C.S. v. Wyndham Hotels & Resorts, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

C. S.,

Plaintiff,

v. Case No: 2:20-cv-636-JES-MRM

WYNDHAM HOTELS & RESORTS,

INC., LA QUINTA HOLDINGS,

INC., LA QUINTA PROPERTIES,

INC., COREPOINT LODGING,

INC., CPLG LLC, and LQ FL

PROPERTIES, LLC,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of defendants

Wyndham Hotels & Resorts, Inc. and La Quinta Holdings Inc.’s Motion

to Dismiss (Doc. #16), and defendants Corepoint Lodging Inc., CPLG

L.L.C., and CPLG FL Properties L.L.C.’s Motion to Dismiss (Doc.

#17), both filed on October 9, 2020. Plaintiff filed an Opposition

to each motion (Doc. #35; Doc. #36) on November 4, 2020, to which

the defendants filed a Reply (Doc. #43; Doc. #44) on November 30,

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. Id. at

(Doc. #1). 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 C.S., a resident of Collier

County, Florida, was a victim of continuous sex trafficking at a

certain La Quinta Inn & Suites by Wyndham Naples Downtown in

Naples, Florida (the La Quinta Downtown Hotel) between 2015 and

February 2016. (Id. ¶¶ 2, 13, 22-24.) The Complaint alleges that

during this time period the La Quinta Downtown Hotel was operated

by defendants La Quinta Holdings Inc. (La Quinta Holdings), La

Quinta Properties, Inc. (La Quinta Properties), Corepoint Lodging

Inc. (Corepoint), CPLG L.L.C. (CPLG), and CPLG FL Properties L.L.C.

(CPLG FL) as a franchisee of defendant Wyndham Hotels & Resorts,

Inc. (Wyndham). (Id. ¶¶ 25-32, 53.)

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 hiring, supervision, and retention; (5) negligent

rescue; and (6) aiding and abetting, harboring, confining,

coercion, and criminal enterprise. (Id. pp. 35-55.) Counts One

through Four are asserted against each defendant, while Counts

Five and Six are asserted against La Quinta Holdings, La Quinta

Properties, Corepoint, CPLG, and CPLG FL. (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

“La Quinta Downtown 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.

1

#16, pp. 3-4; Doc. #17, pp. 3-4.)

1

The page numbers refer to those generated by the Court’s

computer system upon filing (upper left-hand corner) and do not

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, 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).

The Complaint does indeed repeatedly refer to the defendants

collectively as the “La Quinta Downtown 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.” Kyle K. v. Chapman, 208

F.3d 940, 944 (11th Cir. 2000). 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

always correspond with the page number at the bottom of the

document.

defendants was involved in the identified conduct attributed to

the “La Quinta Downtown 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.

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

above the speculative level.” Id. at 555; see also Edwards v.

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

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. 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. Factual allegations that are merely

consistent with a defendant’s liability fall short of being

facially plausible. 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.” Iqbal, 556 U.S. at 679.

(1) Trafficking Victims Protection Reauthorization Act

Both motions challenge the one federal claim, the alleged

violation of the TVPRA set forth in Count One. The TVPRA provides

a civil remedy to victims of certain types of human trafficking.

The civil remedy portion of the Act provides:

(a) An individual who is a victim of a violation of this

chapter may bring a civil action against the perpetrator

(or whoever knowingly benefits, financially or by

receiving anything of value from participation in a

venture which that person knew or should have known has

engaged in an act in violation of this chapter) in an

appropriate district court of the United States and may

recover damages and reasonable attorneys fees.

18 U.S.C. § 1595(a). The phrase “a violation of this chapter”

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

only violation of Chapter 77 relevant to this case is contained in

18 U.S.C. § 1591(a), which provides in relevant part:

(a) Whoever knowingly –

(1) in or affecting interstate or foreign commerce .

. . recruits, entices, harbors, transports, provides,

obtains, advertises, maintains, patronizes, or

solicits by any means a person; or

(2) benefits, financially or by receiving anything of

value, from participation in a venture which has

engaged in an act described in violation of paragraph

(1),

knowing, or except where the act constituting the

violation of paragraph (1) is advertising, in reckless

disregard of the fact, that means of force, threats of

force, fraud, coercion described in subsection (e)(2),

or any combination of such means will be used to cause

the person to engage in a commercial sex act, or that

the person has not attained the age of 18 years and will

be caused to engage in a commercial sex act, shall be

punished as provided in subsection (b).

18 U.S.C. § 1591(a). To state a section 1595(a) claim in this

case, plaintiff must plausibly allege that she was a victim of a

criminal offense under section 1591(a), and then must plausibly

allege that defendant (1)”knowingly benefit[ted] financially or by

receiving anything of value,” (2) from participation in a venture,

(3) which defendant “knew or should have known has engaged in” sex

trafficking under section 1591(a). S.Y., 476 F. Supp. 3d at 1255-

56 (citing A.B. v. Marriott Int’l, Inc., 455 F. Supp. 3d 171, 181

(E.D. Pa. 2020)).

The motions argue the Complaint’s allegations are

insufficient to state a claim under section 1595(a), asserting

three pleading deficiencies. (Doc. #16, pp. 5-12; Doc. #17, pp.

5-12.)

(a) “Participation” in a “Venture”

The motions first argue that the Complaint lacks well-pled

allegations that the defendants participated in a “venture,” as

required by section 1595(a). (Doc. #16, pp. 6-9; Doc. #17, pp. 6-

9.) Drawing on the definition of “venture” used in the criminal

2

portion of the statute, 18 U.S.C. § 1591(e)(6) , the motions assert

that a “venture” requires two or more individuals “associated in

3

fact.” (Doc. #16, p. 6; Doc. #17, p. 6.) Borrowing from the

federal RICO definition of “enterprise,” the motions argue that

“associated in fact” requires that persons must operate as a

“continuing unit that functions with a common purpose.” (Doc.

2

“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).

3

The motions note that the defendants are 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. #16, p. 9 n.4; Doc. #17, p. 9

n.4.)

#16, p. 6; Doc. #17, p. 6.) The motions continue that in the

context of a TVPRA claim against a hotel operator, the Complaint

must “at least” allege a “continuous business relationship between

the trafficker and the hotels such that it would appear that the

trafficker and the hotels have established a pattern of conduct or

could be said to have a tacit agreement.” (Doc. #16, p. 7; Doc.

#17, p. 7) (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 6121939, *5 (S.D. Fla. Sept. 30, 2020)( “In order to

plead Defendants participated in a venture, Plaintiff must allege

facts from which the Court could reasonably infer the hotels could

be said to have a tacit agreement with the trafficker.” (marks

omitted)). The motions conclude 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 shared a common purpose or otherwise ‘associated in

fact.’” (Doc. #16, p. 7; Doc. #17, p. 7.)

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 C.S. for

commercial sexual exploitation by repeatedly renting rooms at La

Quinta Downtown Hotel to people” the defendants “knew or should

4

have known were engaged in sex trafficking.” (Doc. #1, ¶ 164.)

The Complaint also alleges why the defendants should have been on

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

(Id. ¶¶ 4-16, 59-87, 118.) 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.”).

The motions also argue that “participation” in a venture

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. #16, p. 8; Doc. #17, p. 8.) 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

4

The motions cite the same paragraph but fail to recite the

complete sentence. (Doc. #16, p. 8; Doc. #17, p. 8.)

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 motions have not

identified any controlling authority to the contrary.

(b) Knowingly Benefited From Participating in Venture

The motions next argue that the Complaint insufficiently

alleges that the defendants knowingly benefitted from

participating in a venture that committed TVPRA crimes, with

knowledge of the causal relationship. (Doc. #16, p. 10; Doc. #17,

p. 10.) The motions assert that the allegation that the defendants

benefited from the operation of the La Quinta Downtown Hotel

generally is insufficient. (Doc. #16, p. 10; Doc. #17, p. 10.)

The Complaint alleges the defendants knowingly benefited from

the sex trafficking of plaintiff “by receiving payment for the

rooms rented for Plaintiff C.S. and her traffickers at the La

Quinta Downtown 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, ¶ 162.)

As to Wyndham as franchisor, the Complaint alleges it “received a

significant franchise fee and continuous royalties on the La Quinta

Downtown Hotel’s gross revenue,” while also exercising “ongoing

and systematic control over operations at the La Quinta Downtown

Hotel.” (Id. ¶¶ 47, 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.

(c) Knew or Should Have Known that Venture was

Committing Sex Trafficking Crimes

Finally, the motions argue the Complaint fails to plausibly

allege that 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. #16, pp. 10-12; Doc. #17, pp. 10-12.)

Rather, the motions argue, the Complaint only alleges that the

hotel staff did not interfere with plaintiff and witnessed indicia

of commercial sex activity. (Doc. #16, pp. 10-11; Doc. #17, pp.

10-11.) The motions argue that the allegations do not give rise

to a reasonable inference that the defendants knew or should have

known about any forced commercial sex activity at the La Quinta

Downtown Hotel. (Doc. #16, p. 11; Doc. #17, p. 11.)

The 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 La Quinta Downtown 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 was often held captive by her traffickers

at the La Quintal [sic] Downtown Hotel for extended

periods of time, ranging from days to weeks;

c. Plaintiff’s sex traffickers often paid cash for the

rooms at the La Quinta Downtown Hotel where the

Plaintiff engaged in commercial sex acts;

d. Plaintiff’s sex traffickers booked extended stays at

the La Quinta Downtown Hotel for themselves and for

the Plaintiff on a routine basis and on a rotating

basis frequently throughout the year;

e. Plaintiff and her sex traffickers would have few or

no luggage or personal possessions for these extended

stays;

f. Plaintiff was confined in the rooms at the La Quinta

Downtown Hotel for long periods of time;

g. 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

sex trafficking acts;

h. Men (“Johns”) frequently entered and left the rooms

at the La Quinta Downtown Hotel where the Plaintiff

was engaged in illegal sex trafficking acts at all

times of day and night;

i. The staff and customers at the La Quinta Downtown

Hotel that was owned, operated, managed, supervised,

controlled and/or otherwise held responsible by each

and every La Quinta Downtown Defendant saw that the

rooms where the Plaintiff engaged in commercial sex

acts were messy, and contained sex and drug

paraphernalia, blood-stained linens and had an

unclean smell;

j. The rooms at the La Quinta Downtown Hotel were filled

with evidence of sex trafficking and drug use;

k. Plaintiff’s sex traffickers consistently refused

housekeeping services and otherwise would prohibit

staff from entering their rooms and the Plaintiff’s

rooms;

l. Plaintiff and other sex trafficking victims would

frequently request clean towels and linens;

m. Plaintiff dressed in a sexually explicit manner and

would walk seen by the hotel staff in the hallways of

the La Quinta Downtown Defendant [sic];

n. Excessively loud noises would consistently come from

Plaintiff’s rooms;

o. During nighttime hours, Plaintiff and her “Johns”

would create noise at the La Quinta Downtown 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, ¶ 100.) Further, the Complaint alleges the defendants

“knew or should have known about the nature of the sex trafficking

venture at the La Quinta Downtown Hotel, including as they related

to Plaintiff C.S.” due to the following:

a. Requests by the traffickers to rent rooms near exit

doors;

b. Cash payments for the rooms by the sex traffickers;

c. Refusal of housekeeping services by those persons

engaged in sex trafficking;

d. Excessive used condoms located in the rooms used for

sex trafficking;

e. Excessive requests for towels and linens in the rooms

used for sex trafficking;

f. Hotel staff observing Plaintiff C.S. and her

traffickers in the hotel;

g. Plaintiff C.S. 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. Hotel staff observing C.S. in inappropriate clothing,

often in the same dirty clothing for extended periods

of time; and

k. Knowledge of police and EMS activity at the La Quinta

Downtown Hotel and at other locations near the La

Quinta Downtown Hotel that was related to commercial

sex work.

(Id. ¶ 163.)

The Court finds these allegations sufficient to reasonably

infer the defendants knew or should have known of the sex

trafficking venture. 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.

Because the allegations in the Complaint are sufficient to

state a claim under section 1595 of the TVPRA, the Court denies

the motions’ request for dismissal pursuant to Rule 12(b)(6).

(2) Florida RICO Violation

Count Two of the Complaint asserts a claim against each

defendant under Florida’s civil RICO statute, section 772.104,

Florida Statutes. (Doc. #1, p. 38.) To state a claim under the

statute, plaintiff must allege plausible facts showing “(1)

conduct or participation in an enterprise through (2) a pattern of

[criminal] activity.” Horace-Manasse v. Wells Fargo Bank, N.A.,

521 F. App’x 782, 784 (11th Cir. 2013) (quoting Lugo v. State, 845

5

So. 2d 74, 97 (Fla. 2003)).

Each of the motions argue plaintiff has insufficiently pled

the enterprise element of her claim. (Doc. #16, pp. 13-14; Doc.

#17, pp. 13-14.) Florida’s RICO statute defines enterprise to

include a “group of individuals associated in fact although not a

legal entity.” § 772.102(3), Fla. Stat. “[A]n association-in-

fact enterprise is simply a continuing unit that functions with a

5

“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.”).

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) relationships among those associated with the

enterprise, and (3) longevity sufficient to permit these

associates to pursue the enterprise’s purpose.” Cisneros v.

Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020) (marks and

citations omitted). The motions argue the Complaint fails to

sufficiently allege a “common purpose” among the defendants. (Doc.

#16, p. 14; Doc. #17, p. 14.)

“The purpose prong contemplates ‘a common purpose of engaging

in a course of conduct’ among the enterprise’s alleged

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

v. Turkette, 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 C.S.’s sex traffickers for the

common purpose of profiting off an established sex trafficking

scheme.” (Doc. #1, ¶ 173.) 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 to profit off an institutionalized sex

trafficking scheme.” (Id. ¶¶ 173-74.) The 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 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”).

Each of the motions also argues the Complaint fails to

sufficiently plead the “pattern of criminal activity” element.

(Doc. #16, pp. 14-15; Doc. #17, pp. 14-15.) As previously stated,

“[i]n order to state a civil cause of action under the Florida

RICO Act, a plaintiff must allege a pattern of criminal activity.”

Arthur v. JP Morgan Chase Bank, NA, 569 F. App’x 669, 682 (11th

Cir. 2014) (citing §§ 772.103-104, Fla. Stat.). The statute’s

definition of “criminal activity” provides “that a particular

state law crime can serve as the predicate act for a RICO claim if

it is ‘chargeable by indictment or information’ and falls within

a series of specified provisions.” Id. (citing § 772.102(1)(a),

Fla. Stat.). “In order to establish a pattern of criminal

activity, the plaintiff must allege two or more criminal acts ‘that

have the same or similar intents, results, accomplices, victims,

or methods of commission’ that occurred within a five-year time

span.” Id. at 680 (citing § 772.102(4), Fla. Stat.).

As noted by the motions (Doc. #16, p. 14; Doc. #17, p. 14),

plaintiff’s Florida RICO claim is predicated on the commission of

human trafficking crimes in violation of section 787.06, Florida

Statutes. (Doc. #1, ¶¶ 175, 177); 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). This provision 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.” § 787.06(3), Fla. Stat. Given the

similarity between this language and the TVPRA’s civil liability

provision, the motions argue the Florida RICO claim fails “for the

same reasons that Plaintiff failed to state a TVPRA claim.” (Doc.

#16, p. 15; Doc. #17, p. 15.) The Court has, however, determined

plaintiff’s TVPRA claim is sufficiently pled, and therefore

rejects the motions’ argument as to the Florida RICO claim.

(3) Premise Liability

Count Three of the Complaint asserts a claim of premise

liability against each defendant. (Doc. #1, p. 40.) A premise

liability claim is a form of negligence action. “The elements for

negligence are duty, breach, harm, and 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, ¶¶ 193-207.) 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. ¶¶

198-200.)

(a) Statute of Limitations

The motions argue the premise liability claim should be

dismissed because it is barred by the relevant statute of

limitations. (Doc. #16, p. 19; Doc. #17, p. 19.) Under Florida

law, the statute of limitations for negligence claims is four

years. § 95.11(3)(a), Fla. Stat.

A statute of limitations bar is “an affirmative defense, and

. . . plaintiff[s] [are] not required to negate an affirmative

defense in [their] complaint.” La Grasta v. First Union Sec.,

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

dismissal for failure to state a claim on statute of limitations

grounds is appropriate only if it is apparent from the face of the

complaint that the claim is time-barred.” United States ex rel.

Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081, 1085 (11th Cir.

2018) (marks and citation omitted).

Plaintiff alleges the sex trafficking occurred at the La

Quinta Downtown Hotel “[f]rom approximately 2015 to February

2016.” (Doc. #1, ¶ 88.) The motions argue that because the

Complaint was filed in August 2020, the premise liability claim is

time barred. (Doc. #16, p. 19; Doc. #17, p. 19.)

“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.” § 95.031(1),

Fla. Stat. “Under the continuing tort doctrine, the cause of

action accrues when the tortious conduct ceases.” Effs v. Sony

Pictures Home Entm’t, Inc., 197 So. 3d 1243, 1244 (Fla. 3d DCA

2016) (emphasis and citation omitted). “A continuing tort is

established by continual tortious acts, not by continual harmful

effects from an original, completed act.” Id. at 1245 (marks,

emphasis, and citation omitted).

Here, plaintiff alleges she was a repeat victim of sex

trafficking at the La Quinta Downtown Hotel between 2015 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) Wyndham

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). While the

Court determined severance of the parties was appropriate in the

original action, S.Y., 476 F. Supp. 3d at 1259, and this Complaint

was filed in August 2020, it appears that the December 2019 date

is applicable for statute of limitations purposes under the

relation-back provisions of Rule 15(c) of the Federal Rules of

Civil Procedure.

Relation back is a legal fiction employed to salvage

claims that would otherwise be unjustly barred by a

limitations provision. See McCurdy v. United States, 264

U.S. 484, 487, 44 S.Ct. 345, 346, 68 L.Ed. 801 (1924);

Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993).

Under Rule 15, a claim in an amended complaint relates

back to the filing date of the original complaint if it

“asserts a claim or defense that arose out of the

conduct, transaction, or occurrence set out—or attempted

to be set out—in the original pleading.” Fed. R. Civ. P.

15(c)(1)(B). When the facts in the original complaint do

not put the defendant “on notice that the new claims of

negligence might be asserted,” but the new claims

instead “involve[ ] separate and distinct conduct,” such

that the plaintiff would have to prove “completely

different facts” than required to recover on the claims

in the original complaint, the new claims do not relate

back. Moore, 989 F.2d at 1132.

Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1368 (11th Cir. 2018).

Accordingly, since it is not apparent 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 Wyndham is also barred by the four-year statute of

limitations. (Doc. #16, p. 18.)

(2) La Quinta Holdings, Corepoint, CPLG, and CPLG FL

La Quinta Holdings, Corepoint, CPLG, and CPLG FL also argue

the premise liability claim is barred because the Complaint was

filed in August 2020. (Doc. #16, p. 19; Doc. #17, p. 19.) These

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. #35, pp. 34-37; Doc. #36, pp. 34-36.) Plaintiff

suggests the claims may relate back to the December 31, 2019 First

Amended Complaint, the date she first identified the La Quinta

franchise and named Wyndham as a defendant. For example, plaintiff

argues that the other defendants may have been notified by Wyndham

when the suit was originally filed pursuant to the terms of the

franchisor/franchisee agreements. 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-

barred because the Court cannot determine that plaintiff’s premise

liability claim does not relate back to the First Amended Complaint

6

or is not subject to statutory or equitable tolling. Therefore,

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 La Quinta Holdings, Corepoint, CPLG, and CPLG

FL seek dismissal of the other negligent claims on the same grounds

(Doc. #16, p. 19; Doc. #17, p. 19), the Court’s ruling applies to

those claims as well.

(b) Failure to State a Claim

Both motions argue the premise liability claim is

insufficiently pled, first arguing the claim fails because it does

not allege the defendants possessed or controlled the La Quinta

Downtown Hotel. (Doc. #16, p. 15; Doc. #17, p. 15.) The Court

disagrees. As noted, a premise liability claim requires a

defendant possess or control the premises at issue. Lisanti, 787

So. 2d at 37. Here, the Complaint alleges the defendants were the

“owners, operators, managers, supervisors, controllers and

innkeepers” of the La Quinta Downtown Hotel, and that Wyndham

6

“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.

exercised control over the means and methods of how the other

defendants conducted business at the hotel. (Doc. #1, ¶¶ 32, 116.)

While the defendants may dispute these allegations, the Court must

accept them as true at this stage of the proceedings and finds

them sufficient to allege the defendants had sufficient control of

the La Quinta Downtown Hotel for premise liability purposes.

Next, the motions argue there could be no duty to protect

plaintiff from the criminal conduct of third parties because such

conduct was not foreseeable. (Doc. #16, p. 16; Doc. #17, p. 16.)

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). Such knowledge must

only be pled generally. Fed. R. Civ. P. 9(b).

The Complaint contains sufficient allegations that sex

trafficking was occurring at the La Quinta Downtown Hotel and that

the defendants knew or should have known of it. (Doc. #1, ¶¶ 59-

65, 100-09, 163.) The Complaint also contains sufficient

allegations to support a claim of an agency relationship between

Wyndham and the other defendants, and any factual challenge to

such a relationship is premature. (Doc. #1, ¶ 114, 116); Cain v.

Shell Oil Co., 994 F. Supp. 2d 1251, 1252 (N.D. Fla. 2014); Mobil

Oil Corp. v. Bransford, 648 So. 2d 119, 120 (Fla. 1995).

Accordingly, the Court finds the allegations in the Complaint are

sufficient to satisfy the notice pleading requirements.

Finally, the motions assert generally that the premise

liability claim lacks “any allegation supporting causation.”

(Doc. #16, p. 16; Doc. #17, p. 16.) The Court disagrees. The

Complaint alleges the defendants were on notice of the sex

trafficking occurring at the La Quinta Downtown Hotel and not only

failed to prevent it, but knowingly turned a blind eye to it in

exchange for increased profits. (Doc. #1, ¶¶ 64, 66-81, 262).

The Complaint also alleges that as a result of the defendants’

actions, plaintiff suffered various injuries and damages. (Id. ¶

207.) The Court finds this sufficient to allege proximate cause.

Accordingly, the Court denies the motions’ request to dismiss the

claim as insufficiently pled.

(4) Negligent Hiring, Supervision, and Retention

Count Four of the Complaint asserts a claim of negligent

hiring, supervision, and retention against each defendant. (Doc.

#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

reasonable care in hiring and retaining safe and competent

employees.” Clary v. Armor Corr. Health Servs., Inc., 2014 WL

505126, *4 (M.D. Fla. Feb. 7, 2014) (citations omitted). “Florida

law also holds employers liable for reasonably foreseeable damages

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 defendant-

employer breached that duty and that the breach caused

him damage.

Id. (citations omitted).

The Complaint alleges each La Quinta Downtown 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.

(Doc. #1, ¶¶ 218-19.) The Complaint further alleges that the

defendants knew or should have known that hotel employees were

“allowing criminals to rent rooms for prostitution and drug

dealing,” “failing to either identify and/or report the human sex

trafficking and foreseeable harm” of plaintiff, and “failing to

refuse continued lodging services to human sex traffickers.” (Id.

¶¶ 221-23.) 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.

¶¶ 224-28.)

Each of the motions seeks dismissal of the negligent hiring,

supervision, and retention claim based on pleading deficiencies.

The motions argue that the claim fails because the Complaint lacks

sufficient factual allegations that the defendants (1) knew or

should have known of any unfit employees and (2) hired or employed

any of the employees at issue. (Doc. #16, p. 17; Doc. #17, p.

17); see also Bright v. City of Tampa, 2017 WL 5248450, *8 (M.D.

Fla. May 17, 2017) (“When an employer fails to take a corrective

action against an employee because the employer had no notice of

problems with the employee’s fitness, the employer is not liable

under Florida law for negligent supervision or retention.”). The

Court disagrees. The Complaint sufficiently alleges facts

suggesting sex trafficking was occurring at the hotel, that the

employees knew of it and failed to prevent it, that due to their

control over the employees, each defendant knew or should have

known of it, and that the defendants had control of the hiring of

the employees. (Doc. #1, ¶¶ 92-112, 215-23.) The Court finds

such allegations sufficient at this stage of the proceedings.

(5) Negligent Rescue

Count Five of the Complaint asserts a claim of negligent

rescue against La Quinta Holdings, La Quinta Properties,

Corepoint, CPLG, and CPLG FL. (Doc. #1, p. 48.) The Complaint

alleges these defendants, as the owners and operators of the La

Quinta Downtown 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 La Quinta Downtown Hotel and to

rescue their [sic] hotel guests, specifically Plaintiff C.S., from

the peril they [sic] created.” (Id. ¶¶ 235, 238, 244.) The

Complaint alleges that by various acts and omissions, these

defendants breached these duties and that the continuous sex

trafficking of plaintiff was the direct and foreseeable result.

(Id. ¶¶ 240-42, 246-47, 249.) The motions argue the negligent

rescue claim should be dismissed because it is insufficiently pled.

(Doc. #16, p. 17; Doc. #17, p. 17.)

There is no common law duty to rescue a stranger. Estate of

Ferguson v. Mascara, 2010 WL 11558195, *2 (S.D. Fla. Sept. 7, 2010)

(citing Bradberry v. Pinellas Cty., 789 F.2d 1513, 1516 (11th Cir.

1986)). “A well-established exception to this rule, however,

provides that an innkeeper is ‘under an ordinary duty of care to

[a guest] after he knows or has reason to know the [guest] is ill

or injured.’” De La Flor v. Ritz-Carlton Hotel Co., L.L.C, 2013

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)).

The motions argue the negligent rescue claim should be

dismissed because it is insufficiently pled under the “rescue

doctrine.” (Doc. #16, p. 17; Doc. #17, p. 17.) Under 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. #35, p. 32;

Doc. #36, p. 32), the rescue doctrine is not implicated by

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

imperiled party that the courts impose on persons in some

situations.”). Accordingly, because the rescue doctrine is not

applicable, the motions’ request for dismissal based on the

7

doctrine is denied.

(6) Aiding and Abetting, Harboring, Confining, Coercion and

Criminal Enterprise

Finally, Count Six of the Complaint asserts a claim of aiding

and abetting against La Quinta Holdings, La Quinta Properties,

Corepoint, CPLG, and CPLG FL. (Doc. #1, p. 52.) The Complaint

accuses these defendants of “aiding and abetting unlawful activity

including unlawful confinement, imprisonment, assault and battery

by [plaintiff’s] sex traffickers and ‘Johns.’” (Id. ¶ 250.) The

motions argue that the claim must be dismissed because it fails to

articulate a cognizable, independent cause of action, and purports

to assert multiple claims in a single count. (Doc. #16, p. 17;

Doc. #17, p. 17.) The Court disagrees.

7

The motions also suggest 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 the defendants knew plaintiff was in need of aid. (Doc.

#16, p. 18 n.5; Doc. #17, p. 18 n.5.) However, the Court finds

the Complaint contains sufficient allegations to satisfy this

requirement. (Doc. #1, ¶¶ 101, 102, 245.)

Florida courts have recognized aiding and abetting the

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). 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

8

vague and, to the extent they allege actual knowledge , are

8

“[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.

sufficient to state a claim. Therefore, the Court denies the

motions’ request for dismissal.

Accordingly, it is now

ORDERED :

1. Defendants Wyndham Hotels & Resorts, Inc. and La Quinta

Holdings Inc.’s Motion to Dismiss (Doc. #16) is DENIED.

2. Defendants Corepoint Lodging Inc., CPLG L.L.C., and CPLG

FL Properties L.L.C.’s Motion to Dismiss (Doc. #17) is

DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 5th day of

April, 2021.

\ £,. = AA p

E. STEELE

Sq IOR UNITED STATES DISTRICT JUDGE

Copies:

Parties of record

° To the extent the motions suggest the claim fails to allege

sufficient facts to satisfy the “substantial assistance” element

(Doc. #16, p. 17; Doc. #17, p. 17), the Court finds the allegations

in the Complaint sufficient. (Doc. #1, TI 92, 262-64.)