S.Y. v. Wyndham Hotels & Resorts, Inc. et al
ORDER denying 16 Motion to Dismiss and Motion to Strike; denying 17 Motion to Dismiss for Failure to State a Claim; denying 21 Motion to Dismiss. Signed by Judge John E. Steele on 2/16/2021. (FWH)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WYNDHAM HOTELS & RESORTS,
INC., HANUMAN OF NAPLES,
NAPLES, LLC, and HOLIDAY
OPINION AND ORDER
This matter comes before the Court on review of the following
three motions to dismiss: (1) defendant H.I. Naples, LLC’s Motion
Incorporated Memorandum of Law (Doc. #16), filed on September 22,
2020; (2) defendant Wyndham Hotels & Resorts, Inc.’s Motion to
Dismiss Plaintiff’s Complaint (Doc. #17), filed on September 30,
2020; and (3) defendant Hanuman of Naples, LLC’s Motion to Dismiss
Plaintiff’s Complaint, Motion to Strike, and Memorandum of Law in
Support Thereof (Doc. #21), filed on October 2, 2020.
filed a Memorandum in Opposition to each motion (Doc. #31; Doc.
#38; Doc. #39) on October 20th, November 4th, and November 6, 2020.
Defendant Wyndham Hotels & Resorts, Inc. filed a Reply (Doc. #46)
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on November 30, 2020.
For the reasons set forth below, the motions
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.
On April 15, 2020, the plaintiffs filed a Second
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).
the Court’s severance order, plaintiff and the other alleged victim
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 Days Inn Hotel in Naples, Florida (the Days Inn Hotel)
between 2013 and February 2016.
(Id. ¶¶ 14, 23-25.)
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alleges that during this time period the Days Inn Hotel was
operated by various entities as franchisees of defendant Wyndham
Hotels & Resorts, Inc. (Wyndham). 1
The Days Inn Hotel was operated
by defendant Hanuman of Naples, LLC (Hanuman) from an unspecified
date until 2015.
(Id. ¶¶ 26, 27.)
In 2015 Hanuman sold the Days
Inn Hotel to defendant H.I. Naples, LLC (H.I. Naples), which
operated the hotel until 2016.
(Id. ¶¶ 27, 28.)
In 2016 H.I. Naples sold the Days
In 2019, Shree sold the Days Inn Hotel
to a non-party, who converted it to a Holiday Inn Express and
operated it as a franchisee of defendant Holiday Hospitality
(Id. ¶ 34.)
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)
coercion, and criminal enterprise.
(Id. pp. 35-53.)
The Complaint alleges that Wyndham is the franchisor of the
Days Inn hotel brand (Doc. #1, ¶¶ 26, 49-63), while Wyndham asserts
that it is the “ultimate parent company of the franchisor of the
Days Inn® brand of hotels.” (Doc. #17, p. 2.) At this stage of
the proceedings, factual disputes are resolved in favor of the
allegations in the Complaint.
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through Four are asserted against each defendant, while Counts
Five and Six are asserted against only Hanuman, Shree, and H.I.
The H.I. Naples, Wyndham, and Hanuman 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 in turn.
A. Shotgun Pleading
Wyndham and Hanuman both argue the Complaint must be dismissed
as a shotgun pleading.
(Doc. #17, pp. 5-6; Doc. #21, pp. 5-6.) 2
The Complaint identifies Wyndham, Hanuman, Shree, and H.I.
Naples collectively as the “Days Inn Defendants.”
(Doc. #1, p. 1
Wyndham and Hanuman argue that because
the Complaint groups these four defendants together, it should be
dismissed as a shotgun pleading.
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 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
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Sheriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015); see also
Barmapov v. Amuial, 2021 WL 359632, *2 (11th Cir. Feb. 3, 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).
defendants collectively as the “Days Inn Defendants.”
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
A fair reading of the Complaint is that each of these
defendants was involved in the identified conduct attributed to
the “Days Inn Defendants.”
While defendants may disagree that
such allegations are accurate, that dispute is for another day.
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.
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B. Redundant and Immaterial Factual Allegations
H.I. Naples and Hanuman argue that the Complaint is “replete
with redundant and conclusory allegations” that each defendant
“knew or should have known of the prevalence of sex trafficking at
hotels and motels, knew or should have known sex trafficking and
other illegal activities were occurring at its hotel, and failed
to take actions to prevent them from occurring so it could earn a
(Doc. #16, pp. 3-4; Doc. #21, p. 6.)
H.I. Naples and
Hanuman request the Court strike such allegations, arguing they
are redundant and immaterial, constitute an impermissible attempt
to “puff” the facts against the defendants, and serve only to
confuse the issues and cause prejudice.
Pursuant to Rule 12(f), a party may move to strike “any
redundant, immaterial, impertinent, or scandalous matter” within
The Court enjoys broad discretion in determining
whether to grant or deny a motion to strike.
Anchor Hocking Corp.
v. Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla.
“The purpose of a motion to strike is to clean up the
pleadings, streamline litigation, and avoid unnecessary forays
into immaterial matters.”
Hutchings v. Fed. Ins. Co., 2008 WL
4186994, *2 (M.D. Fla. Sept. 8, 2008) (marks and citation omitted).
It is not intended to “procure the dismissal of all or part of a
A motion to strike is a drastic remedy and is
disfavored by the courts.
Schmidt v. Life Ins. Co. of N. Am., 289
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F.R.D. 357, 358 (M.D. Fla. 2012).
Therefore, a motion to strike
should be granted only if “the matter sought to be omitted has no
possible relationship to the controversy, may confuse the issues,
or otherwise prejudice a party.”
defendants knew or should have known a great number of things.
Allegations regarding the defendants’ knowledge of the prevalence
of sex trafficking at hotels in general and at their hotel in
particular, and the failure to prevent it, are relevant to the
types of claims plaintiff asserts.
S.Y., 476 F. Supp. 3d at 1259
The Court does not find that the allegations identified by
defendants are overly redundant or unduly prejudicial, and the
“drastic remedy” of striking the allegations is not justified.
Accordingly, the request to strike the allegations is denied.
C. Failure to State a Claim
Each defendant argues certain claims should be dismissed due
to plaintiff’s failure to state a claim upon which relief may be
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
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
To survive dismissal, the factual allegations
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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).
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
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
Factual allegations that are merely
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
determine whether they plausibly give rise to an entitlement to
Iqbal, 556 U.S. at 679.
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Trafficking Victims Protection Reauthorization Act
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.
only violation of Chapter 77 relevant to this case is contained in
18 U.S.C. § 1591(a), which provides in relevant part:
Whoever knowingly –
(1) in or affecting interstate or foreign commerce .
. . recruits, entices, harbors, transports, provides,
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
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
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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)).
Wyndham argues the Complaint’s allegations are insufficient
to state a claim under section 1595(a), asserting four pleading
(Doc. #17, pp. 6-13.)
“Participation” in a “Venture”
allegations that it participated in a “venture,” as required by
(Doc. #17, p. 6-10.)
Drawing on the definition
of “venture” used in the criminal portion of the statute, 18 U.S.C.
§ 1591(e)(6) 3, Wyndham asserts that a “venture” requires two or
“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).
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more individuals “associated in fact.” 4
(Doc. #17, pp. 6-7.)
Wyndham argues that “associated in fact” requires that persons
must operate as a “continuing unit that functions with a common
(Id. p. 7.)
Wyndham 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. 8) (quoting
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
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.”
Wyndham concludes that “[a] commercial relationship,
such as a hotel owner renting a hotel room, does not give rise to
a reasonable inference that the participants in such a relationship
Wyndham notes that it is not seeking to impute the definition
of “participation in a venture” from the criminal provision in
section 1591(e)(4), but suggesting that the Court should apply the
definition of “venture” for section 1591(e)(6) and the ordinary
meaning of the term as construed by at least two appellate courts.
(Doc. #17, p. 10 n.4.)
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shared a common purpose or otherwise ‘associated in fact.’”
#17, p. 8.)
Here, the Complaint alleges Wyndham participated in a venture
“by engaging in a pattern of acts and omissions that were intended
traffickers’ sale and victimization of the Plaintiff S.Y. for
commercial sexual exploitation by repeatedly renting rooms at Days
Inn Hotel to people” Wyndham “knew or should have known were
engaged in sex trafficking.”
(Doc. #1, ¶ 171.) 5
also alleges why Wyndham should have been on notice of the sex
trafficking and how it failed to prevent it.
(Id. ¶¶ 5-17, 64-
The Court finds the allegations in the Complaint
sufficient to allege participation in a venture under section
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
Defendants ‘participated in a venture’ under § 1595 by alleging
Wyndham cites the same paragraph in its motion, but fails
to recite the complete sentence. (Doc. #17, p. 9.)
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that Defendants rented rooms to people it knew or should have known
where [sic] engaged in sex trafficking.”).
requires an allegation of an overt act in furtherance of the
venture, and that failure to prevent sex trafficking is not such
an overt act.
(Doc. #17, pp. 8-9.)
The Court is not convinced.
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
Accordingly, plaintiffs’ failure to allege such
actual participation is not fatal to its section 1595 claim under
the TVPRA.”). Wyndham has not identified any controlling authority
to the contrary.
Knowingly Benefited From Participating in Venture
Wyndham next argues that the Complaint insufficiently alleges
that it knowingly benefitted from participating in a venture that
committed TVPRA crimes, with knowledge of the causal relationship.
(Doc. #17, p. 10.)
Wyndham asserts that the allegation that it
financially benefited from its relationship with the franchisees
because it received franchise fees is insufficient, since that
money is not “from” any act by Wyndham that could plausibly
constitute “participation” in a TVPRA “venture”.
(Id. at pp. 10-
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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 Days
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, ¶ 169.)
significant franchise fee and continuous royalties on the Days Inn
systematic control over operations at the Dyas Inn Hotel.” (Id. ¶¶
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.
Committing Sex Trafficking Crimes
Wyndham argues the Complaint fails to plausibly allege that
it knew or should have known that the “venture” was engaging in
sex-trafficking crimes, i.e., that Wyndham 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. #17, p.
Rather, Wyndham argues, the Complaint only alleges that
the hotel staff did not interfere with plaintiff and witnessed
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indicia of commercial sex activity.
(Id. p. 11.)
that the allegations do not give rise to a reasonable inference
that it knew or should have known about any commercial sex activity
at the Days Inn Hotel, let alone that it was forced activity.
“knowledge, and other conditions of a person’s mind may be alleged
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.
clearly satisfies this notice pleading standard.
Plaintiff has alleged that the following was “routine conduct
taking place at the Days Inn Hotel as a result of the human sex
a. Plaintiff’s sex traffickers frequently rented rooms
at the hotel close to each other;
b. Plaintiffs’ [sic] sex traffickers paid cash for the
rooms at the Days Inn Hotel where the Plaintiff
engaged in commercial sex acts;
c. Plaintiff’s sex traffickers booked extended stays at
the Days 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
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e. Plaintiff was confined in the rooms at the Days 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 Days Inn Hotel where the Plaintiff was engaged
in illegal commercial sex acts at all times of day
h. The staff and customers at the Days Inn Hotel that
was owned, operated, managed, supervised, controlled
and/or otherwise held responsible by each and every
Days Inn Defendant saw that the rooms where the
Plaintiff engaged in commercial sex acts were messy,
and contained sex and drug paraphernalia and had an
i. Days Inn Hotel manager known to Plaintiff as Kurt and
another hotel employee participated directly in the
sex trafficking activity while employed by the Days
Inn Defendants. These hotel employees routinely paid
Plaintiff’s traffickers to have forced sex with
j. Plaintiff S.Y. was tortured and raped in the Days Inn
Hotel rooms as well as the laundry room on the Days
Inn Hotel property;
k. The rooms at the Days Inn Hotel were filled with
evidence of sex trafficking and drug use;
l. Plaintiff’s sex traffickers consistently refused
housekeeping services and otherwise would prohibit
staff from entering their rooms and the Plaintiff’s
m. Plaintiff would frequently request clean towels and
n. Plaintiff dressed in a sexually explicit manner and
would walk the hallways of the Days Inn Defendant;
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o. Excessively loud noises would consistently come from
p. During nighttime hours, Plaintiff and her “Johns” and
drug clients would create noise at the Days Inn Hotel
and, upon information and belief, would be a
disturbance to other guests using the hotel for their
intended purposes; and
q. While at the hotel, the Plaintiff displayed clear
signs of physical abuse, diminished personal hygiene,
submissiveness and inappropriate attire.
(Doc. #1, ¶ 107.)
Further, the Complaint alleges Wyndham, along
with the other defendants, “knew or should have known about the
nature of the sex trafficking venture at the Days Inn Hotel,
including as they related to Plaintiff S.Y.” due to the following:
a. Requests by the traffickers to rent rooms near exit
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
e. Excessive requests for towels and linens in the rooms
used for sex trafficking;
f. Hotel staff observing Plaintiff
traffickers in the hotel;
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;
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j. Hotel staff directly participating
trafficking of Plaintiff S.Y.; and
k. Knowledge of police and EMS activity at the Days Inn
Hotel and at other locations near the Days Inn Hotel
that was related to commercial sex work.
(Id. ¶ 170.)
The Court finds these allegations sufficient to reasonably
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.
Finally, Wyndham suggests the TVPRA claim should be dismissed
because “[v]icarious liability is not viable under the TVPRA”.
(Doc. #17, p. 13.)
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
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Wyndham also argues that even if it could be held vicariously
liable under the TVPRA, plaintiff’s allegations “do not give rise
to a plausible inference of an agency relationship” between Wyndham
and the franchisees.
(Doc. #17, p. 14.)
Wyndham argues that
because the Landham Act requires some degree of supervision by a
franchisor, such supervision cannot be the basis for liability.
(Id. at 14-16.)
The Court finds that the allegations in the
Complaint do create such a plausible inference.
“It is well-established that a franchise relationship does
not by itself create an agency relationship between the franchisor
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
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).
relevant time period.
(Doc. #1, ¶ 122.)
The Complaint further
asserts that in a variety of ways Wyndham exercised control over
the means and methods of how those defendants conducted business,
such as by profit sharing, standardized training, standardized
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rules of operation, regular inspection, and price fixing.
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. 6
Because the allegations in the Complaint are sufficient to
state a claim under section 1595 of the TVPRA, the Court denies
Wyndham’s motion for dismissal pursuant to Rule 12(b)(6).
Wyndham also suggests such a relationship does not in fact
exist, but 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
Cain, 994 F. Supp. 2d at 1253.
Since the Complaint
alleges an agency relationship based upon the interaction between
Wyndham and the other defendants, 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.
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.”).
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Florida RICO Violation
defendants under Florida’s civil RICO statute, section 772.104,
(Doc. #1, p. 37.)
To state a claim under the
conduct or participation in an enterprise through (2) a pattern of
Horace-Manasse v. Wells Fargo Bank, N.A.,
521 Fed. App’x 782, 784 (11th Cir. 2013) (quoting Lugo v. State,
845 So. 2d 74, 97 (Fla. 2003)). 7
Each of the motions argue plaintiff has insufficiently pled
the enterprise element of her claim.
pp. 17-18; Doc. #21, p. 7.)
(Doc. #16, p. 4; Doc. #17,
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.
association-in-fact enterprise is simply a continuing unit that
functions with a common purpose.”
U.S. 938, 948 (2009).
Boyle v. United States, 556
To sufficiently plead such an enterprise,
“a plaintiff must allege that a group of persons shares three
“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.”).
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 22 of 43 PageID 406
structural features: (1) a purpose, (2) relationships among those
associated with the enterprise, and (3) longevity sufficient to
Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020)
(marks and citations omitted).
The motions argue the Complaint
(Doc. #16, p. 4; Doc. #17, p. 18; Doc. #21, p. 7.)
“The purpose prong contemplates ‘a common purpose of engaging
Cisneros, 972 F.3d at 1211 (quoting United States
purpose, such as a generally shared interest in making money, will
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.”
Here, the Complaint alleges Wyndham, Hanuman, Shree and H.I.
Naples “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, ¶ 179.)
Florida’s RICO statute, and that the defendants conducted or
participated in their enterprises through a pattern of criminal
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 23 of 43 PageID 407
institutionalized sex trafficking scheme.”
(Id. ¶¶ 179-80.)
Court finds these allegations sufficient to allege the 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
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”).
sufficiently plead the “pattern of criminal activity” element.
(Doc. #16, pp. 4-5; Doc. #17, pp. 18-19; Doc. #21, pp. 7-8).
previously stated, “[i]n order to state a civil cause of action
under the Florida RICO Act, a plaintiff must allege a pattern of
Arthur v. JP Morgan Chase Bank, NA, 569 Fed.
App’x 669, 682 (11th Cir. 2014) (citing §§ 772.103-104, Fla.
The statute’s definition of “criminal activity” provides
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 24 of 43 PageID 408
“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.”
§ 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, accomplices,
victims, or methods of commission’ that occurred within a fiveyear time span.”
Id. at 680 (citing § 772.102(4), Fla. Stat.).
As noted by Wyndham (Doc. #17, p. 19), plaintiff’s Florida
RICO claim is predicated on the commission of human trafficking
crimes in violation of section 787.06, Florida Statutes.
#1, ¶¶ 181, 183); 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 statute).
provides various punishments for “[a]ny person who knowingly, or
in 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.”
Given the similarity between this language and the
TVPRA’s civil liability provision, Wyndham argues the Florida RICO
claim fails “for the same reasons that Plaintiff failed to state
a TVPRA claim.”
(Doc. #17, p. 19.)
The Court has, however,
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 25 of 43 PageID 409
therefore rejects Wyndham’s argument as to the Florida RICO claim.
H.I. Naples and Hanuman also argue the RICO claim must be
dismissed because the Complaint groups the defendants together,
and therefore it does not plausibly allege the defendants committed
two or more predicate acts.
The Court disagrees.
(Doc. #16, p. 5; Doc. #21, pp. 7-8.)
The Complaint, which contains the general
dates in which each defendant controlled the Days Inn Hotel,
alleges sex trafficking occurred “repeatedly” at the Days Inn Hotel
between 2013 and February 2016, and provides examples of the times
in which plaintiff herself was trafficked at the hotel.
¶¶ 93, 99, 182.)
Viewing the allegations in the light most
favorable to plaintiff, the Court finds this sufficient to allege
two or more predicate acts.
Finally, H.I. Naples and Hanuman argue the Complaint contains
insufficient allegations regarding causation.
Doc. #21, p. 8.)
(Doc. #16, p. 5;
Under the Florida RICO statute, a plaintiff must
demonstrate that their injuries were proximately caused by the
See Bortell v. White Mountains Ins. Grp., Ltd.,
2 So. 3d 1041, 1047 (Fla. 4th DCA 2009).
“A wrongful act is a
proximate cause if it is a substantive factor in the sequence of
Green Leaf Nursery v. E.I. DuPont De
Nemours & Co., 341 F.3d 1292, 1307 (11th Cir. 2003) (marks and
Furthermore, a plaintiff “must show a ‘direct
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 26 of 43 PageID 410
relation between the injury asserted and the injurious conduct
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.”
Bortell, 2 So. 3d at
1047; see also O’Malley, 599 So. 2d at 1000 (“[I]ndirect injuries,
that is, injuries sustained not as a direct result of predicate
acts . . . will not allow recovery under Florida RICO.”).
H.I. Naples and Hanuman assert that because they are only
“accused of profiting from the sex trafficking venture as passive
participants,” “any alleged injuries are not the direct result of
(Doc. #16, p. 5; Doc. #21, p. 8.)
consequential damages by alleging she “was at the Days Inn as part
of the sexual trafficking scheme and her injuries were caused by
and in furtherance of the sexual trafficking scheme.”
pp. 12-13; Doc. #39, p. 14.)
Having reviewed the allegations in
the Complaint, the Court agrees with plaintiff. 8
Unlike the federal RICO statute, “the Florida statute does
not expressly limit recovery . . . to persons who have suffered
injury to their ‘business or property,’ language which has been
interpreted to exclude economic losses arising out of personal
injuries.” Berber v. Wells Fargo Bank, N.A., 2018 WL 10436236, *3
(S.D. Fla. May 24, 2018); see also Townsend v. City of Miami, 2007
WL 9710944, *2 (S.D. Fla. Nov. 7, 2007) (“Unlike its federal
counterpart, the Florida RICO statute is not limited to ‘business
or property’ injuries. . . . The plain language of the Florida
statute does not exclude pecuniary losses resulting from personal
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 27 of 43 PageID 411
The Complaint alleges each of the Days Inn Hotel defendants
“was on notice of repeated incidents of sex trafficking occurring
on their hotel premises,” and yet “failed to take the necessary
actions to prevent sex trafficking from taking place.”
The Complaint also alleges numerous ways in which these
defendants could have identified and prevented the sex trafficking
(Id. ¶¶ 71-86.)
Finally, the Complaint alleges
the “acts and omissions of the Days Inn Defendants served to
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.”
“[B]y knowingly, or with reckless disregard, repeatedly
allowing 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
(Id. ¶¶ 182, 185.)
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.
injury. Accordingly, Mr. Townsend can sue under the Florida RICO
statute for his loss of employment and personal injuries.”).
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 28 of 43 PageID 412
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
violations, proximate cause is lacking as a matter of law.”).
Count Three of the Complaint asserts a claim of premise
liability against all the defendants.
(Doc. #1, p. 40.)
liability claim is a form of negligence action.
“The elements for
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, ¶¶ 198-212.)
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.
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 29 of 43 PageID 413
Statute of Limitations
The three motions argue the premise liability claim should be
(Doc. #16, pp. 5-6; Doc. #17, p. 22; Doc. #21, pp.
8-9.) 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).
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 Days
Inn Hotel “[f]rom approximately 2013 through February 2016.” (Doc.
#1, ¶ 93.)
Wyndham argues that because the Complaint was filed in
August 2020, the premise liability claim is time barred.
#17, p. 22.)
“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 §
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 30 of 43 PageID 414
95.031, Fla. Stat.).
“A cause of action accrues when the last
element constituting the cause of action occurs.”
“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).
trafficking at the Days Inn Hotel between 2013 and February 2016.
continuing tort doctrine.
See Nat’l Sourcing, Inc. v. Bracciale,
2018 WL 6172430, *2 (M.D. Fla. Nov. 26, 2018) (finding allegation
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.
Plaintiff met this deadline by filing her First Amended
Complaint against Wyndham on December 31, 2019.
S.Y. et al v.
Naples Hotel Co. et al, Case No. 2:20-cv-118 (Doc. #3).
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 31 of 43 PageID 415
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
relation-back provisions of Rule 15(c) of the Federal Rules of
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).
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 Wyndham’s arguments
claim is also barred by the four-year statute of limitations.
(Doc. #17, p. 22.)
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 32 of 43 PageID 416
(2) H.I. Naples and Hanuman
H.I. Naples and Hanuman argue the premise liability claim is
barred because plaintiff did not bring her claims against them
until April 2020.
(Doc. #16, p. 6; Doc. #21, pp. 8-9.)
defendants were not named in the December 2019 First Amended
Complaint to which a severance was granted.
Instead of responding directly to the argument, plaintiff
requests the Court permit discovery to occur rather than dismiss
the claims. (Doc. #31, p. 18; Doc. #39, p. 19.) Plaintiff suggests
the claims may relate back to the December 31, 2019 First Amended
Complaint, the date she first identified the Days Inn Hotel and
named Wyndham as a defendant.
(Doc. #31, pp. 16-18; Doc. #39, pp.
For example, plaintiff argues that H.I Naples and Hanuman
may have been notified by Wyndham when the suit was originally
See Brown v. VCNA Prestige Concrete Prods., Inc.,
2014 WL 1293266, *2 (M.D. Fla. Mar. 31, 2014) (stating that to
find a complaint relates back under the Federal Rules of Civil
Procedure when a plaintiff adds a formerly unnamed defendant, “the
proper party must have received notice of the action such that it
will not be prejudiced”).
As noted, plaintiff is not required to negate an affirmative
defense in her complaint.
La Grasta, 358 F.3d at 845.
It is not
apparent from the face of the Complaint that the claim is time-
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 33 of 43 PageID 417
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. 9
the motion to dismiss is denied at this stage of the proceedings.
Plaintiff’s request for discovery is moot since discovery will be
available in due course.
To the extent H.I. Naples and Hanuman seek dismissal of the
other negligent claims on the same grounds (Doc. #16, pp. 6-7;
Doc. #21, pp. 9-11), the Court’s ruling applies to those claims as
Failure to State a Claim
Wyndham argues the premise liability claim is insufficiently
pled because it fails to allege (1) that Wyndham possessed or
controlled the Days Inn Hotel, or (2) that Wyndham knew or should
have known of a dangerous condition or dangerous propensity. (Doc.
#17, pp. 19-20.)
The Court finds that the Complaint sufficiently
As noted, a premise liability claim requires a defendant to
possess or control the premises at issue.
Lisanti, 787 So. 2d at
“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.
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Here, plaintiff alleges Wyndham and other defendants were the
innkeepers” of the Days Inn Hotel, and that Wyndham exercised
control over the means and methods of how its franchisees conducted
business at the hotel.
(Doc. #1, ¶¶ 32, 123.)
While Wyndham may
dispute these allegations, the Court must accept them as true at
this stage of the proceedings and finds them sufficient to allege
Wyndham had sufficient control of the Days Inn Hotel for premise
Wyndham also suggests plaintiff’s claim fails because it
insufficiently alleges Wyndham knew or should have known either of
propensity of a particular patron.
(Doc. #17, p. 20.)
knowledge must only be pled generally, Fed. R. Civ. P. 9(b), and
the allegations in the Complaint are sufficient to satisfy the
notice pleading requirements.
“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 Fed. 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
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 35 of 43 PageID 419
should have known of the dangerous propensities of a
Id. (marks, citations, and footnote omitted).
relationship with a franchisee under certain circumstances.
Oil Corp., 648 So. 2d at 120.
The Complaint contains sufficient
allegations to support a claim of an agency relationship between
Wyndham and its franchisees, and any factual challenge to such a
Furthermore, the Complaint contains sufficient allegations that
sex trafficking was occurring at the Days Inn Hotel and that
Wyndham knew or should have known of it.
(Doc. #1, ¶¶ 64-70, 107-
Accordingly, the Court denies Wyndham’s request to
dismiss the claim as insufficiently pled.
Negligent Hiring, Supervision, and Retention
Count Four of the Complaint asserts a claim of negligent
hiring, supervision, and retention against each defendant.
#1, p. 45.)
“To state a claim under Florida law for negligent
hiring, supervision and/or retention, a plaintiff must establish
that the employer owed a legal duty to the plaintiff to exercise
Clary v. Armor Corr. Health Servs., Inc., 2014 WL
505126, *4 (M.D. Fla. Feb. 7, 2014) (citations omitted).
law also holds employers liable for reasonably foreseeable damages
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 36 of 43 PageID 420
resulting from the negligent training of its employees and agents.”
Id. (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
Id. (citations omitted).
The Complaint alleges each Days Inn Hotel 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.
#1, ¶¶ 222-23.)
The Complaint further alleges that the Days Inn
Hotel 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.”
The Complaint concludes that the Days Inn Hotel
supervision, and termination decisions regarding the employees,
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 37 of 43 PageID 421
and that the sex trafficking of plaintiff was a foreseeable and
(Id. ¶¶ 228-32.)
Each of the three motions seeks dismissal of the negligent
H.I. Naples argues that because multiple defendants
have owned the hotel on different dates, it cannot defend itself
on this claim “[w]ithout factual allegations that specify which
employee(s) were negligently hired, and/or when they were employed
at the hotel and by which defendant.” (Doc. #16, p. 7.) Similarly,
“[g]eneralized references to employees of all defendants” and not
(Doc. #21, p. 10.)
The Court disagrees with both
The Complaint contains the general dates during which each
defendant was in control of the Days Inn Hotel, as well as the
general dates during which plaintiff was sexually trafficked at
The Complaint also contains sufficient allegations
regarding the hotel employees and how their actions resulted in
the sex trafficking.
The Complaint does not require greater
specificity to avoid dismissal.
Read as a whole, see Rosky ex
rel. Wellcare Health Plans, Inc. v. Farha, 2009 WL 3853592, *2
(M.D. Fla. Mar. 30, 2009) (“The allegations of the Complaint may
not be parsed and read in isolation, but must be read as a whole.”),
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 38 of 43 PageID 422
defendants fair notice of the nature of plaintiff’s claim and the
grounds upon which it rests.
See Twombly, 550 U.S. at 555.
Alternatively, Wyndham argues the claim should be dismissed
Franchisees knew or should have known of any unfit employees,” and
(2) the Complaint does not plausibly allege that Wyndham hired or
employed any of the employees at issue.
(Doc. #17, pp. 21-22.)
The Court is not persuaded by either argument.
former, the Complaint sufficiently alleges facts suggesting sex
trafficking was occurring at the hotel, that the employees failed
to prevent it, and that due to their control over the employees,
each Days Inn Hotel defendant knew or should have known of it.
(Doc. #1, ¶¶ 97-120, 219-27.)
Regarding the latter, the Court has
determined the Complaint’s allegations of an agency relationship
between Wyndham and the franchisees are sufficient. 10
In arguing it did not hire any of the employees, Wyndham
asserts it “did not own, operate, manage, or control the franchised
hotel at issue.” (Doc. #17, p. 22.) However, this conflicts with
the Complaint’s allegations that Wyndham was one of the Days Inn
“owners, operators, managers, supervisors, controllers
and innkeepers,” that Wyndham “exercised ongoing and systematic
control over operations” at the hotel, and that Wyndham made
“employment decisions.” (Doc. #1, ¶¶ 32, 123, 124.) 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.”
Postmaster Gen. & Chief Exec. Officer of U.S. Postal Serv., 493
Fed. App’x 994, 995 (11th Cir. 2012).
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 39 of 43 PageID 423
the Court denies the request to dismiss the negligent hiring,
supervision, and retention claim.
Count Five of the Complaint asserts a claim of negligent
rescue against Hanuman, Shree, and H.I. Naples.
(Doc. #1, p. 48.)
The Complaint alleges these defendants, as the owners and operators
of the Days 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 Days Inn Hotel and to rescue
their hotel guests.”
(Id. ¶¶ 238, 241, 247.)
alleges that by various acts and omissions, the defendants breached
these duties and that the continuous sex trafficking of plaintiff
was the direct and foreseeable result.
(Id. ¶¶ 243-45, 249-50,
H.I. Naples and Hanuman each argue the negligent rescue
claim should be dismissed because it is insufficiently pled.
There is no common law duty to rescue a stranger.
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.
“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
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
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 40 of 43 PageID 424
Abramson v. Ritz Carlton Hotel Co., LLC, 480 Fed. 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
H.I. Naples and Hanuman argue the negligent rescue claim
should be dismissed because it is insufficiently pled under the
(Doc. #16, p. 8; Doc. #21, p. 10.)
Florida law, the rescue doctrine holds a tortfeasor liable for
injuries to a third party who is hurt in attempting to rescue the
direct victim of the tortfeasor.
Zivojinovich v. Barner, 525 F.3d
1059, 1070 (11th Cir. 2008) (citation omitted). “The basic precept
of this doctrine ‘is that the person who has created a situation
of peril for another will be held in law to have caused peril not
only to the victim, but also to his rescuer, and thereby to have
caused any injury suffered by the rescuer in the rescue attempt.’”
Menendez v. W. Gables Rehab. Hosp., LLC, 123 So. 3d 1178, 1181
(Fla. 3d DCA 2013) (quoting N.H. Ins. Co. v. Oliver, 730 So. 2d
700, 702 (Fla. 4th DCA 1999)).
As plaintiff correctly argues in response (Doc. #31, p. 15;
plaintiff’s negligent rescue claim.
See Krajcsik v. Ramsey, 2017
WL 3868560, *2 n.4 (D. Md. Sept. 5, 2017) (“The rescue doctrine is
related to, but separate from, the affirmative duty to rescue an
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 41 of 43 PageID 425
Accordingly, because the rescue doctrine is not
applicable, H.I. Naples and Hanuman’s request for dismissal based
on the doctrine is denied.
Aiding and Abetting, Harboring, Confining, Coercion and
Finally, Count Six of the Complaint asserts a claim of aiding
and abetting against Hanuman, Shree, and H.I. Naples.
The Complaint accuses these defendants of “aiding and
imprisonment, assault and battery by [plaintiff’s] sex traffickers
(Id. ¶ 253.)
H.I. Naples and Hanuman have moved to
dismiss the claim on the basis it is not a valid Florida cause of
action and is impermissibly vague.
(Doc. #16, p. 8; Doc. #21, p.
commission of a tort as a standalone claim.
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).
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
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 42 of 43 PageID 426
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 Fed. App’x 904, 906 (11th Cir. 2012) (applying
the above elements to three Florida tort claims).
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 11, are
sufficient to state a claim.
Accordingly, the Court denies H.I.
Naples and Hanuman’s request for dismissal.
Accordingly, it is now
1. Defendant H.I. Naples, LLC’s Motion to Dismiss Plaintiff’s
Complaint, Motion to Strike, and Incorporated Memorandum of
Law (Doc. #16) is DENIED.
2. Defendant Wyndham Hotels & Resorts, Inc.’s Motion to
Dismiss Plaintiff’s Complaint (Doc. #17) is DENIED.
“[A]llegations which demonstrate merely constructive
knowledge, recklessness or gross negligence cannot satisfy the
‘knowledge’ element of an aiding and abetting claim under Florida
law.” Angell, 2019 WL 3958262, *9.
Case 2:20-cv-00626-JES-MRM Document 59 Filed 02/16/21 Page 43 of 43 PageID 427
3. Defendant Hanuman of Naples, LLC’s Motion to Dismiss
Plaintiff’s Complaint, Motion to Strike, and Memorandum of
Law in Support Thereof (Doc. #21) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
Parties of record
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