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-639-FtM-29MRM

WYNDHAM HOTELS & RESORTS,

INC., HANUMAN OF NAPLES,

LLC, SHREE SIDDHIVINAYAK

HOSPITALITY, LLC, H. I.

NAPLES, LLC, and HOLIDAY

HOSPITALITY FRANCHISING,

LLC,

Defendants.

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

to Dismiss Plaintiff’s Complaint, Motion to Strike, and

Incorporated Memorandum of Law (Doc. #17), filed on September 22,

2020; (2) defendant Hanuman of Naples, LLC’s Motion to Dismiss

Plaintiff’s Complaint, Motion to Strike, and Memorandum of Law in

Support Thereof (Doc. #19), filed on October 2, 2020; and (3)

defendant Wyndham Hotels & Resorts, Inc.’s Motion to Dismiss

Plaintiff’s Complaint (Doc. #26), filed on October 9, 2020.

Plaintiff filed a Memorandum in Opposition to each motion (Doc.

#32; Doc. #44; Doc. #43) on October 20th, November 4th, and

November 6, 2020. Defendant Wyndham Hotels & Resorts, Inc. filed

a Reply (Doc. #51) 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 Days Inn Hotel in Naples, Florida (the Days Inn Hotel)

between 2015 and February 2016. (Id. at ¶¶ 14, 23-25.) The

Complaint 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. at ¶¶ 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. at ¶¶ 27-28.)

In 2016, H.I. Naples sold the Days Inn Hotel to defendant Shree

Siddhivinayak Hospitality, LLC (Shree). (Id. at ¶ 28.) 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 Franchising, LLC. (Id. at ¶ 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)

negligent hiring, supervision, and retention; (5) negligent

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

coercion, and criminal enterprise. (Id. pp. 35-53.) Counts One

1 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. #26, p. 2.) At this stage of

the proceedings, factual disputes are resolved in favor of the

allegations in the Complaint.

through Four are asserted against each defendant, while Counts

Five and Six are asserted against only Hanuman, Shree, and H.I.

Naples. (Id.)

II.

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

Hanuman and Wyndham both argue the Complaint must be dismissed

as a shotgun pleading. (Doc. #19, pp. 4-6; Doc. #26, pp. 5-6.)2

The Complaint identifies Wyndham, Hanuman, Shree, and H.I. Naples

collectively as the “Days Inn Defendants.” (Doc. #1, p. 1,

introductory paragraph.) Hanuman and Wyndham argue that because

the Complaint groups these four defendants together, it should be

dismissed as a shotgun pleading. (Doc. #19, pp. 5-6; Doc. #26,

pp. 5-6.)

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

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

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

always correspond with the page number at the bottom of the

document.

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, at *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 four

defendants collectively as the “Days Inn Defendants.” See (Doc.

#1, ¶¶ 2-3, 8, 18, 36, 46, 48, 72, 74, 96, 102, 109, 121, 128-29.)

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 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.

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

profit.” (Doc. #17, pp. 3-4; Doc. #19, pp. 6-7.) 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. (Id.)

Pursuant to Rule 12(f), a party may move to strike “any

redundant, immaterial, impertinent, or scandalous matter” within

the pleadings. 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.

1976). “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, at *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 complaint.” Id. A motion to strike is a drastic remedy

and is disfavored by the courts. Schmidt v. Life Ins. Co. of N.

Am., 289 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.” Id.

It is accurate to say that the Complaint alleges that

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

n.5. 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

granted. (Doc. #17, pp. 4-9; Doc. #19, pp. 7-11; Doc. #26, pp. 6-

24.) 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

Wyndham challenges the one federal claim, the alleged

violation of the TVPRA set forth in Count One. (Doc. #26, p. 6.)

The TVPRA provides a civil remedy to victims of certain types of

human trafficking. The civil remedy portion of the Act provides:

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

chapter may bring a civil action against the perpetrator

(or whoever knowingly benefits, financially or by

receiving anything of value from participation in a

venture which that person knew or should have known has

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

appropriate district court of the United States and may

recover damages and reasonable attorneys fees.

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

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

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

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

(a) Whoever knowingly –

(1) in or affecting interstate or foreign commerce .

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

obtains, advertises, maintains, patronizes, or

solicits by any means a person; or

(2) benefits, financially or by receiving anything of

value, from participation in a venture which has

engaged in an act described in violation of paragraph

(1),

knowing, or except where the act constituting the

violation of paragraph (1) is advertising, in reckless

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

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

or any combination of such means will be used to cause

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

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

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

punished as provided in subsection (b).

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

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

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

deficiencies. (Doc. #26, pp. 6-16.)

(a) “Participation” in a “Venture”

Wyndham first argues that the Complaint lacks well-pled

allegations that it participated in a “venture,” as required by

section 1595(a). (Doc. #26, 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

3 “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).

more individuals “associated in fact.”4 (Id., pp. 6-8.) Borrowing

from the federal RICO definition of “enterprise,” Wyndham argues

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

“continuing unit that functions with a common purpose.” (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 U.S. Dist. LEXIS 195811, 2020

WL 6121939, at *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)). 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

4 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. #26, p. 10 n.4.)

shared a common purpose or otherwise ‘associated in fact.’” (Doc.

#26, p. 8.)

Here, the Complaint alleges Wyndham 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 Days

Inn Hotel to people” Wyndham “knew or should have known were

engaged in sex trafficking.” (Doc. #1, ¶ 171.)5 The Complaint

also alleges why Wyndham should have been on notice of the sex

trafficking and how it failed to prevent it. (Id. ¶¶ 5-17, 64-

92, 126.) The Court finds the allegations in the Complaint

sufficient to allege participation in a venture under section

1595(a). See Doe, 2020 WL 6121939, at *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

5 Wyndham cites the same paragraph in its motion, but fails

to recite the complete sentence. (Doc. #26, p. 9.)

that Defendants rented rooms to people it knew or should have known

where [sic] engaged in sex trafficking.”).

Wyndham also argues 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. #26, 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

section 1595. 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.

(b) 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. #26, 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., pp. 10-

11.)

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 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.) As to

Wyndham as franchisor, the Complaint alleges it “received a

significant franchise fee and continuous royalties on the Days Inn

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

systematic control over operations at the Dyas Inn Hotel.” (Id. at

¶¶ 52, 123.) 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,

at *5 (S.D. Ohio Mar. 16, 2020); H.H. v. G6 Hosp., LLC, 2019 WL

6682152, at *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

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. #26, p.

11-13.) Rather, Wyndham argues, the Complaint only alleges that

the hotel staff did not interfere with plaintiff and witnessed

indicia of commercial sex activity. (Id., p. 11.) Wyndham argues

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.

(Id., pp. 11-12.)

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 Days Inn Hotel as a result of the human sex

trafficking enterprise”:

a. Plaintiff’s sex traffickers frequently rented rooms

at the hotel close to each other;

b. 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

stays;

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

and night;

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

unclean smell;

i. Plaintiff recalls at least one Days Inn Hotel

maintenance employee would frequent rooms where sex

trafficking victims were being held;

j. Plaintiff C.S. was often tortured and raped in the

Days Inn Hotel rooms 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

rooms;

m. Plaintiff would frequently request clean towels and

linens;

n. Plaintiff dressed in a sexually explicit manner and

would walk the hallways of the Days Inn Defendant;

o. Excessively loud noises would consistently come from

Plaintiff’s rooms;

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 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 directly participating in the sex

trafficking of Plaintiff C.S.; 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

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, at *5-6; H.H., 2019

WL 6682152, at *3; M.A., 425 F. Supp 3d at 967-68.

(d) Vicarious Liability

Finally, Wyndham suggests the TVPRA claim should be dismissed

because “[v]icarious liability is not viable under the TVPRA”.

(Doc. #26, 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, at *10 (N.D. Ca. Oct. 28, 2020) (finding

plaintiff’s vicarious liability claim had “alleged sufficient

facts to support a plausible claim that [defendants] received

financial benefits from a venture they vicariously participate in

(through their franchisees) that the franchises should have known

was engaged in sex trafficking.”).

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. #26, 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., pp. 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

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

1252 (N.D. Fla. 2014). However, “[f]ranchisors may well enter

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

action or representation, the franchisor has directly or

apparently participated in some substantial way in directing or

managing acts of the franchisee, beyond the mere fact of providing

contractual franchise support activities.” Mobil Oil Corp. v.

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

Here, the Complaint alleges Wyndham was in an agency

relationship with H.I Naples, Hanuman, and Shree during the

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

rules of operation, regular inspection, and price fixing. (Id. at

¶ 124.) 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, at *7; H.H., 2019 WL 6682152, at *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).

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

court.” 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,

at *10 (D. Or. Sept. 8, 2020) (“Defendants dispute whether they

controlled the day-to-day operations of the hotels. Although

Plaintiff may ultimately fail to establish the agency allegations,

at this stage in the proceedings this Court accepts as true all

well-pleaded factual allegations in the complaint and construes

them in Plaintiff’s favor.”); A.B., 455 F. Supp. 3d at 196 (“The

evidence may ultimately prove Marriott does not exercise day-to-

day control over its Philadelphia Airport hotels, but this is more

properly raised after discovery.”).

(2) Florida RICO Violation

Count Two of the Complaint asserts a claim against all

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

Florida Statutes. (Doc. #1, p. 37.) 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

So. 2d 74, 97 (Fla. 2003)). 7

Each of the motions argue plaintiff has insufficiently pled

the enterprise element of her claim. (Doc. #17, pp. 4-5; Doc.

#19, p. 7; Doc. #26, pp. 17-18.) Florida’s RICO statute defines

enterprise to include a “group of individuals associated in fact

although not a legal entity.” § 772.102(3), Fla. Stat. “[A]n

association-in-fact enterprise is simply a continuing unit that

functions with a common purpose.” Boyle v. United States, 556

U.S. 938, 948 (2009). To sufficiently plead such an enterprise,

“a plaintiff must allege that a group of persons shares three

7 “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.”).

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. #17, pp. 4-5; Doc. #19, p. 7; Doc. #26, pp. 17-

18.)

“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 Wyndham, Hanuman, Shree and H.I.

Naples “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, ¶ 179.) 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. at ¶¶ 179-80.)

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 a motion to dismiss

Florida RICO claim, the 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. #17, p. 5; Doc. #19, pp. 7-8); Doc. #26, pp. 18-19.) 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 Wyndham (Doc. #26, p. 19), plaintiff’s Florida

RICO claim is predicated on the commission of human trafficking

crimes in violation of section 787.06, Florida Statutes. (Doc.

#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). 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, Wyndham argues the Florida RICO

claim fails “for the same reasons that Plaintiff failed to state

a TVPRA claim.” (Doc. #26, p. 19.) The Court has, however,

determined plaintiff’s TVPRA claim is sufficiently pled, and

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. (Doc. #17, p. 5; Doc. #19, pp. 7-8.)

The Court disagrees. 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 2015 and February 2016, and provides examples of the times

in which plaintiff herself was trafficked at the hotel. (Doc. #1,

¶¶ 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. #17, p. 5;

Doc. #19, p. 8.) Under the Florida RICO statute, a plaintiff must

demonstrate that their injuries were proximately caused by the

RICO violations. See Bortell v. White Mountains Ins. Grp., Ltd.,

2 So. 3d 1041, 1047 (Fla. 4th DCA 2009). “A wrongful act is a

proximate cause if it is a substantive factor in the sequence of

responsible causation.” Green Leaf Nursery v. E.I. DuPont De

Nemours & Co., 341 F.3d 1292, 1307 (11th Cir. 2003) (marks and

citation omitted). Furthermore, a plaintiff “must show a ‘direct

relation between the injury asserted and the injurious conduct

alleged.’” Id. (quoting Holmes v. Sec. Inv’r Prot. Corp., 503

U.S. 258, 268 (1992)). “Indirect harm is insufficient to sustain

a cause of action under the RICO statutes.” 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

predicate acts.” (Doc. #17, p. 5; Doc. #19, p. 8.) Plaintiff

responds that she has sufficiently pled proximate cause and

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.” (Doc. #32,

pp. 12-13; Doc. #44, p. 14.) Having reviewed the allegations in

the Complaint, the Court agrees with plaintiff.8

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, at

*3 (S.D. Fla. May 24, 2018); see also Townsend v. City of Miami,

2007 WL 9710944, at *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 injury. Accordingly, Mr. Townsend can sue under the

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.” (Doc. #1,

¶ 69.) The Complaint also alleges numerous ways in which these

defendants could have identified and prevented the sex trafficking

from occurring. (Id. at ¶¶ 71-86.) Finally, the Complaint alleges

the “acts and omissions of the Days Inn Defendants served to

support, facilitate, harbor, and otherwise further the

traffickers’ sale and victimization” of plaintiff “for commercial

sexual exploitation by repeatedly renting rooms to people they

knew or should have known were engaged in sex trafficking.” (Id.

at ¶ 137.) “[B]y knowingly, or with reckless disregard, repeatedly

allowing sex trafficking to occur on their premises between 2015

and 2016,” the defendants’ “acts have yielded consistent results

and caused economic, physical, and psychological injuries” to

plaintiff. (Id. at ¶¶ 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.

Florida RICO statute for his loss of employment and personal

injuries.”).

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, at *5

(“Because Plaintiffs’ asserted injuries arise from a set of actions

entirely distinct form [sic] the alleged predicate RICO

violations, proximate cause is lacking as a matter of law.”).

(3) Premise Liability

Count Three of the Complaint asserts a claim of premise

liability against all the defendants. (Doc. #1, ¶ 191.) 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, ¶¶ 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. (Id. at

¶¶ 203-05.)

(a) Statute of Limitations

The three motions argue the premise liability claim should be

dismissed because it is barred by the relevant statute of

limitations. (Doc. #17, p. 6; Doc. #19, pp. 8-9; Doc. #26, p. 22.)

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).

(1) Wyndham

Plaintiff alleges the sex trafficking occurred at the Days

Inn Hotel “from approximately 2015 through February 2016.” (Doc.

#1, ¶ 93.) Wyndham argues that because the Complaint was filed in

August 2020, the premise liability claim is time barred. (Doc.

#26, 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, at *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 Days Inn 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, at *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.

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 Wyndham’s arguments

that plaintiff’s negligent hiring, supervision, and retention

claim is also barred by the four-year statute of limitations.

(Doc. #26, p. 22.)

(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. #17, p. 6; Doc. #19, pp. 8-9.) These two

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. #32, p. 18; Doc. #44, 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. #32, pp. 16-18; Doc. #44, pp.

17-19.) For example, plaintiff argues that H.I Naples and Hanuman

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, at *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

or is not subject to statutory or equitable tolling.9 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 H.I. Naples and Hanuman seek dismissal of the

other negligent claims on the same grounds (Doc. #17, pp. 6-7;

Doc. #19, pp. 8-11), the Court’s ruling applies to those claims as

well.

(b) 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.

#26, pp. 19-20.) The Court finds that the Complaint sufficiently

alleges both.

As noted, a premise liability claim requires a defendant to

possess or control the premises at issue. Lisanti, 787 So. 2d at

9 “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.

37. Here, plaintiff alleges Wyndham and other defendants were the

“owners, operators, managers, supervisors, controllers and

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, 124.) 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

liability purposes.

Wyndham also suggests plaintiff’s claim fails because it

insufficiently alleges Wyndham knew or should have known either of

a dangerous condition at the Days Inn Hotel or a dangerous

propensity of a particular patron. (Doc. #26, pp. 20-21.) Such

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 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).

A franchisor such as Wyndham may enter into an agency

relationship with a franchisee under certain circumstances. Mobil

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

relationship is premature. Cain, 994 F. Supp. 2d at 1253.

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-

16, 170.) Accordingly, the Court denies Wyndham’s 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, ¶ 213.) “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, at *4 (M.D. Fla. Feb. 7, 2014) (citations omitted).

“Florida law also holds employers liable for 39reasonably

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 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. (Doc.

#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.” (Id.

¶¶ at 225-27.) The Complaint concludes that the Days Inn Hotel

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. at ¶¶ 228-32.)

Each of the three motions seeks dismissal of the negligent

hiring, supervision, and retention claim based on pleading

deficiencies. (Doc. #17, p. 7; Doc. #19, pp. 9-10; Doc. #26, pp.

21-22.) 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. #17, p. 7.) Similarly,

Hanuman argues that because the Complaint only makes

“[g]eneralized references to employees of all defendants” and not

specific allegations as to Hanuman employees, the claim is

insufficient. (Doc. #19, p. 10.) The Court disagrees with both

arguments.

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 hotel. (Doc. #1, ¶¶ 25-28, 34.) The Complaint also contains

sufficient allegations regarding the hotel employees and how their

actions resulted in the sex trafficking. (Id. at ¶¶ 11-12, 68,

75, 78, 120.) 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, at *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.”), the

Complaint provides sufficient information to give the 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

because (1) it “lacks well-pled factual allegations that

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. #26, pp. 21-22.)

The Court is not persuaded by either argument. Regarding the

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 Accordingly,

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. #26, p. 22.) However, this conflicts with

the Complaint’s allegations that Wyndham was one of the Days Inn

Hotel’s “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

the Court denies the request to dismiss the negligent hiring,

supervision, and retention claim.

(5) Negligent Rescue

Count Five of the Complaint asserts a claim of negligent

rescue against Hanuman, Shree, and H.I. Naples. (Doc. #1, ¶ 233.)

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. at ¶¶ 238, 241, 247.) The Complaint

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. at ¶¶ 243-45, 249-

50, 252.) H.I. Naples and Hanuman each argue the negligent rescue

claim should be dismissed because it is insufficiently pled. (Doc.

#17, p. 8; Doc. #19, p. 10.)

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

Ferguson v. Mascara, 2010 WL 11558195, at *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

district court may not resolve factual disputes.” Page v.

Postmaster Gen. & Chief Exec. Officer of U.S. Postal Serv., 493 F.

App’x 994, 995 (11th Cir. 2012).

[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, at *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)).

H.I. Naples and Hanuman argue the negligent rescue claim

should be dismissed because it is insufficiently pled under the

“rescue doctrine.” (Doc. #17, p. 8; Doc. #19, p. 10.) 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. #32, pp. 15-

16; Doc. #44, pp. 16-17), the rescue doctrine is not implicated by

plaintiff’s negligent rescue claim. See Krajcsik v. Ramsey, 2017

WL 3868560, at *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, H.I. Naples and Hanuman’s request for dismissal based

on the 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 Hanuman, Shree, and H.I. Naples. (Doc. #1,

¶ 253.) 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.) 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. #17, p. 8; Doc. #19, p. 11.)

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, at *8 (M.D. Fla. Aug. 22, 2019); see also Lawrence v.

Bank of Am., N.A., 455 F. App’x 904, 906 (11th Cir. 2012) (applying

the above elements to three Florida tort claims). These cases

demonstrate Florida recognizes a common-law claim of aiding and

abetting tortious conduct.

The Court finds plaintiff’s allegations are not impermissibly

vague and, to the extent they allege actual knowledge11, are

sufficient to state a claim. Accordingly, the Court denies H.I.

Naples and Hanuman’s request for dismissal.

11 “[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, at *9.

Accordingly, it is now

ORDERED :

1. Defendant H.I. Naples, LLC’s Motion to Dismiss Plaintiff’s

Complaint, Motion to Strike, and Incorporated Memorandum of

Law (Doc. #17) is DENIED.

2. Defendant Hanuman of Naples, LLC’s Motion to Dismiss

Plaintiff’s Complaint, Motion to Strike, and Memorandum of

Law in Support Thereof (Doc. #19) is DENIED.

3. Defendant Wyndham Hotels & Resorts, Inc.’s Motion to

Dismiss Plaintiff’s Complaint (Doc. #26) is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 10th day of

May, 2021.

Zé OL

) oh <. Zook

adi E. STEELE

SHVICR UNITED STATES DISTRICT JUDGE

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