S.Y. v. Choice Hotels International, Inc. et al

Filing 63

ORDER denying 19 Motion to Dismiss and 21 Motion to Dismiss. Signed by Judge John E. Steele on 4/26/2021. (FWH)

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

Case No:

2:20-cv-622-JES-MRM

CHOICE HOTELS
INTERNATIONAL, INC. and R &
M REAL ESTATE COMPANY,
INC.,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant
Choice Hotels International, Inc.’s Motion to Dismiss Plaintiff’s
Third Amended Complaint with Prejudice (Doc. #19) filed on October
8, 2020, and defendant R&M Real Estate Company, Inc.’s Motion to
Dismiss

with

Prejudice

Plaintiff’s

Complaint

and

Incorporated

Memorandum of Law (Doc. #21) filed on October 12, 2020.

Plaintiff

filed an Opposition (Doc. #42) and a Memorandum in Opposition (Doc.
#43) on November 5, 2020, to which the defendants each filed a
Reply (Doc. #47; Doc. #48) on November 19, 2020.

For the reasons

set forth below, the motions are denied.
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 Comfort Inn & Executives Suites (the Comfort Inn Hotel) in
Naples, Florida between 2013 and February 2016.
22-24.)

(Id. ¶¶ 2, 13,

The Complaint alleges that during this time period the

Comfort Inn Hotel was owned and operated by defendant R&M Real
Estate Company, Inc. (R&M) as a franchisee of defendant Choice
Hotels International, Inc. (Choice).

2

(Id. ¶¶ 25-28, 49.)

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. 33-49.)

Counts One

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

(Id.)

II.
The motions to dismiss 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 in turn.
A. Shotgun Pleading
The Complaint identifies the defendants collectively as the
“Comfort Inn Defendants.”

(Doc. #1, p. 1 introductory paragraph.)

Both motions argue that because the Complaint groups them together,
it should be dismissed as a shotgun pleading.

(Doc. #19, pp. 12-

13; Doc. #21, p. 5.) 1

The page numbers refer to those generated by the Court’s
computer system upon filing (upper left-hand corner) and do not
always correspond with the page number at the bottom of the
document.
1

3

One way in which a complaint may constitute an impermissible
shotgun pleading is if it “assert[s] multiple claims against
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 “Comfort Inn 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.”
F.3d 940, 944 (11th Cir. 2000).

Kyle K. v. Chapman, 208

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 to
the “Comfort Inn Defendants.”

While defendants may disagree that

such allegations are accurate, that dispute is for another day.

4

The group allegations do not fail to state a claim, Auto. Alignment
& Body 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. 2
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
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

Both motions also argue the Complaint is a shotgun pleading
because each count impermissibly adopts allegations previously
asserted in the Complaint. (Doc. #19, pp. 11-12; Doc. #21, p. 5.)
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).
2

5

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
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.

6

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
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

7

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)
Choice

Plausible Allegations Re: § 1591 Violation

first

argues

that

plaintiff

fails

to

allege

an

underlying section 1591 violation by failing “to set out any facts
describing any criminal investigation, indictment, prosecution, or
conviction.”

(Doc. #19, p. 15.)

The Complaint alleges:

83. From approximately 2013 through February 2016,
Plaintiff S.Y. was recruited to, enticed to, solicited
to, held at, harbored as captive at and/or transported
to various hotels in Naples, Florida by her sex
traffickers to engage in commercial sex acts at these
hotels on a regular, consistent and/or repeated basis.
From approximately 2013 to 2014, Plaintiff S.Y. was
trafficked by an individual only known to Plaintiff as
Rambo, as well as other traffickers at the Comfort Inn
Hotel. Then from approximately 2015 to February 2016,
Plaintiff S.Y. was trafficked by Gregory Hines (aka
Bowlegs), Keith Lewis, Anthony Barrata and others at the
Comfort Inn Hotel.
(Doc. #1, ¶ 83.)

There is no requirement that the sex trafficker

have been convicted criminally to support a civil claim against
defendants for knowingly financially benefitting from the sex

8

trafficking,

and

Choice

provides

no

legal

support

for

this

argument. 3
Choice also argues that plaintiff has not alleged coercion
giving rise to an underlying violation of section 1591, asserting
that plaintiff was free to meet the “John” in the lobby, and she
could walk the hallways without confinement.

(Doc. #19, pp. 16-

17.)
For purposes of § 1591, “coercion” is defined as (1)
“threats of serious harm to or physical restraint
against any person;” (2) “any scheme, plan, or pattern
intended to cause a person to believe that failure to
perform an act would result in serious harm to or
physical restraint against any person”; or (3) “the
abuse or threatened abuse of law or the legal process.”
Id. § 1591(e)(2). “Serious harm,” in turn, is “any harm,
whether
physical
or
nonphysical,
including
psychological, financial, or reputational harm, that is
sufficiently
serious,
under
all
the
surrounding
circumstances, to compel a reasonable person of the same
background and in the same circumstances to perform or
to continue performing commercial sexual activity in
order to avoid incurring that harm.” Id. § 1591(e)(4).
United States v. Williams, 714 F. App’x 917, 918 (11th Cir. 2017).
The allegations in the Complaint are more than conclusory with
regard to the threats of serious harm or physical restraint, and
do not only allege sexual abuse and prostitution.
16-17.)

(Doc. #19, pp.

Some of the relevant allegations are as follows:

The only citation is to a case where the Complaint was found
sufficient and plaintiff therein was able to represent that her
trafficker had been indicted and sentenced. M.A. v. Wyndham Hotels
& Resorts, Inc., 425 F. Supp. 3d 959, 964 (S.D. Ohio 2019).
3

9

57. At all material times, each and every Comfort Inn
Defendant, as owners, operators, managers, supervisors,
controllers and/or entities otherwise responsible for
hotels, including the Comfort Inn Hotel, knew or should
have known that traffickers were harboring, raping and
assaulting victims at their hotels, including the
Comfort Inn Hotel, and were forcing them to engage in
“in call” services, wherein buyers (“Johns”) would come
to the hotels solely to purchase sex from these victims,
as well as “out call” services, wherein the buyer would
rent a hotel room and the trafficker would deliver the
victim to the buyer’s room to complete the sordid
transaction.
. . .
68. Each and every Comfort Inn Defendant, individually
and by and through their actual or apparent agents,
servants, franchisees, employees and/or staff, were
aware of and/or should have been aware of a number of
warning signs at their hotels, including the Comfort Inn
Hotel, that indicated the presence of human trafficking,
including but not limited to:
a. persons showing signs of malnourishment, poor
hygiene, fatigue, sleep deprivation, untreated
illness, injuries, and/or unusual behavior;
b. persons lacking freedom of movement or being
constantly monitored;
c. persons having no control over or possession of
money or ID;
d. persons dressing inappropriately for their age
or having lower quality clothing compared to
others in their party;
e. persons
requesting
room
or
housekeeping
services (additional towels, new linens, etc.),
but denying hotel staff entry into the room;
f. the presence of multiple computers, cell phones,
pagers, credit card swipers, or other technology
in the room;

10

g. persons extending stay with few or no personal
possessions in the room;
h. excessive amounts of sex paraphernalia in rooms
(condoms, lubricant, lotion);
i. the same person reserving multiple rooms;
j. a room being rented hourly, less than a day, or
for an atypical extended stay;
k. attempts of persons to sell items to or beg from
patrons or staff;
l. cars in the parking lot regularly parked
backward, so the license plates are not visible;
m. loitering and solicitation of male patrons;
n. individuals waiting at a table or bar and then
being picked up by a male (trafficker or
customer);
o. persons asking staff or patrons for food or
money; and
p. persons taking cash or receipts left on tables.
. . .
136. Plaintiff S.Y. was a hotel guest at the Comfort Inn
Hotel and Plaintiff was seriously and permanently
injured as a direct result of each and every Comfort Inn
Defendants’ acts and omissions, in that each and every
Comfort
Inn
Defendant
permitted,
harbored
and
facilitated illegal sex trafficking ventures to take
place at the Comfort Inn Hotel whereby the Plaintiff
S.Y. was routinely and continuously abused, battered,
falsely imprisoned, raped, beaten, starved, forcibly
injected with drugs and enslaved.
137. More specifically, at all material times, in the
quest for profits, the acts and omissions of each and
every Comfort Inn Defendant regarding the Comfort Inn
Hotel caused the Plaintiff to suffer:
a. Forced labor;

11

b. Forced confinement without safe means of escape;
c. Assault and fear;
d. Sickness, dizziness and headaches;
e. Cuts, lacerations, abrasions and other physical
harm;
f. Mental
anguish,
humiliation,
degradation and mental distress;

exploitation,

g. Suffocation, battery and rape;
h. Shock, fright and post-traumatic stress;
i. Overdose and drug-induced dangers (the Plaintiff
suffered drug overdoses, drug-induced actions
which caused harm to themselves [sic], physical
deformities and scarfing [sic] from actions of
the “Johns” and drug usage); and
j. Invasion
“Johns.”

of

privacy

(Doc. #1, ¶¶ 57, 68, 136-137.)
regurgitation

of

the

and

wrongful

entry

of

The allegations are not “simply a

statutes’

wording

woven

together

conclusory statements and a generous use of ‘and/or.’”

with

Kelsey v.

Goldstar Est. Buyers Corp., 2014 WL 1155253, at *6 (D. Or. Mar.
21, 2014).

The motion will be denied as plaintiff has stated

plausible facts in support of a section 1591 violation.
(b)
The

“Participation” in a “Venture”

defendants

argue

that

the

Complaint

lacks

well-pled

allegations that it participated in a “venture,” as required by
section 1595(a).

(Doc. #19, p. 23; Doc. #21, pp. 6-9.)

Drawing

on the definition of “venture” used in the criminal portion of the

12

statute, 18 U.S.C. § 1591(e)(6) 4, R&M asserts that a “venture”
requires two or more individuals “associated in fact.”

(Doc. #21,

p. 6.) Borrowing from the federal RICO definition of “enterprise,”
the defendants argue that “associated in fact” requires that
persons must operate as a “continuing unit that functions with a
common purpose.”

(Doc. #19, p. 23; Doc. #21, pp. 6-7.)

R&M

continues 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. 7) (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

trafficker.”

be

said

to

have

(marks omitted)).

a

tacit

agreement

with

the

R&M concludes 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 shared any common purpose or otherwise ‘associated in

“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).
4

13

fact.’”

(Doc.

#21,

p.

7.)

Similarly,

Choice

asserts

that

plaintiff has failed to allege it associated in fact with the nonparty traffickers.

(Doc. #19, p. 23.)

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
Comfort Inn Hotel to people” the defendants “knew or should have
known were engaged in sex trafficking.”

(Doc. #1, ¶ 160.)

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, 54-82, 115.)

The Court finds the allegations in the

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

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

it sufficient 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.”).

14

Choice and R&M 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. #19, pp. 18-19; Doc. #21, pp. 7-8.)

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
section 1595 claim under the TVPRA.”).

The defendants have not

identified any controlling authority to the contrary. 5
(c)

Knowingly Benefited From Participating in Venture

The motions next 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. #19, pp. 17-23; Doc. #21, p. 9.)

R&M argues

that the allegation that it benefited generally from the operation
of the hotel is insufficient for TVPRA liability.

(Doc. #21, p.

9.)

For the same reason, the Court denies Choice’s request for
the Court to “reconsider if the application of the definition of
‘participation in a venture’ as contained in § 1591 ought to apply
to § 1595.” (Doc. #19, p. 19.)
5

15

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 Comfort
Inn 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.”

(Doc. #1, ¶ 158.)

As to Choice

as franchisor, the Complaint alleges it “received a significant
franchise fee and continuous royalties on the Comfort Inn Hotel’s
gross revenue,” while also exercising “ongoing and systematic
control over operations at the Comfort Inn Hotel.” (Id. ¶¶ 43,
115.)

The Court finds such allegations sufficient to satisfy the

“knowingly benefitted” element.

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, 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.
(d)

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. #19, pp. 23-26; Doc. #21, pp. 10-12.)
“[a]t

most,”

the

Complaint’s

16

allegations

Choice argues that
address

Choice’s

constructive knowledge of prostitution and sex trafficking, but
not

the

sex

trafficking

of

plaintiff.

(Doc.

#19,

p.

25.)

Similarly, R&M argues the Complaint lacks plausible allegations
that it “knew or should have known” of any venture that trafficked
plaintiff.
The

(Doc. #21, p. 12.)

Court

disagrees

with

this

argument.

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.”

Iqbal, 556 U.S. at 686–87.

The Complaint

clearly satisfies this notice pleading standard.
Plaintiff has alleged that the following was “routine conduct
taking place at the Comfort Inn 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;
b. Plaintiff’s sex traffickers paid cash for the rooms
at the Comfort Inn Hotel where the Plaintiff engaged
in commercial sex acts;
c. Plaintiff’s sex traffickers booked extended stays at
the Comfort Inn 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;

17

e. Plaintiff was confined in the rooms at the Comfort
Inn 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 Comfort Inn 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 Comfort Inn Hotel that
was owned, operated, managed, supervised, controlled
and/or otherwise held responsible by each and every
Comfort Inn Defendant saw and/or reported to the
Comfort Inn 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 Comfort Inn Hotel were often stained
with Plaintiff’s blood and that of other trafficking
victims after they were 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;
k. Plaintiff would frequently request clean towels and
linens;
l. Plaintiff dressed in a sexually explicit manner and
would walk the hallways of the Comfort Inn Hotel in
inappropriate attire;
m. Plaintiff S.Y. and other trafficking victims were
often seen on the hotel’s balconies in inappropriate
attire or without any clothes at all;
n. Excessively loud noises would consistently come from
Plaintiff’s rooms;

18

o. During nighttime hours, Plaintiff and her “Johns” and
drug clients would create noise in the public area of
the Comfort Inn Hotel and, upon information and
belief, would be a disturbance to other guests using
the hotel for their intended purposes; 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 Comfort Inn Hotel, including as they related to
Plaintiff S.Y.” due to the following:
a. Requests by the traffickers to rent adjoining rooms;
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;
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. Operation of sex trafficking ventures out of the same
hotel room for multiple days or weeks in succession;
i. Multiple men per day coming and going from the same
rooms without luggage or personal possessions;
j. Knowledge of police and EMS activity at the Comfort
Inn Hotel and at other locations near the Comfort Inn
Hotel that was related to commercial sex work; and

19

k. Knowledge
that
Plaintiff
S.Y.
and
other
sex
trafficking victims were often seen naked and/or in
inappropriate attire on the hotel’s balconies.
(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.
(e)

Vicarious Liability

Finally, Choice argues the TVPRA claim should be dismissed
because “[t]here is no vicarious liability under the plain meaning
of the TVPRA.”

(Doc. #19, p. 26.)

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. Oct. 28, 2020)
(finding

plaintiff’s

vicarious

liability

claim

had

“alleged

sufficient facts to support a plausible claim that [defendants]
received

financial

benefits

from

a

venture

they

vicariously

participate in (through their franchisees) that the franchises
should have known was engaged in sex trafficking”).
Choice also argues that even if it could be held vicariously
liable under the TVPRA, plaintiff’s allegations are insufficient
to

establish

an

agency

relationship

20

between

Choice

and

its

franchisee.

(Doc. #19, p. 27.)

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

Choice

was

in

an

relationship with R&M during the relevant time period.
¶ 115.)

agency

(Doc. #1,

The Complaint further asserts that in a variety of ways

Choice exercised control over the means and methods of how R&M
conducted

business,

such

as

by

profit

sharing,

standardized

training, standardized rules of operation, regular inspection, and
price fixing.

(Id. ¶ 116.)

sufficient

support

to

relationship.

a

The Court finds such allegations

plausible

inference

of

an

agency

See S.Y., 476 F. Supp. 3d at 1258; A.B., 455 F.

21

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. 6
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 both
defendants under Florida’s civil RICO statute, section 772.104,
Florida Statutes.
statute,

plaintiff

(Doc. #1, p. 35.)
must

allege

To state a claim under the

plausible

facts

showing

“(1)

To the extent Choice 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
Choice and R&M, 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-to-day control
over its Philadelphia Airport hotels, but this is more properly
raised after discovery.”).
6

22

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)). 7
The defendants argue that plaintiff lacks standing because
personal injuries cannot be remedied by RICO.
Doc. #21, p. 16.)

(Doc. #19, p. 21;

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,

at *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 argues that because plaintiff fails “to specify

“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.”).
7

23

the particular subsection of Section 772.103 giving rise to a
Florida RICO claim,” the claim is defective.
13.)

(Doc. #21, pp. 12-

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
upon.

Section

772.103(3)

makes

it

unlawful

for

any

person

associated with any enterprise to conduct or participate in such
enterprise

through

Complaint,
participated

a

pattern

plaintiff

alleges

in

.

.

.

the

of

criminal

the

affairs

activity.

defendants
of

their

In

the

“conducted

or

respective

RICO

Enterprises through a pattern of numerous acts of racketeering
activity . . . in violation of Fla. Stat. § 772.103.”
¶ 166.)
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’s request

for dismissal on this basis.
Each of the motions also argue plaintiff has insufficiently
pled the enterprise element of her claim.
Doc. #19, pp. 13-15.)

(Doc. #19, pp. 28-31;

Florida’s RICO statute defines enterprise

24

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.”

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

25

scheme.”

(Doc. #1, ¶ 165.)

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. ¶¶ 165-66.)

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

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”).
Next, R&M argues plaintiff has failed to plead the claim with
the heightened level of specificity required for RICO claims.
(Doc. #21, p. 15.)

Plaintiff responds that because the RICO claim

is based on non-fraudulent predicate acts, the heightened pleading

26

requirement is not applicable.

(Doc. #42, p. 22.)

The Court

agrees with plaintiff.
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,

27

and immigration document fraud, and Rule 8 to “non-fraud predicate
acts,” such as human trafficking).
Choice next argues the RICO claim fails to plausibly allege
plaintiff’s harm was caused by Choice. 8

(Doc. #19, pp. 31-32.)

Under the Florida RICO statute, a plaintiff must demonstrate that
their injuries were proximately caused by the RICO violations.
See Bortell v. White Mountains Ins. Grp., Ltd., 2 So. 3d 1041,
1047 (Fla. 4th DCA 2009).
it

is

a

substantive

causation.”

“A wrongful act is a proximate cause if

factor

in

the

sequence

of

responsible

Green Leaf Nursery v. E.I. DuPont De Nemours & Co.,

341 F.3d 1292, 1307 (11th Cir. 2003) (marks and citation omitted).
Furthermore, a plaintiff “must show a ‘direct relation between the
injury asserted and the injurious conduct alleged.’”

Id. (quoting

Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268 (1992)).
“Indirect harm is insufficient to sustain a cause of action under
the RICO statutes.”
599

So.

2d

at

Bortell, 2 So. 3d at 1047; see also O’Malley,

1000

(“[I]ndirect

injuries,

that

is,

injuries

sustained not as a direct result of predicate acts . . . will not
allow recovery under Florida RICO.”).

While Choice states generally that plaintiff “failed to
plausibly allege a ‘pattern of racketeering activity,’” its
argument focuses solely on the causation issue. (Doc. #19, pp.
31-32.)
8

28

Choice argues that plaintiff has not alleged a direct relation
between her injuries and Choice’s purported violation of the RICO
statute, and that the conduct responsible for plaintiff’s alleged
harm was the actions of the traffickers and “Johns.”
pp. 31-32.)
proximate

(Doc. #19,

Plaintiff responds that she has sufficiently pled

cause

and

losses

as

a

direct

result

of

the

sex

trafficking enterprise by alleging she “was at the Comfort Inn as
part of the sexual trafficking scheme and her injuries were caused
by and in furtherance of the sexual trafficking scheme.”
#43, p. 34.)

(Doc.

Having reviewed the allegations in the Complaint,

the Court agrees with plaintiff.
The Complaint alleges each of defendants “was on notice of
repeated incidences of sex trafficking occurring on their hotel
premises,” and yet “failed to take the necessary actions to prevent
sex trafficking from taking place.”

(Doc. #1, ¶ 59.)

The

Complaint also alleges numerous ways in which the defendants could
have identified and prevented the sex trafficking from occurring.
(Id. ¶¶ 61-76.)
omissions

of

the

Finally, the Complaint alleges the “acts and
Comfort

Inn

Defendants

served

to

support,

facilitate, harbor, and otherwise further the traffickers’ sale
and

victimization”

of

plaintiff

“for

commercial

sexual

exploitation by repeatedly renting rooms to people they knew or
should have known were engaged in sex trafficking.”

(Id. ¶ 129.)

“[B]y knowingly, or with reckless disregard, repeatedly allowing

29

sex trafficking to occur on their premises between 2013 and 2016,”
the defendants’ “acts have yielded consistent results and caused
economic,

physical,

and

psychological

injuries”

to

plaintiff.

(Id. ¶¶ 168, 171.)
The Court finds these allegations sufficient to plead a
“direct relation between the injury asserted and the injurious
conduct alleged,” Holmes, 503 U.S. at 268, and therefore the
Complaint adequately pleads proximate cause, see Burgese, 101 F.
Supp. 3d at 422 (finding allegations of physical injury and mental
anguish “cognizable under the Florida RICO Act” and sufficient to
survive a motion to dismiss); cf. Berber, 2018 WL 10436236, *5
(“Because Plaintiffs’ asserted injuries arise from a set of actions
entirely

distinct

form

[sic]

the

alleged

predicate

RICO

violations, proximate cause is lacking as a matter of law.”).
Accordingly, the Court finds the Complaint’s Florida RICO
claim sufficiently plead and therefore will deny the motions to
dismiss the claim. 9

To the extent Choice argues plaintiff fails to state a
plausible claim for RICO conspiracy (Doc. #19, p. 32), the Court
finds this issue moot.
Although plaintiff uses the phrase
“conducted or participated in, and/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.
9

30

(3)

Premise Liability

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

(Doc. #1, p. 37.)

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, ¶¶ 181-95.)

Plaintiff also alleges the defendants had

actual or constructive knowledge of sex trafficking occurring on
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 conditions plaintiff was in.

(Id.

¶¶

186-88.)
(a)

Statute of Limitations

The motions argue the premise liability claim should be
dismissed

because

limitations.

it

is

barred

by

the

relevant

(Doc. #19, p. 33; Doc. #21, p. 17.)

statute

of

Under Florida

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

§ 95.11(3)(a), Fla. Stat.

31

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 Comfort
Inn

Hotel

“from

approximately

2013

and

continuing

through

approximately February of 2016.” (Doc. #1, ¶ 13.) Both defendants
argue

that

because

plaintiff

did

not

file

her

lawsuit

until

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

(Doc. #19, p. 33; Doc. #21, p. 17.)

“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).

32

“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 Comfort Inn 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
February 2016, and therefore she had until February 2020 to file
a complaint asserting premises liability.
(1) Choice
Plaintiff met this deadline by filing her First Amended
Complaint against Choice 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

33

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

from

the

face

of

the

Complaint that the claim is time-barred, dismissal based upon the
statute of limitations affirmative defense is not appropriate.
For the same reasons, the Court rejects the argument that
plaintiff’s negligent hiring, supervision, and retention claim
against

Choice

limitations.

is

also

barred

by

the

four-year

statute

of

(Doc. #19, p. 33.)

(2) R&M
R&M

was

Complaint.
2020.

not

named

in

the

December

2019

First

Amended

Rather, it was first added as a defendant in April

S.Y. et al v. Naples Hotel Co. et al, Case No. 2:20-cv-118

34

(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.
F.3d at 845.

La Grasta, 358

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. 10

Therefore, the motion to dismiss is denied

at this stage of the proceedings.
To the extent R&M seeks dismissal of the other negligent
claims on the same grounds (Doc. #21, p. 17), the Court’s ruling
applies to those claims as well. 11
(b)
Both

Failure to State a Claim

defendants

insufficiently pled.

argue

the

premise

liability

claim

is

Choice argues the claim fails because the

“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.
10

R&M also suggests the negligence-based claims fail because
plaintiff does not allege the specific dates upon which the acts
occurred. (Doc. #21, p. 17). The Court disagrees. 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.”).
11

35

Complaint does not plausibly allege that Choice possessed or
controlled the Comfort Inn Hotel.
Court disagrees.

(Doc. #19, pp. 37-38.)

As noted, a premise liability claim requires a

defendant possess or control the premises at issue.
So. 2d at 37.
“owners,

The

Lisanti, 787

Here, the Complaint alleges the defendants were the

operators,

managers,

supervisors,

controllers

and

innkeepers” of the Comfort Inn Hotel, and that Choice exercised
control over the means and methods of how R&M conducted business
at the hotel. 12

(Doc. #1, ¶¶ 28, 116.)

While Choice may dispute

these allegations, the Court must accept them as true at this stage
of the proceedings and finds them sufficient to allege Choice had

Attached to Choice’s motion are various documents, such as
a State of Florida application to transact business by a foreign
corporation, numerous Collier County permits for repairs, and
Collier County tax records, that list R&M as the owner of the hotel
property.
(Doc. #19-1, pp. 42-69.)
Choice requests the Court
take judicial notice of these records to prove “the undisputed
fact that Choice is not the owner or operator of the Comfort Inn
Hotel.”
(Doc. #19, p. 8.)
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”).
First, the
Complaint clearly alleges both Choice and R&M were the “owners,
operators, managers, supervisors, controllers and innkeepers” of
the Comfort Inn Hotel (Doc. #1, ¶ 28), and therefore there is a
dispute as to this issue. Second, and more importantly, the Court
has
found
the
Complaint
sufficiently
alleges
an
agency
relationship between Choice and R&M. Accordingly, whether R&M is
listed on public records as the owner of the Comfort Inn Hotel is
not dispositive to any of the claims alleged against Choice in the
Complaint.
12

36

sufficient control of the Comfort Inn Hotel for premise liability
purposes.
R&M argues there could be no duty to protect plaintiff from
the criminal conduct of third parties because such conduct was not
foreseeable.

(Doc. #21, pp. 17-18.)

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.
The

Complaint

Such knowledge must

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

contains

sufficient

allegations

that

sex

trafficking was occurring at the Comfort Inn Hotel and that the
defendants knew or should have known of it.
98-108, 159.)

(Doc. #1, ¶¶ 54-60,

The Complaint also contains sufficient allegations

to support a claim of an agency relationship between Choice and
R&M, and any factual challenge to such a relationship is premature.
See Cain, 994 F. Supp. 2d at 1253; Mobil Oil Corp., 648 So. 2d at

37

120. Accordingly, the Court finds the allegations in the Complaint
are sufficient to satisfy the notice pleading requirements.
(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. 42.)

(Doc.

The motions seek dismissal of the claim based on

pleading deficiencies.

Both defendants first argue plaintiff has

improperly lumped multiple claims together.
34; Doc. #21, p. 18.)

(Doc. #19, pp. 33-

“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
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

38

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).
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, ¶¶ 202-03.)

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

39

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.

¶¶

205-07.)

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. ¶¶ 208-12.)

The Court

finds these allegations sufficient to state plausible claims for
negligent hiring, and negligent supervision/retention.
Both motions further argue the claim should be dismissed
because the Complaint does not identify the alleged employees at
issue.

(Doc. #19, pp. 34-35; Doc. #21, p. 19.)

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.”
07.)

(Doc. #1, ¶¶ 202, 206-

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).

40

The Court finds that

Accordingly,

specific employees are not required to be named. 13

the Court 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.

(Doc. #1, p. 45.)

The Complaint alleges R&M,

as the owner and operator of the Comfort Inn 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
Comfort

Inn

Hotel

and

to

rescue

their

[sic]

hotel

guests,

specifically Plaintiff S.Y., from the peril they [sic] created.”
(Id. ¶¶ 215, 218, 224.)
acts

and

continuous

omissions,
sex

breached

trafficking

foreseeable result.
negligent

R&M

The Complaint alleges that by various

rescue

of

these

plaintiff

duties
was

the

(Id. ¶¶ 220-22, 226-27, 229.)
claim

insufficiently pled.

should

be

dismissed

and

that

the

direct

and

R&M argues the
because

it

is

(Doc. #21, p. 20.)

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,

To the extent Choice suggests it did not hire any of the
employees at the hotel, the Complaint alleges that Choice made
“employment decisions” for the hotel. (Doc. #1, ¶¶ 116.)
13

41

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

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 argues 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 knew
plaintiff was in need of aid.
Court

finds

the

Complaint

satisfy this requirement.
(6)

(Doc. #21, p. 20.)

contains

sufficient

However, the

allegations

to

(Doc. #1, ¶¶ 99, 100, 225.)

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.

(Doc. #1, p. 47.)

The Complaint accuses

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

(Id. ¶ 230.)

R&M argues that the

claim must be dismissed because it is overly vague, fails to

42

articulate a cognizable, independent cause of action, and lacks
well-pled factual allegations.

(Doc. #21, p. 21.)

The Court

disagrees.
Florida

courts

have

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

14,

are

“[A]llegations which demonstrate merely constructive
knowledge, recklessness or gross negligence cannot satisfy the
14

43

sufficient to state a claim.

Therefore, the Court denies R&M’s

request for dismissal.
C. Anonymity
Finally, Choice argues that plaintiff is not entitled to
proceed anonymously as a matter of right, and that plaintiff must
be required to file a formal motion to do so.
On

February

24,

2021,

plaintiff

filed

a

(Doc. #19, p. 39.)
Motion

to

Anonymously and for Entry of a Protective Order.

Proceed

(Doc. #55.)

Therefore, this issue is moot.
Accordingly, it is now
ORDERED:
1. Defendant Choice Hotels International, Inc.’s Motion to
Dismiss

Plaintiff’s

Third

Amended

Complaint

with

Prejudice (Doc. #19) is DENIED.
2. Defendant
Dismiss

R&M
with

Real

Estate

Prejudice

Company,

Inc.’s

Plaintiff’s

Motion

Complaint

to
and

Incorporated Memorandum of Law (Doc. #21) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this

26th

day of

April, 2021.

‘knowledge’ element of an aiding and abetting claim under Florida
law.” Angell, 2019 WL 3958262, *9.

44

Copies:
Parties of record

45