. § 1595; (2) violation of the Florida RICO
statute, § 772.104, Florida Statutes; (3) premise liability; (4)
negligent
rescue;

hiring,
and

(6)

supervision,
aiding

and

and

retention;

abetting,

coercion, and criminal enterprise.

(5)

negligent

harboring,

confining,

(Id. pp. 35-53.)

Counts One

through Four are asserted against each defendant, while Counts
Five and Six are asserted against R&M and Vocisano.

(Id.)

II.
The motions raise numerous arguments as to why the Complaint
as whole, and each individual claim, should be dismissed.

The

Court will address each of these arguments.
A. Shotgun Pleading
The Complaint identifies the defendants collectively as the
“Best Western Naples Plaza Hotel Defendants.”
introductory paragraph.)

(Doc. #1, p. 1

Both motions argue that because the

Complaint groups the defendants together, it should be dismissed
as a shotgun pleading.

(Doc. #18, p. 11; Doc. #20, p. 6.)

One way in which a complaint may constitute an impermissible
shotgun pleading is if it “assert[s] multiple claims against

3

multiple defendants without specifying which of the defendants are
responsible for which acts or omissions, or which of the defendants
the

claim

is

brought

against.”

Weiland

v.

Palm

Beach

Cty.

Sheriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015); see also
Barmapov v. Amuial, 986 F.3d 1321, 1324-25 (11th Cir. 2021).

Such

a pleading fails “to give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests,”
Weiland, 792 F.3d at 1323, and

violates the requirement that a

plaintiff provide “a short and plain statement of the claim,” Fed.
R. Civ. P. 8(a)(2).
The Complaint does indeed repeatedly refer to the defendants
collectively as the “Best Western Naples Plaza Hotel Defendants.”
The

failure

to

specify

a

particular

defendant

is

not

fatal,

however, when “[t]he complaint can be fairly read to aver that all
defendants are responsible for the alleged conduct.”
Chapman, 208 F.3d 940, 944 (11th Cir. 2000).

Kyle K. v.

The Complaint

typically (but not always) alleges that “each and every” such
defendant was involved in the activity described in the particular
paragraph of the Complaint.

A fair reading of the Complaint is

that each of these defendants was involved in the identified
conduct

attributed

Defendants.”
are

accurate,

to

the

“Best

Western

Naples

Plaza

Hotel

While defendants may disagree that such allegations
that

dispute

is

for

another

day.

The

group

allegations do not fail to state a claim, Auto. Alignment & Body

4

Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 732–
33 (11th Cir. 2020), and the Complaint does not constitute a
shotgun pleading. 1
B. Failure to State a Claim
The motions argue certain claims should be dismissed due to
plaintiff’s failure to state a claim upon which relief may be
granted.

Federal Rule of Civil Procedure 8(a)(2) requires that a

complaint contain a “short and plain statement of the claim showing

R&M and Vocisano also argue the Complaint is a shotgun
pleading because each count adopts allegations previously asserted
in the Complaint. (Doc. #20, p. 7.) The Court disagrees. While
each claim adopts allegations previously made in the Complaint,
the claims do not adopt all the allegations previously made. See
Weiland, 792 F.3d at 1321 (describing most common type of shotgun
pleading as “a complaint containing multiple counts where each
count adopts the allegations of all preceding counts, causing each
successive count to carry all that came before and the last count
to be a combination of the entire complaint”); Spigot, Inc. v.
Hoggatt, 2020 WL 108905, *1 (M.D. Fla. Jan. 9, 2020) (dismissing
complaint as shotgun pleading when each claim began by restating
and re-alleging “each and every foregoing paragraph” of the
complaint).
Additionally, Best Western argues the Complaint
contains “conclusory, vague, and immaterial facts about sex
trafficking and why it is bad.” (Doc. #18, p. 10.) However, the
vast majority of the allegations at issue address sex trafficking’s
prevalence at hotels, the defendants’ knowledge thereof, and the
sex trafficking of plaintiff. (Doc. #1, ¶¶ 3, 5, 57-85, 91, 98,
129-36.)
Given the type of claims being alleged, the Court
disagrees that such allegations render the Complaint a shotgun
pleading. Cf. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1359
n.9 (11th Cir. 1997) (finding a shotgun pleading where “a reader
of the complaint must speculate as to which factual allegations
pertain to which count”); Cramer v. State of Fla., 117 F.3d 1258,
1261 (11th Cir. 1997) (“Cramer and Kessler’s complaint is a
rambling ‘shotgun’ pleading that is so disorganized and ambiguous
that it is almost impossible to discern precisely what it is that
these appellants are claiming.”).
1

5

that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555; see also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

an

accusation.”

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to the plaintiff, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), but “[l]egal conclusions without
adequate factual support are entitled to no assumption of truth,”
Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted).

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.

Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages
in a two-step approach: “When there are well-pleaded factual

6

allegations,

a

court

should

assume

their

veracity

and

then

determine whether they plausibly give rise to an entitlement to
relief.”
(1)

Iqbal, 556 U.S. at 679.
Trafficking Victims Protection Reauthorization Act

Both motions challenge the one federal claim, the alleged
violation of the TVPRA set forth in Count One.

The TVPRA provides

a civil remedy to victims of certain types of human trafficking.
The civil remedy portion of the Act provides:
(a) An individual who is a victim of a violation of this
chapter may bring a civil action against the perpetrator
(or whoever knowingly benefits, financially or by
receiving anything of value from participation in a
venture which that person knew or should have known has
engaged in an act in violation of this chapter) in an
appropriate district court of the United States and may
recover damages and reasonable attorneys fees.
18 U.S.C. § 1595(a).

The phrase “a violation of this chapter”

refers to Chapter 77 of Title 18 of the United States Code.

The

only violation of Chapter 77 relevant to this case is contained in
18 U.S.C. § 1591(a), which provides in relevant part:
(a)

Whoever knowingly –

(1) in or affecting interstate or foreign commerce .
. . recruits, entices, harbors, transports, provides,
obtains,
advertises,
maintains,
patronizes,
or
solicits by any means a person; or
(2) benefits, financially or by receiving anything of
value, from participation in a venture which has
engaged in an act described in violation of paragraph
(1),
knowing, or except where the act constituting the
violation of paragraph (1) is advertising, in reckless

7

disregard of the fact, that means of force, threats of
force, fraud, coercion described in subsection (e)(2),
or any combination of such means will be used to cause
the person to engage in a commercial sex act, or that
the person has not attained the age of 18 years and will
be caused to engage in a commercial sex act, shall be
punished as provided in subsection (b).
18 U.S.C. § 1591(a).

To state a section 1595(a) claim in this

case, plaintiff must plausibly allege that she was a victim of a
criminal offense under section 1591(a), and then must plausibly
allege that defendant (1)”knowingly benefit[ted] financially or by
receiving anything of value,” (2) from participation in a venture,
(3) which defendant “knew or should have known has engaged in” sex
trafficking under section 1591(a).

S.Y., 476 F. Supp. 3d at 1255-

56 (citing A.B. v. Marriott Int’l, Inc., 455 F. Supp. 3d 171, 181
(E.D. Pa. 2020)).
(a)
The

“Participation” in a “Venture”

motions

allegations

that

argue

that

defendants

required by section 1595(a).

the

Complaint

participated

in

lacks
a

well-pled

“venture,”

as

(Doc. #18, pp. 14-15; Doc. #20, pp.

7-10.) Drawing on the definition of “venture” used in the criminal
portion of the statute, 18 U.S.C. § 1591(e)(6) 2, R&M and Vocisano
assert

that

a

“venture”

“associated in fact.”

requires

two

(Doc. #20, p. 7.)

or

more

individuals

Borrowing from the

“The term ‘venture’ means any group of two or more
individuals associated in fact, whether or not a legal entity.”
18 U.S.C. § 1591(e)(6).
2

8

federal RICO definition of “enterprise,” R&M and Vocisano argue
that “associated in fact” requires that persons must operate as a
“continuing unit that functions with a common purpose.”
8.)

(Id. p.

R&M and Vocisano continue that in the context of a TVPRA claim

against a hotel operator, the Complaint must “at least” allege a
“continuous business relationship between the trafficker and the
hotels such that it would appear that the trafficker and the hotels
have established a pattern of conduct or could be said to have a
tacit agreement.”

(Id. p. 8) (citing M.A. v. Wyndham Hotels &

Resorts, Inc., 425 F. Supp. 3d 959, 970 (S.D. Ohio 2019)); see
also Doe v. Rickey Patel, LLC, 2020 WL 6121939, *5 (S.D. Fla. Sept.
30, 2020) (“In order to plead Defendants participated in a venture,
Plaintiff must allege facts from which the Court could reasonably
infer the hotels could be said to have a tacit agreement with the
trafficker.”

(marks omitted)).

R&M and Vocisano conclude that “a

commercial transaction,” such as the rental of a hotel room, “does
not give rise to a reasonable inference that the participants in
such

a

transaction

‘associated in fact.’”

shared

any

common

purpose

or

otherwise

(Doc. #20, pp. 8-9.)

Here, the Complaint alleges the defendants participated in a
venture “by engaging in a pattern of acts and omissions that were
intended to support, facilitate, harbor, and otherwise further the
traffickers’ sale and victimization of the Plaintiff S.Y. for
commercial sexual exploitation by repeatedly renting rooms at Best

9

Western Naples Plaza Hotel to people” the defendants “knew or
should have known were engaged in sex trafficking.”
160.)

(Doc. #1, ¶

The Complaint also alleges why the defendants should have

been on notice of the sex trafficking and how it failed to prevent
it.

(Id. ¶¶ 4-16, 57-85, 114.)

The Court finds the allegations

in the Complaint sufficient to allege participation in a venture
under section 1595(a).
finds

it

sufficient

See Doe, 2020 WL 6121939, *5 (“The Court
for

Plaintiff

to

plead

that

Defendants

participated in a venture by renting rooms to individuals that
knew or should have known were involved in a sex-trafficking
venture, including the sex-trafficking victim.”); M.A., 425 F.
Supp. 3d at 971 (“This Court finds Plaintiff has alleged sufficient
facts to show Defendants ‘participated in a venture’ under § 1595
by alleging that Defendants rented rooms to people it knew or
should have known where [sic] engaged in sex trafficking.”).
The defendants also argue that “participation” in a venture
requires an allegation of an overt act in furtherance of the
venture,

and

insufficient.

that

failure

to

prevent

sex

trafficking

(Doc. #18, pp. 14-15; Doc. #20, p. 9.)

is not convinced.

is

The Court

S.Y., 476 F. Supp. 3d at 1256 (“In the absence

of any controlling authority, the Court concludes that actual
‘participation in the sex trafficking act itself’ is not required
to state a claim under section 1595.

Accordingly, plaintiffs’

failure to allege such actual participation is not fatal to its

10

section 1595 claim under the TVPRA.”).

The defendants have not

identified any controlling authority to the contrary.
(b)

Knowingly Benefited From Participating in Venture

The motions also argue that the Complaint insufficiently
alleges the defendants knowingly benefitted from participating in
a venture that committed TVPRA crimes, with knowledge of the causal
relationship.

(Doc. #18, pp. 13-14; Doc. #20, pp. 10-11.)

R&M

and Vocisano argue that the allegation that it benefited generally
from

the

operation

liability.

of

the

hotel

is

insufficient

for

TVPRA

(Doc. #20, p. 10.)

The Complaint alleges the defendants knowingly benefited from
the sex trafficking of plaintiff “by receiving payment for the
rooms rented for Plaintiff S.Y. and her traffickers at the Best
Western Naples Plaza Hotel,” and by receiving “other financial
benefits in the form of food and beverage sales and ATM fees from
those persons who were engaging in sex trafficking.”
158.)

(Doc. #1, ¶

As to Best Western as franchisor, the Complaint alleges it

“received a significant franchise fee and continuous royalties on
the Best Western Naples Plaza Hotel’s gross revenue,” while also
exercising “ongoing and systematic control over operations at the
Best Western Naples Plaza Hotel.” (Id. ¶¶ 45, 114.)
finds

such

allegations

benefitted” element.

sufficient

to

satisfy

the

The Court
“knowingly

S.Y., 476 F. Supp. 3d at 1257; Doe S.W. v.

Lorain-Elyria Motel, Inc., 2020 WL 1244192, *5 (S.D. Ohio Mar. 16,

11

2020); H.H. v. G6 Hosp., LLC, 2019 WL 6682152, *2 (S.D. Ohio Dec.
6, 2019); M.A., 425 F. Supp. 3d at 965.
(c)

Knew

or

Should

Have

Known

that

Venture

was

Committing Sex Trafficking Crimes
Both motions argue the Complaint fails to plausibly allege
the defendants knew or should have known that the “venture” was
engaging in sex-trafficking crimes, i.e., that the defendants knew
or should have known that an adult plaintiff was caused to engage
in commercial sex by force, threats of force, fraud, or coercion.
(Doc. #18, pp. 15-18; Doc. #20, pp. 11-13.)

The Court disagrees.

First of all, “knowledge, and other conditions of a person’s
mind may be alleged generally.”

Fed. R. Civ. P. 9(b); see Sun

Life Assurance Co. of Can. v. Imperial Premium Fin., LLC, 904 F.3d
1197, 1215 (11th Cir. 2018).

Pleading “generally” is not without

limits, and a complaint must still comply with “the less rigid—
though still operative—strictures of Rule 8.”
686–87.

Iqbal, 556 U.S. at

The Complaint clearly satisfies this notice pleading

standard.
Plaintiff has alleged that the following was “routine conduct
taking place at the Best Western Naples Plaza Hotel as a result of
the human sex trafficking enterprise”:
a. Plaintiff’s sex traffickers frequently rented rooms
at the hotel close to each other;

12

b. Plaintiff’s sex traffickers paid cash for the rooms
at the Best Western Naples Plaza Hotel where the
Plaintiff engaged in commercial sex acts;
c. Plaintiff’s sex traffickers booked extended stays at
the Best Western Naples Plaza Hotel for themselves
and for the Plaintiff on a routine basis and on a
rotating basis frequently throughout the year;
d. Plaintiff and her sex traffickers would have few or
no luggage or personal possessions for these extended
stays;
e. Plaintiff was confined in the rooms at the Best
Western Naples Plaza Hotel for long periods of time;
f. Plaintiff’s rooms and her sex traffickers’ rooms
consistently displayed “Do Not Disturb” signs on the
doors to the room where the Plaintiff was engaged in
commercial sex acts;
g. Men (“Johns”) frequently entered and left the rooms
at the Best Western Naples Plaza Hotel where the
Plaintiff was engaged in illegal commercial sex acts
at all times of day and night;
h. The staff and customers at the Best Western Naples
Plaza Hotel that was owned, operated, managed,
supervised,
controlled
and/or
otherwise
held
responsible by each and every Best Western Naples
Plaza Hotel Defendant saw and/or reported to the Best
Western
Naples
Plaza
Hotel’s
respective
administration that the rooms where the Plaintiff
engaged in commercial sex acts were messy, and
contained sex and drug paraphernalia and had an
unclean smell;
i. The rooms at the Best Western Naples Plaza Hotel were
stained with the Plaintiff’s blood after she was
beaten or violently raped;
j. Plaintiff’s sex traffickers consistently refused
housekeeping services and otherwise would prohibit
staff from entering their rooms and the Plaintiff’s
rooms;

13

k. Plaintiff would frequently request clean towels and
linens;
l. Plaintiff dressed in a sexually explicit manner and
would walk the hallways of the Best Western Naples
Plaza Hotel Defendant [sic];
m. Excessively loud noises would consistently come from
Plaintiff’s rooms;
n. During nighttime hours, Plaintiff and her “Johns” and
drug clients would create noise in the public area of
the Best Western Naples Plaza Hotel and, upon
information and belief, would be a disturbance to
other guests using the hotel for their intended
purposes;
o. Plaintiff would sleep during the day and the staff
members of the Best Western Naples Plaza Hotel would
consistently see the Plaintiff wearing lounge or sleep
type clothing during the day; and
p. While at the hotel, the Plaintiff displayed clear
signs of physical abuse, diminished personal hygiene,
submissiveness and inappropriate attire.
(Doc. #1, ¶ 98.)

Further, the Complaint alleges the defendants

“knew or should have known about the nature of the sex trafficking
venture at the Best Western Naples Plaza Hotel, including as they
related to Plaintiff S.Y.” due to the following:
a. Requests by the traffickers to rent rooms near exit
doors;
b. Cash payments for the rooms by the sex traffickers;
c. Refusal of housekeeping services by those persons
engaged in sex trafficking;
d. Excessive used condoms located in the rooms used for
sex trafficking;
e. Excessive requests for towels and linens in the rooms
used for sex trafficking;

14

f. Hotel staff observing Plaintiff
traffickers in the hotel;

S.Y.

and

her

g. Plaintiff S.Y. being escorted by traffickers in and
around the hotel;
h. Pleas and screams from [sic] help coming from the
rooms of Plaintiff S.Y.;
i. Operation of sex trafficking ventures out of the same
hotel room for multiple days or weeks in succession;
j. Multiple men per day coming and going from the same
rooms without luggage or personal possessions; and
k. Knowledge of police and EMS activity at the Best
Western Naples Plaza Hotel and at other locations near
the Best Western Naples Plaza Hotel that was related
to commercial sex work.
(Id. ¶ 159.)
The Court finds these allegations sufficient to reasonably
infer

the

defendants

trafficking venture.

knew

or

should

have

known

of

the

sex

S.Y., 476 F. Supp. 3d at 1257; A.B., 455 F.

Supp. 3d at 193-94; Doe S.W., 2020 WL 1244192, *5-6; H.H., 2019 WL
6682152, *3; M.A., 425 F. Supp 3d at 967-68.
(d)
Finally,

Vicarious Liability
Best

Western

liability under the TVPRA.

suggests

there

(Doc. #18, p. 6.)

is

no

vicarious

The Court disagrees.

See S.Y., 476 F. Supp. 3d at 1257-58 (finding plaintiff made
sufficient

allegations

that

franchisor

was

vicariously

liable

under section 1595 of the TVPRA to survive dismissal); see also
J.C. v. Choice Hotels Int’l, Inc., 2020 WL 6318707, *10 (N.D. Ca.

15

Oct. 28, 2020) (finding plaintiff’s vicarious liability claim had
“alleged

sufficient

[defendants]

facts

received

to

support

financial

a

benefits

plausible
from

a

claim

that

venture

they

vicariously participate in (through their franchisees) that the
franchises should have known was engaged in sex trafficking”).
Best Western also argues that even if it could be held
vicariously liable under the TVPRA, plaintiff’s allegations are
insufficient to establish an agency relationship between Best
Western and its franchisees. (Doc. #18, pp. 6-8.) Having reviewed
the allegations at issue, the Court finds them sufficient to create
a plausible inference of an agency relationship.
“It is well-established that a franchise relationship does
not by itself create an agency relationship between the franchisor
and franchisee.”

Cain v. Shell Oil Co., 994 F. Supp. 2d 1251,

1252 (N.D. Fla. 2014).

However, “[f]ranchisors may well enter

into an agency relationship with a franchisee if, by contract or
action

or

representation,

the

franchisor

has

directly

or

apparently participated in some substantial way in directing or
managing acts of the franchisee, beyond the mere fact of providing
contractual franchise support activities.”

Mobil Oil Corp. v.

Bransford, 648 So. 2d 119, 120 (Fla. 1995).
Here, the Complaint alleges Best Western was in an agency
relationship with R&M and Vocisano during the relevant time period.
(Doc. #1, ¶ 114.)

The Complaint further asserts that in a variety

16

of ways Best Western exercised control over the means and methods
of how R&M and Vocisano conducted business, such as by profit
sharing, standardized training, standardized rules of operation,
regular inspection, and price fixing.

(Id. ¶ 115.)

The Court

finds such allegations sufficient to support a plausible inference
of an agency relationship.

See S.Y., 476 F. Supp. 3d at 1258;

A.B., 455 F. Supp. 3d at 195-97; Doe S.W., 2020 WL 1244192, *7;
H.H., 2019 WL 6682152, *6; M.A., 425 F. Supp. 3d at 972. 3

To the extent Best Western suggests such a relationship does
not in fact exist, such a determination “is generally a question
of fact for the jury unless the sole basis for the alleged agency
rests in the interpretation of a single contract in which case the
determination may be a question of law to be determined by the
court.”
Cain, 994 F. Supp. 2d at 1253.
Since the Complaint
alleges an agency relationship based upon the interaction between
Best Western and R&M and Vocisano, this is a question of fact
inappropriate to decide on a motion to dismiss. See Banco Espirito
Santo Int’l, Ltd. v. BDO Int’l, B.V., 979 So. 2d 1030, 1032 (Fla.
3d DCA 2008) (“Unless the alleged agency relationship is to be
proven exclusively by analysis of the contract between the
principal and agent (in which case the question is an issue of
law), the relationship is generally a question of fact and should
be analyzed by looking at the totality of the circumstances.”);
see also A.B. v. Hilton Worldwide Holdings Inc., 2020 WL 5371459,
*10 (D. Or. Sept. 8, 2020) (“Defendants dispute whether they
controlled the day-to-day operations of the hotels.
Although
Plaintiff may ultimately fail to establish the agency allegations,
at this stage in the proceedings this Court accepts as true all
well-pleaded factual allegations in the complaint and construes
them in Plaintiff’s favor.”); A.B., 455 F. Supp. 3d at 196 (“The
evidence may ultimately prove Marriott does not exercise day-today control over its Philadelphia Airport hotels, but this is more
properly raised after discovery.”).
3

17

Because the allegations in the Complaint are sufficient to
state a claim under section 1595 of the TVPRA, the Court denies
the motions for dismissal pursuant to Rule 12(b)(6).
(2)

Florida RICO Violation

Count

Two

of

the

Complaint

asserts

a

claim

against

the

defendants under Florida’s civil RICO statute, section 772.104,
Florida Statutes.
statute,

plaintiff

(Doc. #1, p. 37.)
must

allege

To state a claim under the

plausible

facts

showing

“(1)

conduct or participation in an enterprise through (2) a pattern of
[criminal] activity.”

Horace-Manasse v. Wells Fargo Bank, N.A.,

521 F. App’x 782, 784 (11th Cir. 2013) (quoting Lugo v. State, 845
So. 2d 74, 97 (Fla. 2003)). 4
Both motions argue plaintiff has failed to plead Count Two
with the heightened level of specificity required for RICO claims.
(Doc. #18, pp. 18-19; Doc. #20, pp. 16-17.)

Plaintiff responds

that because the RICO claim is based on non-fraudulent predicate
acts, the heightened pleading requirement is not applicable. (Doc.
#37, p. 26; Doc. #38, p. 27.)

The Court agrees with plaintiff.

“Since Florida RICO is patterned after federal RICO, Florida
courts have looked to the federal courts for guidance in
interpreting and applying the act. Therefore, federal decisions
should be accorded great weight.” O’Malley v. St. Thomas Univ.,
Inc., 599 So. 2d 999, 1000 (Fla. 3d DCA 1992); see also Cont’l 332
Fund, LLC v. Albertelli, 317 F. Supp. 3d 1124, 1137 (M.D. Fla.
2018) (“[T]he Eleventh Circuit applies federal RICO analysis
equally to Florida RICO claims.”).
4

18

While the Eleventh Circuit has described RICO claims as
“essentially a certain breed of fraud claims” that “must be pled
with an increased level of specificity” consistent with Rule 9 of
the Federal Rules of Civil Procedure, Arthur v. JP Morgan Chase
Bank, NA, 569 F. App’x 669, 681 (11th Cir. 2014), such a standard
applies only when the RICO claim is based on fraud or mistake, see
D. Penguin Bros. Ltd. v. City Nat’l Bank, 587 F. App’x 663, 666
(2d Cir. 2014) (“In the RICO context, a plaintiff must plead
predicate acts sounding in fraud or mistake according to the
particularity requirement of Rule 9(b); for other elements of a
RICO claim—such as non-fraud predicate acts or . . . the existence
of an ‘enterprise’—a plaintiff’s complaint need satisfy only the
‘short and plain statement’ standard of Rule 8(a).”); Cardenas v.
Toyota Motor Corp., 418 F. Supp. 3d 1090, 1098 (S.D. Fla. 2019)
(“[B]ecause particularity pleading under Rule 9(b) is limited to
circumstances constituting fraud, the non-fraud elements of a RICO
claim can be alleged under Rule 8(a) standards.” (citations and
marks omitted)).

As the predicate acts in plaintiff’s RICO claim

are not based in fraud, the Court finds Rule 9 is not applicable.
See Magnifico v. Villanueva, 783 F. Supp. 2d 1217, 1229, 1229 n.9
(S.D. Fla. 2011) (in addressing RICO allegations, court applied
Rule 9(b) to “fraud-related predicate acts,” such as mail, wire,
and immigration document fraud, and Rule 8 to “non-fraud predicate
acts,” such as human trafficking).

19

The

defendants

also

argue

that

plaintiff

lacks

because personal injuries cannot be remedied by RICO.
p. 19; Doc. #20, p. 17.)

standing

(Doc. #18,

There is some authority to suggest the

Florida RICO statute, unlike the federal equivalent, does not
“expressly limit recovery” to persons who have suffered injury to
their business or property, and that recovery for personal injuries
may be allowed.

Berber v. Wells Fargo Bank, N.A., 2018 WL

10436236, *3 (S.D. Fla. May 24, 2018) (collecting cases).

The

motion will be denied on this basis.
Plaintiff’s RICO claim is asserted under sections 772.104(1)
and (2), which provide civil remedies for violations of section
772.103, Florida Statutes.

(Doc. #1, ¶ 162.)

Section 772.103

contains four subsections of prohibited activities.
Fla. Stat.

§ 772.103,

R&M and Vocisano argue that because plaintiff fails

“to specify the particular subsection of Section 772.103 giving
rise to a Florida RICO claim,” the claim is defective.
p. 14.)

(Doc. #20,

Plaintiff fails to address this argument in her response.

This court has previously stated that a RICO claim’s failure
to identify which subsection of section 772.103 is implicated is
sufficient to warrant dismissal.

Lennon v. Marriott Ownership

Resorts, Inc., 2019 WL 1440092, *10 (M.D. Fla. Mar. 31, 2019);
Signeo Int’l Ltd. v. Wade, 2013 WL 12153590, *6 (M.D. Fla. Apr. 1,
2013).

However, the Court finds dismissal unnecessary in this

case because it is apparent which subsection plaintiff is relying

20

upon.

Section

772.103(3)

makes

it

unlawful

for

any

person

associated with any enterprise to conduct or participate in such
enterprise

through

pattern

plaintiff

Complaint,

a

alleges

participated

in

.

.

.

the

of

criminal

the

activity.

affairs

of

their

the

“conducted

defendants

In

or

respective

RICO

Enterprises through a pattern of numerous acts of racketeering
activity . . . in violation of Fla. Stat. § 772.103.”
¶ 167.)
three,

(Doc. #1,

Because this allegation tracks the language of subsection
the

Court

finds

applicable provision.

it

provides

sufficient

notice

of

the

Accordingly, the Court denies R&M and

Vocisano’s request for dismissal on this basis.
Each of the motions also argues plaintiff has insufficiently
pled the enterprise element of her claim.
#20, pp. 14-16.)

(Doc. #18, p. 20; Doc.

Florida’s RICO statute defines enterprise to

include a “group of individuals associated in fact although not a
legal entity.”

§ 772.102(3), Fla. Stat.

“[A]n association-in-

fact enterprise is simply a continuing unit that functions with a
common purpose.” Boyle v. United States, 556 U.S. 938, 948 (2009).
To sufficiently plead such an enterprise, “a plaintiff must allege
that a group of persons shares three structural features: (1) a
purpose,

(2)

enterprise,

relationships
and

(3)

among

longevity

those

associated

sufficient

to

associates to pursue the enterprise’s purpose.”

21

with

permit

the

these

Cisneros v.

Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020) (marks and
citations omitted).
“The purpose prong contemplates ‘a common purpose of engaging
in

a

course

participants.”

of

v.

Turkette,

conduct’

among

the

enterprise’s

alleged

Cisneros, 972 F.3d at 1211 (quoting United States
452

U.S.

576,

583

(1981)).

“An

abstract

common

purpose, such as a generally shared interest in making money, will
not suffice.

Rather, where the participants’ ultimate purpose is

to make money for themselves, a RICO plaintiff must plausibly
allege that the participants shared the purpose of enriching
themselves through a particular criminal course of conduct.”

Id.

(citations omitted).
Here, the Complaint alleges the defendants “associated with
each other and/or the Plaintiff S.Y.’s sex traffickers for the
common purpose of profiting off an established sex trafficking
scheme.”

(Doc. #1, ¶ 166.)

Plaintiff asserts this “association-

in-fact” constitutes an “enterprise” under Florida’s RICO statute,
and

that

the

defendants

conducted

or

participated

in

their

enterprises through a pattern of criminal activity, “related by
their

common

purpose

trafficking scheme.”
allegations

to

profit

off

an

(Id. ¶¶ 166-67.)

sufficient

to

allege

the

institutionalized

sex

The Court finds these
defendants

“shared

the

purpose of enriching themselves through a particular criminal
course of conduct.”

Cisneros, 972 F.3d at 1211; see also United

22

States v. Church, 955 F.2d 688, 697-98 (11th Cir. 1992) (noting
that “an association’s devotion to ‘making money from repeated
criminal activity’ . . . demonstrates an enterprise’s ‘common
purpose of engaging in a course of conduct’” (citations omitted));
Burgese v. Starwood Hotel & Resorts Worldwide, Inc., 101 F. Supp.
3d 414, 424 (D. N.J. 2015) (on motion to dismiss Florida RICO
claim, court found that “Plaintiff’s Amended Complaint can be read
to allege a ‘common purpose’ of furthering an institutionalized
prostitution scheme to increase profits for the participants,” and
that

“[t]hese

allegations,

though

thin,

are

sufficient

for

purposes of this motion”).
Best Western also argues the Complaint fails to sufficiently
plead the “pattern of criminal activity” element.
19-20.)

(Doc. #18, pp.

As previously stated, “[i]n order to state a civil cause

of action under the Florida RICO Act, a plaintiff must allege a
pattern of criminal activity.”

Arthur v. JP Morgan Chase Bank,

NA, 569 F. App’x 669, 682 (11th Cir. 2014) (citing §§ 772.103-104,
Fla. Stat.).

The statute’s definition of “criminal activity”

provides “that a particular state law crime can serve as the
predicate act for a RICO claim if it is ‘chargeable by indictment
or information’ and falls within a series of specified provisions.”
Id. (citing § 772.102(1)(a), Fla. Stat.).

“In order to establish

a pattern of criminal activity, the plaintiff must allege two or
more criminal acts ‘that have the same or similar intents, results,

23

accomplices, victims, or methods of commission’ that occurred
within a five-year time span.”

Id. at 680 (citing § 772.102(4),

Fla. Stat.).
Plaintiff’s

Florida

RICO

claim

is

predicated

on

the

commission of human trafficking crimes in violation of section
787.06, Florida Statutes.

(Doc. #1, ¶¶ 168, 170); see also §

772.102(1)(a)15., Fla. Stat. (listing “human trafficking” under
Chapter 787 among the types of “criminal activity” covered by the
Florida

RICO

punishments

statute).

for

“[a]ny

This
person

provision

who

provides

knowingly,

or

in

various
reckless

disregard of the facts, engages in human trafficking, or attempts
to

engage

in

human

trafficking,

or

benefits

financially

by

receiving anything of value from participation in a venture that
has subjected a person to human trafficking.”

§ 787.06(3), Fla.

Stat.
The Complaint alleges plaintiff was trafficked on a “regular,
consistent and/or repeated basis” at various hotels in Naples,
Florida, and at the Best Western Hotel beginning in 2013.
#1, ¶ 86.)

(Doc.

The Complaint describes how the sex trafficking

occurred at the Best Western Hotel and the “routine conduct” taking
place as a result, as well as alleges the defendants’ employees
participated in the trafficking, made promises to the traffickers
not to interfere with it, and knowingly turned a blind eye to it.
(Id. ¶¶ 90-91, 93, 98, 134-36.)

24

Viewing the allegations in the

light most favorable to plaintiff, the Court finds them sufficient
to allege a pattern of criminal activity for purposes of Florida’s
RICO statute.
Accordingly, the Court finds the Complaint’s Florida RICO
claim sufficiently pled and therefore will deny the motions to
dismiss the claim. 5
(3)

Premise Liability

Count Three of the Complaint asserts a claim of premise
liability against each defendant.

(Doc. #1, p. 40.)

liability claim is a form of negligence action.
negligence

are

duty,

breach,

harm,

and

A premise

“The elements for

proximate

cause;

the

additional elements for a claim of premises liability include the
defendant’s possession or control of the premises and notice of
the dangerous condition.”

Lisanti v. City of Port Richey, 787 So.

2d 36, 37 (Fla. 2d DCA 2001).

Plaintiff alleges the defendants

owed her a variety of duties, that they breached these duties, and
that as a direct and proximate result, she suffered bodily injury.
(Doc. #1, ¶¶ 183-97.)

Plaintiff also alleges the defendants had

actual or constructive knowledge of sex trafficking occurring on

To the extent Best Western argues plaintiff fails to state
a plausible claim for RICO conspiracy (Doc. #18, pp. 20-21), the
Court finds this issue moot. Although plaintiff uses the phrase
“conducted or participated in, or conspired to conduct or
participate in, the affairs” of the RICO enterprises (Doc. #1, ¶
167), there does not appear to be a separate conspiracy claim
within Count Two.
5

25

the premises, that they knew or should have known the risk of such
criminal conduct taking place would be unreasonably high without
appropriate precautions, and that they had actual or constructive
knowledge of the dangerous condition plaintiff was in.

(Id.

¶¶

188-90.)
(a)

Statute of Limitations

The motions argue the premise liability claim should be
dismissed

because

limitations.

it

is

barred

by

the

relevant

statute

(Doc. #18, pp. 21-22; Doc. #20, p. 18.)

of

Under

Florida law, the statute of limitations for negligence claims is
four years.

§ 95.11(3)(a), Fla. Stat.

A statute of limitations bar is “an affirmative defense, and
. . . plaintiff[s] [are] not required to negate an affirmative
defense in [their] complaint.”

La Grasta v. First Union Sec.,

Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citation omitted).

“A

dismissal for failure to state a claim on statute of limitations
grounds is appropriate only if it is apparent from the face of the
complaint that the claim is time-barred.”

United States ex rel.

Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081, 1085 (11th Cir.
2018) (marks and citation omitted).
Plaintiff alleges the sex trafficking occurred at the Best
Western Hotel “from approximately 2013 and continuing through
approximately February of 2016.” (Doc. #1, ¶ 13.) Both defendants
argue

that

because

plaintiff

did

26

not

file

her

lawsuit

until

December 2019, her premise liability claim is at least partially
time barred.

(Doc. #18, p. 22; Doc. #20, p. 18.)

“Under Florida law, the statute of limitations begins to run
when the cause of action accrues.”

Carnival Corp. v. Rolls-Royce

PLC, 2009 WL 3861482, *5 (S.D. Fla. Nov. 17, 2009) (citing §
95.031, Fla. Stat.).

“A cause of action accrues when the last

element constituting the cause of action occurs.”
Fla. Stat.

§ 95.031(1),

“Under the continuing tort doctrine, the cause of

action accrues when the tortious conduct ceases.”

Effs v. Sony

Pictures Home Entm’t, Inc., 197 So. 3d 1243, 1244 (Fla. 3d DCA
2016) (emphasis and citation omitted).

“A continuing tort is

established by continual tortious acts, not by continual harmful
effects from an original, completed act.”

Id. at 1245 (marks,

emphasis, and citation omitted).
Here,

plaintiff

alleges

she

was

a

repeat

victim

of

sex

trafficking at the Best Western Hotel between 2013 and February
2016.

The Court finds such allegations sufficient to invoke the

continuing tort doctrine.

See Nat’l Sourcing, Inc. v. Bracciale,

2018 WL 6172430, *2 (M.D. Fla. Nov. 26, 2018) (finding allegation
that

a

defendant’s

actions

“continued

to

this

day”

inferred

continuous tortious conduct, thereby making it plausible for the
plaintiffs to assert the continuing tort doctrine as a basis to
toll the statute of limitations).

Accordingly, the Court finds

that plaintiff’s premise liability claim did not accrue until

27

February 2016, and therefore she had until February 2020 to file
a complaint asserting premise liability.
(1) Best Western
Plaintiff met this deadline by filing her First Amended
Complaint against Best Western on December 31, 2019.

S.Y. et al

v. Naples Hotel Co. et al, Case No. 2:20-cv-118 (Doc. #3).

While

the Court determined severance of the parties was appropriate in
the original action, S.Y., 476 F. Supp. 3d at 1259, and this
Complaint was filed in August 2020, it appears that the December
2019 date is applicable for statute of limitations purposes under
the relation-back provisions of Rule 15(c) of the Federal Rules of
Civil Procedure.
Relation back is a legal fiction employed to salvage
claims that would otherwise be unjustly barred by a
limitations provision. See McCurdy v. United States, 264
U.S. 484, 487, 44 S.Ct. 345, 346, 68 L.Ed. 801 (1924);
Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993).
Under Rule 15, a claim in an amended complaint relates
back to the filing date of the original complaint if it
“asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted
to be set out—in the original pleading.” Fed. R. Civ. P.
15(c)(1)(B). When the facts in the original complaint do
not put the defendant “on notice that the new claims of
negligence might be asserted,” but the new claims
instead “involve[ ] separate and distinct conduct,” such
that the plaintiff would have to prove “completely
different facts” than required to recover on the claims
in the original complaint, the new claims do not relate
back. Moore, 989 F.2d at 1132.
Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1368 (11th Cir. 2018).
Accordingly,

since

it

is

not

apparent

28

from

the

face

of

the

Complaint that the claim is time-barred, dismissal based upon the
statute of limitations affirmative defense is not appropriate.
(2) R&M and Vocisano
R&M and Vocisano were not named in the December 2019 First
Amended Complaint.
April 2020.

Rather, they were first added as defendants in

S.Y. et al v. Naples Hotel Co. et al, Case No. 2:20-

cv-118 (Doc. #85.)

Nonetheless, the Court declines to dismiss

based on the statute of limitations.

As noted, plaintiff is not

required to negate an affirmative defense in her complaint.
Grasta, 358 F.3d at 845.

La

It is not apparent from the face of the

Complaint that the claim is time-barred because the Court cannot
determine that plaintiff’s premise liability claim does not relate
back to the First Amended Complaint or is not subject to statutory
or equitable tolling. 6

Therefore, the motion to dismiss is denied

at this stage of the proceedings.
To the extent R&M and Vocisano seek dismissal of the other
negligence claims on the same grounds (Doc. #20, p. 18), the
Court’s ruling applies to those claims as well. 7
“The doctrine of equitable tolling was developed to permit
under certain circumstances the filing of a lawsuit that otherwise
would be barred by a limitations period.” Machules v. Dep’t of
Admin., 523 So. 2d 1132, 1133 (Fla. 1988); see also Fed. Deposit
Ins. Corp. v. Nationwide Equities Corp., 304 So. 3d 1240, 1243–44
(Fla. 3d DCA 2020); § 95.051, Fla. Stat.
6

R&M and Vocisano also suggest the negligence-based claims
fail because plaintiff does not allege the specific dates upon
which the acts occurred. (Doc. #20, p. 18). The Court disagrees.
7

29

(b)

Failure to State a Claim

Both defendants challenge the duty element of the premise
liability claim.

Best Western argues the claim fails because the

allegations of agency are insufficient.

(Doc. #18, pp. 22-23.)

However, as the Court has determined otherwise, Best Western’s
argument is rejected.

R&M and Vocisano argue there could be no

duty to protect plaintiff from the criminal conduct of third
parties because such conduct was not foreseeable.
18-19.)

(Doc. #20, pp.

The Court disagrees with this argument as well.

“Under Florida law, a business owes invitees a duty to use
due care to maintain its premises in a reasonably safe condition.
This includes the duty to protect customers from criminal attacks
that are reasonably foreseeable.”

Banosmoreno v. Walgreen Co.,

299 F. App’x 912, 913 (11th Cir. 2008) (citations omitted).
Foreseeability can be shown by two alternative means.
First, a plaintiff may demonstrate that a proprietor
knew or should have known of a dangerous condition on
his premises that was likely to cause harm to a patron.
Second, a plaintiff can show that a proprietor knew or
should have known of the dangerous propensities of a
particular patron.
Id. (marks, citations, and footnote omitted).
only be pled generally.

Such knowledge must

Fed. R. Civ. P. 9(b).

See Watts v. City of Port St. Lucie, Fla., 2016 WL 633716, *3 (M.D.
Fla. Feb. 17, 2016) (“The failure to allege the dates does not,
alone, render the claims implausible under Twombly, given the other
factual allegations in the First Amended Complaint.”).

30

The

Complaint

contains

sufficient

allegations

that

sex

trafficking was occurring at the Best Western Hotel and that the
defendants knew or should have known of it.
98-107, 159.)

(Doc. #1, ¶¶ 57-64,

The Complaint also contains sufficient allegations

to support a claim of an agency relationship between Best Western
and

R&M

and

Vocisano,

and

relationship is premature.

any

factual

challenge

to

such

a

See Cain, 994 F. Supp. 2d at 1253;

Mobil Oil Corp., 648 So. 2d at 120.

Accordingly, the Court finds

the allegations in the Complaint are sufficient to satisfy the
notice pleading requirements.
Best Western also argues the claim fails because the Complaint
does not plausibly allege that it possessed or controlled the
premises.

(Doc. #18, p. 23.)

The Court disagrees.

As noted, a

premise liability claim requires a defendant possess or control
the premises at issue.

Lisanti, 787 So. 2d at 37.

Here, the

Complaint alleges the defendants were the “owners, operators,
managers, supervisors, controllers and innkeepers” of the Best
Western Hotel, and that Best Western exercised control over the
means and methods of how R&M and Vocisano conducted business at
the hotel. 8

(Doc. #1, ¶¶ 30, 115.)

While Best Western may dispute

Attached to both motions are a Collier County Property
Appraiser summary and a warranty deed listing R&M and/or Vocisano
as the owner(s) of the hotel property. (Doc. #18-1, p. 26; Doc.
#18-2, pp. 27-30; Doc. #20-1, p. 26; Doc. #20-2, pp. 28-31.) The
defendants request the Court take judicial notice of these records
to prove ownership of the hotel at issue.
(Doc. #18, pp. 5-6;
8

31

these allegations, the Court must accept them as true at this stage
of the proceedings and finds them sufficient to allege Best Western
had sufficient control of the hotel for premise liability purposes.
(4)

Negligent Hiring, Supervision, and Retention

Count Four of the Complaint asserts a claim of negligent
hiring, supervision, and retention against the defendants.
#1, p. 45.)

(Doc.

The motions seek dismissal of the claim based on

pleading deficiencies.

The defendants first argue plaintiff has

improperly lumped multiple claims together.
24; Doc. #20, p. 19.)

(Doc. #18, pp. 23-

“A party may set out 2 or more statements

of a claim or defense alternatively or hypothetically, either in
a single count or defense or in separate ones.

If a party makes

alternative statements, the pleading is sufficient if any one of
them is sufficient.”

Fed. R. Civ. P. 8(d)(2).

The Court finds

that the claims are properly set forth in a single count.
To state a claim for negligent hiring, plaintiff must allege
facts showing that
(1) the employer was required to make an appropriate
investigation of the employee and failed to do so; (2)
an appropriate investigation would have revealed the
Doc. #20, p. 4.) The Court declines to do so. See Dippin’ Dots,
Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197, 1204 (11th Cir.
2004) (recognizing that “a court has wide discretion to take
judicial notice of facts”).
The Court has found the Complaint
sufficiently alleges an agency relationship between Best Western
and R&M and Vocisano. Accordingly, whether R&M and/or Vocisano
are listed on public records as the owner of the Best Western Hotel
is not dispositive to any of the claims alleged in the Complaint.

32

unsuitability of the employee for the particular duty to
be performed or for employment in general; and (3) it
was unreasonable for the employer to hire the employee
in light of the information he knew or should have known.
Groover v. Polk Cty. Bd. of Cty. Comm’rs, 460 F. Supp. 3d 1242,
1251 (M.D. Fla. 2020) (quoting Malicki v. Doe, 814 So. 2d 347, 362
(Fla. 2002)).
retention

“Different from negligent hiring, ‘[n]egligent

occurs

when,

during

the

course

of

employment,

the

employer becomes aware or should have become aware of problems
with an employee that indicated his unfitness, and the employer
fails to take further action such as investigating, discharge, or
reassignment.’”

Id. (quoting Degitz v. S. Mgmt. Servs., Inc., 996

F. Supp. 1451, 1461 (M.D. Fla. 1998)). “Florida law also holds
employers liable for reasonably foreseeable damages resulting from
the negligent training of its employees and agents.”

Clary v.

Armor Corr. Health Servs., Inc., 2014 WL 505126, *4 (M.D. Fla.
Feb. 7, 2014) (citing Lewis v. City of St. Petersburg, 260 F.3d
1260, 1265 (11th Cir. 2001)).

“For an employer to owe a plaintiff

a duty, the plaintiff must be in the zone of risk that was
reasonably foreseeable to the employer.”

Id. (citation omitted).

Accordingly, to state a claim, the plaintiff must allege
facts that would establish a nexus between the plaintiff
and the tortfeasor’s employment from which a legal duty
would flow from the defendant-employer to the plaintiff.
The plaintiff must then establish that the defendantemployer breached that duty and that the breach caused
him damage.
Id. (citations omitted).

33

The Complaint alleges each defendant was in control of the
hiring, instructing, training, supervising, and terminating of the
hotel employees, and that each defendant had a duty to make an
appropriate investigation of the employees.

(Doc. #1, ¶¶ 205-06.)

The Complaint further alleges that the defendants knew or should
have known that hotel employees were “allowing criminals to rent
rooms for prostitution and drug dealing,” “failing to either
identify and/or report the human sex trafficking and foreseeable
harm” of plaintiff, and “failing to refuse continued lodging
services

to

human

sex

traffickers.”

(Id.

¶¶

208-10.)

The

Complaint concludes that the defendants were negligent in their
hiring,

employment,

supervision,

and

termination

decisions

regarding the employees, and that the sex trafficking of plaintiff
was a foreseeable and direct result.

(Id. ¶¶ 211-15.)

The Court

finds these allegations sufficient to state plausible claims for
negligent hiring, and negligent supervision/retention.
Both motions argue there are insufficient allegations that
the defendants knew of any unfit employees and failed to act.
(Doc. #18, p. 24; Doc. #20, p. 20); see also Bright v. City of
Tampa, 2017 WL 5248450, *8 (M.D. Fla. May 17, 2017) (“When an
employer fails to take a corrective action against an employee
because the employer had no notice of problems with the employee’s
fitness, the employer is not liable under Florida law for negligent
supervision or retention.”).

The Court disagrees.

34

The Complaint

sufficiently

alleges

facts

suggesting

sex

trafficking

was

occurring at the hotel, that the employees knew of it and failed
to prevent it, and that due to their control over the employees,
each defendant knew or should have known of it.
111, 202-210.)

(Doc. #1, ¶¶ 90-

The Court finds such allegations sufficient at

this stage of the proceedings.
R&M and Vocisano further argue the claim should be dismissed
because the Complaint does not identify the alleged employees at
issue.

(Doc. #20, p. 20.)

The Complaint alleges “[e]ach and

every” defendant “was in control of the hiring” of hotel employees,
and responsible for “instructing, training and supervising,” yet
employees failed “to refuse continued lodging services to human
sex traffickers” and failed “to either identify and/or report the
human sex trafficking.”

(Doc. #1, ¶¶ 205, 209-10.)

The Court is

required to accept all factual allegations as true, Erickson, 551
U.S. at 94, and “[i]n adjudicating a motion to dismiss, the
district

court

may

not

resolve

factual

disputes,”

Page

v.

Postmaster Gen. & Chief Exec. Officer of U.S. Postal Serv., 493 F.
App’x 994, 995 (11th Cir. 2012).

The Court finds that specific

employees are not required to be named. 9

Accordingly, the Court

To the extent Best Western suggests it did not hire any of
the employees at the hotel (Doc. #18, p. 24), the Complaint alleges
that Best Western made “employment decisions” for the hotel. (Doc.
#1, ¶ 115.)
9

35

denies the request to dismiss the negligent hiring, supervision,
and retention claim.
(5)

Negligent Rescue

Count Five of the Complaint asserts a claim of negligent
rescue against R&M and Vocisano.

(Doc. #1, p. 47.)

The Complaint

alleges R&M and Vocisano, as the owners and operators of the Best
Western Hotel, had a duty to keep the premises safe and prevent
foreseeable criminal activity, as well as a duty “to make safe a
dangerous condition at the Best Western Naples Plaza Hotel and to
rescue their hotel guests, specifically Plaintiff S.Y., from the
peril they created.”

(Id. ¶¶ 220, 223, 229.)

The Complaint

alleges that by various acts and omissions, R&M and Vocisano
breached these duties and that the continuous sex trafficking of
plaintiff was the direct and foreseeable result.
231-32, 234.)

(Id. ¶¶ 225-27,

R&M and Vocisano argue the negligent rescue claim

should be dismissed because it is insufficiently pled.

(Doc. #20,

pp. 21-22.)
There is no common law duty to rescue a stranger.

Estate of

Ferguson v. Mascara, 2010 WL 11558195, *2 (S.D. Fla. Sept. 7, 2010)
(citing Bradberry v. Pinellas Cty., 789 F.2d 1513, 1516 (11th Cir.
1986)).

“A well-established exception to this rule, however,

provides that an innkeeper is ‘under an ordinary duty of care to
[a guest] after he knows or has reason to know the [guest] is ill
or injured.’”

De La Flor v. Ritz-Carlton Hotel Co., L.L.C, 2013

36

WL 148401, *3 (S.D. Fla. Jan. 14, 2013)

(quoting L.A. Fitness,

Int’l, LLC v. Mayer, 980 So. 2d 550, 557 (Fla. 4th DCA 2008)); see
also Abramson v. Ritz Carlton Hotel Co., LLC, 480 F. App’x 158,
161 (3d Cir. 2012) (“Generally, there is no duty to affirmatively
assist an injured person unless a special relationship, such as
that between an innkeeper and its guests, exists between the
parties.”

(citation omitted)).

R&M and Vocisano argue that hotels only have a limited duty
to render aid to a guest it knew or should have known was ill or
injured, and that the Complaint contains no plausible facts to
suggest R&M and Vocisano knew plaintiff was in need of aid.
#20, p. 21.)

(Doc.

However, the Court finds the Complaint contains

sufficient allegations to satisfy this requirement.

(Doc. #1, ¶¶

98, 99, 230.)
(6)

Aiding and Abetting, Harboring, Confining, Coercion and
Criminal Enterprise

Finally, Count Six of the Complaint asserts a claim of aiding
and abetting against R&M and Vocisano.

(Doc. #1, p. 50.)

The

Complaint accuses R&M and Vocisano of “aiding and abetting unlawful
activity including unlawful confinement, imprisonment, assault and
battery by [plaintiff’s] sex traffickers and ‘Johns.’”
230.)

(Id. ¶

R&M and Vocisano argue that the claim must be dismissed

because it is overly vague, fails to articulate a cognizable,

37

independent
allegations.
Florida

cause

of

action,

(Doc. #20, p. 22.)
courts

have

and

lacks

well-pled

factual

The Court disagrees.

recognized

aiding

commission of a tort as a standalone claim.

and

abetting

the

See Gilison v. Flagler

Bank, 303 So. 3d 999, 1002 (Fla. 4th DCA 2020) (aiding and abetting
fraud); MP, LLC v. Sterling Holding, LLC, 231 So. 3d 517, 527 (Fla.
3d DCA 2017) (aiding and abetting breach of fiduciary duty).

This

Court has previously listed the following elements that must be
alleged “to state a claim for aiding and abetting a common law
tort” under Florida law: “(1) an underlying violation on the part
of the primary wrongdoer; (2) knowledge of the underlying violation
by the alleged aider and abetter [sic]; and (3) the rendering of
substantial assistance in committing the wrongdoing by the alleged
aider and abettor.”

Angell v. Allergan Sales, LLC, 2019 WL

3958262, *8 (M.D. Fla. Aug. 22, 2019); see also Lawrence v. Bank
of Am., N.A., 455 F. App’x 904, 906 (11th Cir. 2012) (applying the
above

elements

to

three

Florida

tort

claims).

These

cases

demonstrate Florida recognizes a common-law claim of aiding and
abetting tortious conduct.
The Court finds plaintiff’s allegations are not impermissibly
vague and, to the extent they allege actual knowledge

10,

are

“[A]llegations which demonstrate merely constructive
knowledge, recklessness or gross negligence cannot satisfy the
10

38

sufficient to state a claim.

Therefore, the Court denies R&M and

Vocisano’s request for dismissal.
C. Personal Jurisdiction
Finally,

Best

Western

argues

jurisdiction over it in this matter. 11
Court

has

previously

described

the

Court

lacks

personal

(Doc. #18, pp. 8-10.)
the

personal

This

jurisdiction

requirements as follows:
To hear a case, a federal court must have
jurisdiction over both the subject matter of the action
and the parties to the action. Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 584 (1999). Absent either, “the
court is powerless to proceed to an adjudication.” Id.
A federal court sitting in diversity may exercise
personal jurisdiction over an out-of-state defendant if:
(1) personal jurisdiction is authorized under the forum
state’s long-arm statute and (2) the exercise of such
jurisdiction comports with constitutional due process.
Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203
(11th Cir. 2015); Licciardello v. Lovelady, 544 F.3d
1280, 1283 (11th Cir. 2008). The exercise of personal
‘knowledge’ element of an aiding and abetting claim under Florida
law.” Angell, 2019 WL 3958262, *9.
Typically,
the
Court
would
address
the
personal
jurisdiction issue first, since “[a] court without personal
jurisdiction is powerless to take further action.” Posner v. Essex
Ins. Co., Ltd., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999). However,
because plaintiff asserts personal jurisdiction over Best Western
based in part on tortious acts committed within Florida (Doc. #38,
p. 14), it was first necessary to determine whether the Complaint
stated a cause of action against Best Western. See PVC Windoors,
Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 808 (11th Cir.
2010) (“In Florida, before a court addresses the question of
whether specific jurisdiction exists under the long-arm statute,
the court must determine ‘whether the allegations of the complaint
state a cause of action.’” (quoting Wendt v. Horowitz, 822 So. 2d
1252, 1260 (Fla. 2002)).
11

39

jurisdiction comports with due process if the nonresident defendant has established “certain minimum
contacts with the forum such that the maintenance of the
suit does not offend traditional notions of fair play
and substantial justice.” Helicopteros Nacionales de
Colombia,
S.A.
v.
Hall,
466
U.S.
408,
414
(1984) (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)).
The plaintiff “bears the initial burden of alleging
in the complaint sufficient facts to make out a prima
facie case of jurisdiction.” United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). A prima
facie case is established if the plaintiff alleges
enough facts to withstand a motion for directed
verdict. SEC v. Carrillo, 115 F.3d 1540, 1542 (11th Cir.
1997) (citation omitted). “First, the plaintiff must
allege sufficient facts in [its] complaint to initially
support long arm jurisdiction before the burden shifts
to the defendant to make a prima facie showing of the
inapplicability of the statute.” Future Tech. Today,
Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th
Cir. 2000) (citation omitted). If the defendant sustains
its burden by raising “a meritorious challenge to
personal
jurisdiction”
“through
affidavits,
documents[,] or testimony,” the burden shifts back to
the plaintiff. Sculptchair, Inc. v. Century Arts, Ltd.,
94 F.3d 623, 627 (11th Cir. 1996). Plaintiff is then
required to “substantiate the jurisdictional allegations
in the complaint by affidavits or other competent proof,
and not merely reiterate the factual allegations in the
complaint.” Future Tech. Today, Inc., 218 F.3d at
1247 (citation omitted).
Pennisi v. Reed, 2018 WL 3707835, *2 (M.D. Fla. Aug. 3, 2018)
(footnote and marks omitted).
the

defendant’s

construe
plaintiff.”

all

evidence
reasonable

If the plaintiff’s complaint and

conflict,

“the

inferences

district
in

favor

court

must

of

the

Thomas v. Brown, 504 F. App’x 845, 847 (11th Cir.

2013) (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.
1990)).

40

Florida’s long-arm statute authorizes general and specific
personal jurisdiction.

§ 48.193(1)-(2), Fla. Stat.

Section

48.193(2) addresses the exercise of general personal jurisdiction,
providing that “[a] defendant who is engaged in substantial and
not isolated activity within this state, whether such activity is
wholly interstate, intrastate, or otherwise, is subject to the
jurisdiction of the courts of this state, whether or not the claim
arises from that activity.”

In contrast, “specific personal

jurisdiction authorizes jurisdiction over causes of action arising
from or related to the defendant’s actions within Florida and
concerns a nonresident defendant’s contacts with Florida only as
those contacts related to the plaintiff’s cause of action.”

Louis

Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1352 (11th Cir.
2013) (citation omitted).
Best Western argues plaintiff has failed to meet her burden
of alleging sufficient facts to make out a prima facie case of
jurisdiction. (Doc. #18, p. 8.) Specifically, Best Western argues
the Court lacks both general and specific jurisdiction over it.
(Id. pp. 8-10.)

Plaintiff responds that the allegations are

sufficient to establish specific jurisdiction over Best Western
(Doc. #38, p. 14), and the Court agrees.
Section 48.193(1)(a)(2), Florida Statutes, provides that a
person “who personally or through an agent” commits a tortious act
within this state “thereby submits himself or herself . . . to the

41

jurisdiction of the courts of this state for any cause of action
arising from . . . [c]ommitting a tortious act within this state.”
“The statute expressly requires that the tort be committed in
Florida.”

Casita, L.P. v. Maplewood Equity Partners L.P., 960 So.

2d 854, 857 (Fla. 3d DCA 2007).

“In analyzing whether tortious

conduct has occurred within Florida, courts have looked to whether
the nonresident defendant committed a substantial aspect of the
alleged tort in Florida.”

NHB Advisors, Inc. v. Czyzyk, 95 So. 3d

444, 448 (Fla. 4th DCA 2012) (marks and citation omitted); see
also Internet Sols. Corp. v. Marshall, 557 F.3d 1293, 1296 (11th
Cir. 2009) (“For the purposes of the [long-arm] statute, the
defendant does not have to be physically present in Florida for
the tortious act to occur within that state.”); 3Lions Publ’g,
Inc. v. Interactive Media Corp., 389 F. Supp. 3d 1031, 1037 (M.D.
Fla. 2019) (“Under the long-arm statute, a nonresident defendant
need not have a physical presence in Florida for the Court to
assert

personal

jurisdiction.

Instead,

such

a

nonresident

defendant need only commit a tortious act that causes injury within
Florida.”

(citations omitted)).

Because the Court has found the allegations of an agency
relationship

between

sufficient,

the

Best

Court

Western

also

and

finds

R&M

the

and

Vocisano

Complaint

are

contains

allegations that Best Western committed tortious conduct within
Florida sufficient to establish specific jurisdiction.

42

See Faro

Techs. Inc. v. CimCore Corp., 2006 WL 4975982, *5 (M.D. Fla. June
27, 2006) (noting that “[i]n Florida, a corporation may be subject
to

jurisdiction

when

it

commits

a

tortious

act

or

transacts

business through its agents in the forum state”); see also Doe
S.W., 2020 WL 1244192, *3 (finding specific jurisdiction over Best
Western where the plaintiff alleged, inter alia, (1) that sex
trafficking

was

occurring

in

the

forum

and

Best

Western

was

willfully blind to its prevalence at hotel locations, (2) that
Best Western failed to adequately train and monitor its properties
in the forum while receiving profits from the forum hotels, and
(3) that there was “a causal connection between Best Western’s
activities managing hotels in [the forum] and the harm to plaintiff
as a result of her sex trafficking in these hotel locations”).
Therefore, the Court denies Best Western’s request to dismiss for
lack of personal jurisdiction.
Accordingly, it is now
ORDERED:
1. Defendant Best Western International, Inc.’s Motion to
Dismiss

Counts

I

–

IV

of

Plaintiff’s

Complaint

and

Memorandum in Support (Doc. #18) is DENIED.
2. Defendants

R&M

Real

Vocisano

Co-Tr’s

Estate

Motion

to

Company,
Dismiss

Inc.
with

and

Robert

Prejudice

Plaintiff’s Complaint and Memorandum in Support (Doc. #20)
is DENIED.

43

DONE AND ORDERED at Fort Myers, Florida, this
June, 2021.

Copies:
Parties of record

44

7th

day of