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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

S. Y.,

Plaintiff,

v. Case No: 2:20-cv-616-JES-MRM

BEST WESTERN INTERNATIONAL,

INC., R&M REAL ESTATE CO

INC DBA BEST WESTERN NAPLES

PLAZA HOTEL, and ROBERT

VOCISANO,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of defendant

Best Western International, Inc.’s Motion to Dismiss Counts I – IV

of Plaintiff’s Complaint and Memorandum in Support (Doc. #18) filed

on October 2, 2020, and defendants R&M Real Estate Company, Inc.

and Robert Vocisano Co-Tr’s Motion to Dismiss with Prejudice

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

on October 13, 2020. Plaintiff filed an Opposition (Doc. #37;

Doc. #38) to each motion on November 6, 2020, to which the

defendants filed a Reply (Doc. #48; Doc. #49) on November 19th and

November 26, 2020. 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 S.Y., a resident of Collier

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

certain Best Western Naples Plaza Hotel (the Best Western Hotel)

in Naples, Florida between 2013 and February 2016. (Id. ¶¶ 2, 13,

22-24.) The Complaint alleges that during this time period the

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

Estate Company, Inc. (R&M) and Robert Vocisano Co-Tr (Vocisano) as

a franchisee of defendant Best Western International, Inc. (Best

Western). (Id. ¶¶ 25-28, 51.)

The Complaint alleges the following six claims: (1) violation

of the Trafficking Victims Protection Reauthorization Act of 2008

(TVPRA), 18 U.S.C. § 1595; (2) violation of the Florida RICO

statute, § 772.104, Florida Statutes; (3) premise liability; (4)

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

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

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

through Four are asserted against each defendant, while Counts

Five and Six are asserted against R&M and Vocisano. (Id.)

II.

The motions raise numerous arguments as to why the Complaint

as whole, and each individual claim, should be dismissed. The

Court will address each of these arguments.

A. Shotgun Pleading

The Complaint identifies the defendants collectively as the

“Best Western Naples Plaza Hotel Defendants.” (Doc. #1, p. 1

introductory paragraph.) Both motions argue that because the

Complaint groups the defendants together, it should be dismissed

as a shotgun pleading. (Doc. #18, p. 11; Doc. #20, p. 6.)

One way in which a complaint may constitute an impermissible

shotgun pleading is if it “assert[s] multiple claims against

multiple defendants without specifying which of the defendants are

responsible for which acts or omissions, or which of the defendants

the claim is brought against.” Weiland v. Palm Beach Cty.

Sheriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015); see also

Barmapov v. Amuial, 986 F.3d 1321, 1324-25 (11th Cir. 2021). Such

a pleading fails “to give the defendants adequate notice of the

claims against them and the grounds upon which each claim rests,”

Weiland, 792 F.3d at 1323, and violates the requirement that a

plaintiff provide “a short and plain statement of the claim,” Fed.

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

The Complaint does indeed repeatedly refer to the defendants

collectively as the “Best Western Naples Plaza Hotel Defendants.”

The failure to specify a particular defendant is not fatal,

however, when “[t]he complaint can be fairly read to aver that all

defendants are responsible for the alleged conduct.” 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 “Best Western Naples Plaza Hotel

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

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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

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R&M and Vocisano also argue the Complaint is a shotgun

pleading because each count adopts allegations previously asserted

in the Complaint. (Doc. #20, p. 7.) The Court disagrees. While

each claim adopts allegations previously made in the Complaint,

the claims do not adopt all the allegations previously made. See

Weiland, 792 F.3d at 1321 (describing most common type of shotgun

pleading as “a complaint containing multiple counts where each

count adopts the allegations of all preceding counts, causing each

successive count to carry all that came before and the last count

to be a combination of the entire complaint”); Spigot, Inc. v.

Hoggatt, 2020 WL 108905, *1 (M.D. Fla. Jan. 9, 2020) (dismissing

complaint as shotgun pleading when each claim began by restating

and re-alleging “each and every foregoing paragraph” of the

complaint). Additionally, Best Western argues the Complaint

contains “conclusory, vague, and immaterial facts about sex

trafficking and why it is bad.” (Doc. #18, p. 10.) However, the

vast majority of the allegations at issue address sex trafficking’s

prevalence at hotels, the defendants’ knowledge thereof, and the

sex trafficking of plaintiff. (Doc. #1, ¶¶ 3, 5, 57-85, 91, 98,

129-36.) Given the type of claims being alleged, the Court

disagrees that such allegations render the Complaint a shotgun

pleading. Cf. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1359

n.9 (11th Cir. 1997) (finding a shotgun pleading where “a reader

of the complaint must speculate as to which factual allegations

pertain to which count”); Cramer v. State of Fla., 117 F.3d 1258,

1261 (11th Cir. 1997) (“Cramer and Kessler’s complaint is a

rambling ‘shotgun’ pleading that is so disorganized and ambiguous

that it is almost impossible to discern precisely what it is that

these appellants are claiming.”).

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)).

(a) “Participation” in a “Venture”

The motions argue that the Complaint lacks well-pled

allegations that defendants participated in a “venture,” as

required by section 1595(a). (Doc. #18, pp. 14-15; Doc. #20, pp.

7-10.) Drawing on the definition of “venture” used in the criminal

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portion of the statute, 18 U.S.C. § 1591(e)(6) , R&M and Vocisano

assert that a “venture” requires two or more individuals

“associated in fact.” (Doc. #20, p. 7.) Borrowing from the

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“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).

federal RICO definition of “enterprise,” R&M and Vocisano argue

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

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

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

against a hotel operator, the Complaint must “at least” allege a

“continuous business relationship between the trafficker and the

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

have established a pattern of conduct or could be said to have a

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

Resorts, Inc., 425 F. Supp. 3d 959, 970 (S.D. Ohio 2019)); see

also Doe v. Rickey Patel, LLC, 2020 WL 6121939, *5 (S.D. Fla. Sept.

30, 2020) (“In order to plead Defendants participated in a venture,

Plaintiff must allege facts from which the Court could reasonably

infer the hotels could be said to have a tacit agreement with the

trafficker.” (marks omitted)). R&M and Vocisano conclude that “a

commercial transaction,” such as the rental of a hotel room, “does

not give rise to a reasonable inference that the participants in

such a transaction shared any common purpose or otherwise

‘associated in fact.’” (Doc. #20, pp. 8-9.)

Here, the Complaint alleges the defendants participated in a

venture “by engaging in a pattern of acts and omissions that were

intended to support, facilitate, harbor, and otherwise further the

traffickers’ sale and victimization of the Plaintiff S.Y. for

commercial sexual exploitation by repeatedly renting rooms at Best

Western Naples Plaza Hotel to people” the defendants “knew or

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

160.) The Complaint also alleges why the defendants should have

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

it. (Id. ¶¶ 4-16, 57-85, 114.) 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 defendants 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

insufficient. (Doc. #18, pp. 14-15; Doc. #20, p. 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.”). The defendants have not

identified any controlling authority to the contrary.

(b) Knowingly Benefited From Participating in Venture

The motions also argue that the Complaint insufficiently

alleges the defendants knowingly benefitted from participating in

a venture that committed TVPRA crimes, with knowledge of the causal

relationship. (Doc. #18, pp. 13-14; Doc. #20, pp. 10-11.) R&M

and Vocisano argue that the allegation that it benefited generally

from the operation of the hotel is insufficient for TVPRA

liability. (Doc. #20, p. 10.)

The Complaint alleges the defendants knowingly benefited from

the sex trafficking of plaintiff “by receiving payment for the

rooms rented for Plaintiff S.Y. and her traffickers at the Best

Western Naples Plaza Hotel,” and by receiving “other financial

benefits in the form of food and beverage sales and ATM fees from

those persons who were engaging in sex trafficking.” (Doc. #1, ¶

158.) As to Best Western as franchisor, the Complaint alleges it

“received a significant franchise fee and continuous royalties on

the Best Western Naples Plaza Hotel’s gross revenue,” while also

exercising “ongoing and systematic control over operations at the

Best Western Naples Plaza Hotel.” (Id. ¶¶ 45, 114.) 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

Both motions argue the Complaint fails to plausibly allege

the defendants knew or should have known that the “venture” was

engaging in sex-trafficking crimes, i.e., that the defendants knew

or should have known that an adult plaintiff was caused to engage

in commercial sex by force, threats of force, fraud, or coercion.

(Doc. #18, pp. 15-18; Doc. #20, pp. 11-13.) The Court disagrees.

First of all, “knowledge, and other conditions of a person’s

mind may be alleged generally.” Fed. R. Civ. P. 9(b); see Sun

Life Assurance Co. of Can. v. Imperial Premium Fin., LLC, 904 F.3d

1197, 1215 (11th Cir. 2018). Pleading “generally” is not without

limits, and a complaint must still comply with “the less rigid—

though still operative—strictures of Rule 8.” 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 Best Western Naples Plaza Hotel as a result of

the human sex trafficking enterprise”:

a. Plaintiff’s sex traffickers frequently rented rooms

at the hotel close to each other;

b. Plaintiff’s sex traffickers paid cash for the rooms

at the Best Western Naples Plaza Hotel where the

Plaintiff engaged in commercial sex acts;

c. Plaintiff’s sex traffickers booked extended stays at

the Best Western Naples Plaza Hotel for themselves

and for the Plaintiff on a routine basis and on a

rotating basis frequently throughout the year;

d. Plaintiff and her sex traffickers would have few or

no luggage or personal possessions for these extended

stays;

e. Plaintiff was confined in the rooms at the Best

Western Naples Plaza Hotel for long periods of time;

f. Plaintiff’s rooms and her sex traffickers’ rooms

consistently displayed “Do Not Disturb” signs on the

doors to the room where the Plaintiff was engaged in

commercial sex acts;

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

at the Best Western Naples Plaza Hotel where the

Plaintiff was engaged in illegal commercial sex acts

at all times of day and night;

h. The staff and customers at the Best Western Naples

Plaza Hotel that was owned, operated, managed,

supervised, controlled and/or otherwise held

responsible by each and every Best Western Naples

Plaza Hotel Defendant saw and/or reported to the Best

Western Naples Plaza Hotel’s respective

administration that the rooms where the Plaintiff

engaged in commercial sex acts were messy, and

contained sex and drug paraphernalia and had an

unclean smell;

i. The rooms at the Best Western Naples Plaza Hotel were

stained with the Plaintiff’s blood after she was

beaten or violently raped;

j. Plaintiff’s sex traffickers consistently refused

housekeeping services and otherwise would prohibit

staff from entering their rooms and the Plaintiff’s

rooms;

k. Plaintiff would frequently request clean towels and

linens;

l. Plaintiff dressed in a sexually explicit manner and

would walk the hallways of the Best Western Naples

Plaza Hotel Defendant [sic];

m. Excessively loud noises would consistently come from

Plaintiff’s rooms;

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

drug clients would create noise in the public area of

the Best Western Naples Plaza Hotel and, upon

information and belief, would be a disturbance to

other guests using the hotel for their intended

purposes;

o. Plaintiff would sleep during the day and the staff

members of the Best Western Naples Plaza Hotel would

consistently see the Plaintiff wearing lounge or sleep

type clothing during the day; and

p. While at the hotel, the Plaintiff displayed clear

signs of physical abuse, diminished personal hygiene,

submissiveness and inappropriate attire.

(Doc. #1, ¶ 98.) Further, the Complaint alleges the defendants

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

venture at the Best Western Naples Plaza Hotel, including as they

related to Plaintiff S.Y.” due to the following:

a. Requests by the traffickers to rent rooms near exit

doors;

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

c. Refusal of housekeeping services by those persons

engaged in sex trafficking;

d. Excessive used condoms located in the rooms used for

sex trafficking;

e. Excessive requests for towels and linens in the rooms

used for sex trafficking;

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

traffickers in the hotel;

g. Plaintiff S.Y. being escorted by traffickers in and

around the hotel;

h. Pleas and screams from [sic] help coming from the

rooms of Plaintiff S.Y.;

i. Operation of sex trafficking ventures out of the same

hotel room for multiple days or weeks in succession;

j. Multiple men per day coming and going from the same

rooms without luggage or personal possessions; and

k. Knowledge of police and EMS activity at the Best

Western Naples Plaza Hotel and at other locations near

the Best Western Naples Plaza Hotel that was related

to commercial sex work.

(Id. ¶ 159.)

The Court finds these allegations sufficient to reasonably

infer the defendants 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.

(d) Vicarious Liability

Finally, Best Western suggests there is no vicarious

liability under the TVPRA. (Doc. #18, p. 6.) The Court disagrees.

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

sufficient allegations that franchisor was vicariously liable

under section 1595 of the TVPRA to survive dismissal); see also

J.C. v. Choice Hotels Int’l, Inc., 2020 WL 6318707, *10 (N.D. Ca.

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

“alleged sufficient facts to support a plausible claim that

[defendants] received financial benefits from a venture they

vicariously participate in (through their franchisees) that the

franchises should have known was engaged in sex trafficking”).

Best Western also argues that even if it could be held

vicariously liable under the TVPRA, plaintiff’s allegations are

insufficient to establish an agency relationship between Best

Western and its franchisees. (Doc. #18, pp. 6-8.) Having reviewed

the allegations at issue, the Court finds them sufficient to create

a plausible inference of an agency relationship.

“It is well-established that a franchise relationship does

not by itself create an agency relationship between the franchisor

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

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

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

action or representation, the franchisor has directly or

apparently participated in some substantial way in directing or

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

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

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

Here, the Complaint alleges Best Western was in an agency

relationship with R&M and Vocisano during the relevant time period.

(Doc. #1, ¶ 114.) The Complaint further asserts that in a variety

of ways Best Western exercised control over the means and methods

of how R&M and Vocisano conducted business, such as by profit

sharing, standardized training, standardized rules of operation,

regular inspection, and price fixing. (Id. ¶ 115.) The Court

finds such allegations sufficient to support a plausible inference

of an agency relationship. See S.Y., 476 F. Supp. 3d at 1258;

A.B., 455 F. Supp. 3d at 195-97; Doe S.W., 2020 WL 1244192, *7;

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H.H., 2019 WL 6682152, *6; M.A., 425 F. Supp. 3d at 972.

3

To the extent Best Western suggests such a relationship does

not in fact exist, such a determination “is generally a question

of fact for the jury unless the sole basis for the alleged agency

rests in the interpretation of a single contract in which case the

determination may be a question of law to be determined by the

court.” Cain, 994 F. Supp. 2d at 1253. Since the Complaint

alleges an agency relationship based upon the interaction between

Best Western and R&M and Vocisano, this is a question of fact

inappropriate to decide on a motion to dismiss. See Banco Espirito

Santo Int’l, Ltd. v. BDO Int’l, B.V., 979 So. 2d 1030, 1032 (Fla.

3d DCA 2008) (“Unless the alleged agency relationship is to be

proven exclusively by analysis of the contract between the

principal and agent (in which case the question is an issue of

law), the relationship is generally a question of fact and should

be analyzed by looking at the totality of the circumstances.”);

see also A.B. v. Hilton Worldwide Holdings Inc., 2020 WL 5371459,

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

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

Plaintiff may ultimately fail to establish the agency allegations,

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

well-pleaded factual allegations in the complaint and construes

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

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

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

properly raised after discovery.”).

Because the allegations in the Complaint are sufficient to

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

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

(2) Florida RICO Violation

Count Two of the Complaint asserts a claim against the

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

Florida Statutes. (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

4

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

Both motions argue plaintiff has failed to plead Count Two

with the heightened level of specificity required for RICO claims.

(Doc. #18, pp. 18-19; Doc. #20, pp. 16-17.) Plaintiff responds

that because the RICO claim is based on non-fraudulent predicate

acts, the heightened pleading requirement is not applicable. (Doc.

#37, p. 26; Doc. #38, p. 27.) The Court agrees with plaintiff.

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“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.”).

While the Eleventh Circuit has described RICO claims as

“essentially a certain breed of fraud claims” that “must be pled

with an increased level of specificity” consistent with Rule 9 of

the Federal Rules of Civil Procedure, Arthur v. JP Morgan Chase

Bank, NA, 569 F. App’x 669, 681 (11th Cir. 2014), such a standard

applies only when the RICO claim is based on fraud or mistake, see

D. Penguin Bros. Ltd. v. City Nat’l Bank, 587 F. App’x 663, 666

(2d Cir. 2014) (“In the RICO context, a plaintiff must plead

predicate acts sounding in fraud or mistake according to the

particularity requirement of Rule 9(b); for other elements of a

RICO claim—such as non-fraud predicate acts or . . . the existence

of an ‘enterprise’—a plaintiff’s complaint need satisfy only the

‘short and plain statement’ standard of Rule 8(a).”); Cardenas v.

Toyota Motor Corp., 418 F. Supp. 3d 1090, 1098 (S.D. Fla. 2019)

(“[B]ecause particularity pleading under Rule 9(b) is limited to

circumstances constituting fraud, the non-fraud elements of a RICO

claim can be alleged under Rule 8(a) standards.” (citations and

marks omitted)). As the predicate acts in plaintiff’s RICO claim

are not based in fraud, the Court finds Rule 9 is not applicable.

See Magnifico v. Villanueva, 783 F. Supp. 2d 1217, 1229, 1229 n.9

(S.D. Fla. 2011) (in addressing RICO allegations, court applied

Rule 9(b) to “fraud-related predicate acts,” such as mail, wire,

and immigration document fraud, and Rule 8 to “non-fraud predicate

acts,” such as human trafficking).

The defendants also argue that plaintiff lacks standing

because personal injuries cannot be remedied by RICO. (Doc. #18,

p. 19; Doc. #20, p. 17.) There is some authority to suggest the

Florida RICO statute, unlike the federal equivalent, does not

“expressly limit recovery” to persons who have suffered injury to

their business or property, and that recovery for personal injuries

may be allowed. Berber v. Wells Fargo Bank, N.A., 2018 WL

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

motion will be denied on this basis.

Plaintiff’s RICO claim is asserted under sections 772.104(1)

and (2), which provide civil remedies for violations of section

772.103, Florida Statutes. (Doc. #1, ¶ 162.) Section 772.103

contains four subsections of prohibited activities. § 772.103,

Fla. Stat. R&M and Vocisano argue that because plaintiff fails

“to specify the particular subsection of Section 772.103 giving

rise to a Florida RICO claim,” the claim is defective. (Doc. #20,

p. 14.) Plaintiff fails to address this argument in her response.

This court has previously stated that a RICO claim’s failure

to identify which subsection of section 772.103 is implicated is

sufficient to warrant dismissal. Lennon v. Marriott Ownership

Resorts, Inc., 2019 WL 1440092, *10 (M.D. Fla. Mar. 31, 2019);

Signeo Int’l Ltd. v. Wade, 2013 WL 12153590, *6 (M.D. Fla. Apr. 1,

2013). However, the Court finds dismissal unnecessary in this

case because it is apparent which subsection plaintiff is relying

upon. Section 772.103(3) makes it unlawful for any person

associated with any enterprise to conduct or participate in such

enterprise through a pattern of criminal activity. In the

Complaint, plaintiff alleges the defendants “conducted or

participated in . . . the affairs of their respective RICO

Enterprises through a pattern of numerous acts of racketeering

activity . . . in violation of Fla. Stat. § 772.103.” (Doc. #1,

¶ 167.) Because this allegation tracks the language of subsection

three, the Court finds it provides sufficient notice of the

applicable provision. Accordingly, the Court denies R&M and

Vocisano’s request for dismissal on this basis.

Each of the motions also argues plaintiff has insufficiently

pled the enterprise element of her claim. (Doc. #18, p. 20; Doc.

#20, pp. 14-16.) Florida’s RICO statute defines enterprise to

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

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

fact enterprise is simply a continuing unit that functions with a

common purpose.” Boyle v. United States, 556 U.S. 938, 948 (2009).

To sufficiently plead such an enterprise, “a plaintiff must allege

that a group of persons shares three structural features: (1) a

purpose, (2) 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 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 S.Y.’s sex traffickers for the

common purpose of profiting off an established sex trafficking

scheme.” (Doc. #1, ¶ 166.) Plaintiff asserts this “association-

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

and that the defendants conducted or participated in their

enterprises through a pattern of criminal activity, “related by

their common purpose to profit off an institutionalized sex

trafficking scheme.” (Id. ¶¶ 166-67.) 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”).

Best Western also argues the Complaint fails to sufficiently

plead the “pattern of criminal activity” element. (Doc. #18, pp.

19-20.) 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.).

Plaintiff’s Florida RICO claim is predicated on the

commission of human trafficking crimes in violation of section

787.06, Florida Statutes. (Doc. #1, ¶¶ 168, 170); see also §

772.102(1)(a)15., Fla. Stat. (listing “human trafficking” under

Chapter 787 among the types of “criminal activity” covered by the

Florida RICO 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.

The Complaint alleges plaintiff was trafficked on a “regular,

consistent and/or repeated basis” at various hotels in Naples,

Florida, and at the Best Western Hotel beginning in 2013. (Doc.

#1, ¶ 86.) The Complaint describes how the sex trafficking

occurred at the Best Western Hotel and the “routine conduct” taking

place as a result, as well as alleges the defendants’ employees

participated in the trafficking, made promises to the traffickers

not to interfere with it, and knowingly turned a blind eye to it.

(Id. ¶¶ 90-91, 93, 98, 134-36.) Viewing the allegations in the

light most favorable to plaintiff, the Court finds them sufficient

to allege a pattern of criminal activity for purposes of Florida’s

RICO statute.

Accordingly, the Court finds the Complaint’s Florida RICO

claim sufficiently pled and therefore will deny the motions to

5

dismiss the 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, ¶¶ 183-97.) Plaintiff also alleges the defendants had

actual or constructive knowledge of sex trafficking occurring on

5

To the extent Best Western argues plaintiff fails to state

a plausible claim for RICO conspiracy (Doc. #18, pp. 20-21), the

Court finds this issue moot. Although plaintiff uses the phrase

“conducted or participated in, or conspired to conduct or

participate in, the affairs” of the RICO enterprises (Doc. #1, ¶

167), there does not appear to be a separate conspiracy claim

within Count Two.

the premises, that they knew or should have known the risk of such

criminal conduct taking place would be unreasonably high without

appropriate precautions, and that they had actual or constructive

knowledge of the dangerous condition plaintiff was in. (Id. ¶¶

188-90.)

(a) Statute of Limitations

The motions argue the premise liability claim should be

dismissed because it is barred by the relevant statute of

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

Florida law, the statute of limitations for negligence claims is

four years. § 95.11(3)(a), Fla. Stat.

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

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

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

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

dismissal for failure to state a claim on statute of limitations

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

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

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

2018) (marks and citation omitted).

Plaintiff alleges the sex trafficking occurred at the Best

Western Hotel “from approximately 2013 and continuing through

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

argue that because plaintiff did not file her lawsuit until

December 2019, her premise liability claim is at least partially

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

“Under Florida law, the statute of limitations begins to run

when the cause of action accrues.” Carnival Corp. v. Rolls-Royce

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

95.031, Fla. Stat.). “A cause of action accrues when the last

element constituting the cause of action occurs.” § 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 Best Western Hotel between 2013 and February

2016. The Court finds such allegations sufficient to invoke the

continuing tort doctrine. See Nat’l Sourcing, Inc. v. Bracciale,

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

that a defendant’s actions “continued to this day” inferred

continuous tortious conduct, thereby making it plausible for the

plaintiffs to assert the continuing tort doctrine as a basis to

toll the statute of limitations). Accordingly, the Court finds

that plaintiff’s premise liability claim did not accrue until

February 2016, and therefore she had until February 2020 to file

a complaint asserting premise liability.

(1) Best Western

Plaintiff met this deadline by filing her First Amended

Complaint against Best Western on December 31, 2019. S.Y. et al

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

the Court determined severance of the parties was appropriate in

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

Complaint was filed in August 2020, it appears that the December

2019 date is applicable for statute of limitations purposes under

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

Civil Procedure.

Relation back is a legal fiction employed to salvage

claims that would otherwise be unjustly barred by a

limitations provision. See McCurdy v. United States, 264

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

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

Under Rule 15, a claim in an amended complaint relates

back to the filing date of the original complaint if it

“asserts a claim or defense that arose out of the

conduct, transaction, or occurrence set out—or attempted

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

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

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

negligence might be asserted,” but the new claims

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

that the plaintiff would have to prove “completely

different facts” than required to recover on the claims

in the original complaint, the new claims do not relate

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

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

Accordingly, since it is not apparent from the face of the

Complaint that the claim is time-barred, dismissal based upon the

statute of limitations affirmative defense is not appropriate.

(2) R&M and Vocisano

R&M and Vocisano were not named in the December 2019 First

Amended Complaint. Rather, they were first added as defendants in

April 2020. S.Y. et al v. Naples Hotel Co. et al, Case No. 2:20-

cv-118 (Doc. #85.) Nonetheless, the Court declines to dismiss

based on the statute of limitations. As noted, plaintiff is not

required to negate an affirmative defense in her complaint. 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

6

or equitable tolling. Therefore, the motion to dismiss is denied

at this stage of the proceedings.

To the extent R&M and Vocisano seek dismissal of the other

negligence claims on the same grounds (Doc. #20, p. 18), the

7

Court’s ruling applies to those claims as well.

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.

7

R&M and Vocisano also suggest the negligence-based claims

fail because plaintiff does not allege the specific dates upon

which the acts occurred. (Doc. #20, p. 18). The Court disagrees.

(b) Failure to State a Claim

Both defendants challenge the duty element of the premise

liability claim. Best Western argues the claim fails because the

allegations of agency are insufficient. (Doc. #18, pp. 22-23.)

However, as the Court has determined otherwise, Best Western’s

argument is rejected. R&M and Vocisano argue there could be no

duty to protect plaintiff from the criminal conduct of third

parties because such conduct was not foreseeable. (Doc. #20, pp.

18-19.) 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).

See Watts v. City of Port St. Lucie, Fla., 2016 WL 633716, *3 (M.D.

Fla. Feb. 17, 2016) (“The failure to allege the dates does not,

alone, render the claims implausible under Twombly, given the other

factual allegations in the First Amended Complaint.”).

The Complaint contains sufficient allegations that sex

trafficking was occurring at the Best Western Hotel and that the

defendants knew or should have known of it. (Doc. #1, ¶¶ 57-64,

98-107, 159.) The Complaint also contains sufficient allegations

to support a claim of an agency relationship between Best Western

and R&M and Vocisano, and any factual challenge to such a

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

Mobil Oil Corp., 648 So. 2d at 120. Accordingly, the Court finds

the allegations in the Complaint are sufficient to satisfy the

notice pleading requirements.

Best Western also argues the claim fails because the Complaint

does not plausibly allege that it possessed or controlled the

premises. (Doc. #18, p. 23.) The Court disagrees. As noted, a

premise liability claim requires a defendant possess or control

the premises at issue. Lisanti, 787 So. 2d at 37. Here, the

Complaint alleges the defendants were the “owners, operators,

managers, supervisors, controllers and innkeepers” of the Best

Western Hotel, and that Best Western exercised control over the

means and methods of how R&M and Vocisano conducted business at

8

the hotel. (Doc. #1, ¶¶ 30, 115.) While Best Western may dispute

8

Attached to both motions are a Collier County Property

Appraiser summary and a warranty deed listing R&M and/or Vocisano

as the owner(s) of the hotel property. (Doc. #18-1, p. 26; Doc.

#18-2, pp. 27-30; Doc. #20-1, p. 26; Doc. #20-2, pp. 28-31.) The

defendants request the Court take judicial notice of these records

to prove ownership of the hotel at issue. (Doc. #18, pp. 5-6;

these allegations, the Court must accept them as true at this stage

of the proceedings and finds them sufficient to allege Best Western

had sufficient control of the hotel for premise liability purposes.

(4) Negligent Hiring, Supervision, and Retention

Count Four of the Complaint asserts a claim of negligent

hiring, supervision, and retention against the defendants. (Doc.

#1, p. 45.) The motions seek dismissal of the claim based on

pleading deficiencies. The defendants first argue plaintiff has

improperly lumped multiple claims together. (Doc. #18, pp. 23-

24; Doc. #20, p. 19.) “A party may set out 2 or more statements

of a claim or defense alternatively or hypothetically, either in

a single count or defense or in separate ones. If a party makes

alternative statements, the pleading is sufficient if any one of

them is sufficient.” Fed. R. Civ. P. 8(d)(2). The Court finds

that the claims are properly set forth in a single count.

To state a claim for negligent hiring, plaintiff must allege

facts showing that

(1) the employer was required to make an appropriate

investigation of the employee and failed to do so; (2)

an appropriate investigation would have revealed the

Doc. #20, p. 4.) The Court declines to do so. See Dippin’ Dots,

Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197, 1204 (11th Cir.

2004) (recognizing that “a court has wide discretion to take

judicial notice of facts”). The Court has found the Complaint

sufficiently alleges an agency relationship between Best Western

and R&M and Vocisano. Accordingly, whether R&M and/or Vocisano

are listed on public records as the owner of the Best Western Hotel

is not dispositive to any of the claims alleged in the Complaint.

unsuitability of the employee for the particular duty to

be performed or for employment in general; and (3) it

was unreasonable for the employer to hire the employee

in light of the information he knew or should have known.

Groover v. Polk Cty. Bd. of Cty. Comm’rs, 460 F. Supp. 3d 1242,

1251 (M.D. Fla. 2020) (quoting Malicki v. Doe, 814 So. 2d 347, 362

(Fla. 2002)). “Different from negligent hiring, ‘[n]egligent

retention occurs when, during the course of employment, the

employer becomes aware or should have become aware of problems

with an employee that indicated his unfitness, and the employer

fails to take further action such as investigating, discharge, or

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

F. Supp. 1451, 1461 (M.D. Fla. 1998)). “Florida law also holds

employers liable for reasonably foreseeable damages resulting from

the negligent training of its employees and agents.” Clary v.

Armor Corr. Health Servs., Inc., 2014 WL 505126, *4 (M.D. Fla.

Feb. 7, 2014) (citing Lewis v. City of St. Petersburg, 260 F.3d

1260, 1265 (11th Cir. 2001)). “For an employer to owe a plaintiff

a duty, the plaintiff must be in the zone of risk that was

reasonably foreseeable to the employer.” Id. (citation omitted).

Accordingly, to state a claim, the plaintiff must allege

facts that would establish a nexus between the plaintiff

and the tortfeasor’s employment from which a legal duty

would flow from the defendant-employer to the plaintiff.

The plaintiff must then establish that the defendant-

employer breached that duty and that the breach caused

him damage.

Id. (citations omitted).

The Complaint alleges each defendant was in control of the

hiring, instructing, training, supervising, and terminating of the

hotel employees, and that each defendant had a duty to make an

appropriate investigation of the employees. (Doc. #1, ¶¶ 205-06.)

The Complaint further alleges that the defendants knew or should

have known that hotel employees were “allowing criminals to rent

rooms for prostitution and drug dealing,” “failing to either

identify and/or report the human sex trafficking and foreseeable

harm” of plaintiff, and “failing to refuse continued lodging

services to human sex traffickers.” (Id. ¶¶ 208-10.) The

Complaint concludes that the defendants were negligent in their

hiring, employment, supervision, and termination decisions

regarding the employees, and that the sex trafficking of plaintiff

was a foreseeable and direct result. (Id. ¶¶ 211-15.) The Court

finds these allegations sufficient to state plausible claims for

negligent hiring, and negligent supervision/retention.

Both motions argue there are insufficient allegations that

the defendants knew of any unfit employees and failed to act.

(Doc. #18, p. 24; Doc. #20, p. 20); see also Bright v. City of

Tampa, 2017 WL 5248450, *8 (M.D. Fla. May 17, 2017) (“When an

employer fails to take a corrective action against an employee

because the employer had no notice of problems with the employee’s

fitness, the employer is not liable under Florida law for negligent

supervision or retention.”). The Court disagrees. The Complaint

sufficiently alleges facts suggesting sex trafficking was

occurring at the hotel, that the employees knew of it and failed

to prevent it, and that due to their control over the employees,

each defendant knew or should have known of it. (Doc. #1, ¶¶ 90-

111, 202-210.) The Court finds such allegations sufficient at

this stage of the proceedings.

R&M and Vocisano further argue the claim should be dismissed

because the Complaint does not identify the alleged employees at

issue. (Doc. #20, p. 20.) The Complaint alleges “[e]ach and

every” defendant “was in control of the hiring” of hotel employees,

and responsible for “instructing, training and supervising,” yet

employees failed “to refuse continued lodging services to human

sex traffickers” and failed “to either identify and/or report the

human sex trafficking.” (Doc. #1, ¶¶ 205, 209-10.) The Court is

required to accept all factual allegations as true, Erickson, 551

U.S. at 94, and “[i]n adjudicating a motion to dismiss, the

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

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

App’x 994, 995 (11th Cir. 2012). The Court finds that specific

9

employees are not required to be named. Accordingly, the Court

9

To the extent Best Western suggests it did not hire any of

the employees at the hotel (Doc. #18, p. 24), the Complaint alleges

that Best Western made “employment decisions” for the hotel. (Doc.

#1, ¶ 115.)

denies the request to dismiss the negligent hiring, supervision,

and retention claim.

(5) Negligent Rescue

Count Five of the Complaint asserts a claim of negligent

rescue against R&M and Vocisano. (Doc. #1, p. 47.) The Complaint

alleges R&M and Vocisano, as the owners and operators of the Best

Western Hotel, had a duty to keep the premises safe and prevent

foreseeable criminal activity, as well as a duty “to make safe a

dangerous condition at the Best Western Naples Plaza Hotel and to

rescue their hotel guests, specifically Plaintiff S.Y., from the

peril they created.” (Id. ¶¶ 220, 223, 229.) The Complaint

alleges that by various acts and omissions, R&M and Vocisano

breached these duties and that the continuous sex trafficking of

plaintiff was the direct and foreseeable result. (Id. ¶¶ 225-27,

231-32, 234.) R&M and Vocisano argue the negligent rescue claim

should be dismissed because it is insufficiently pled. (Doc. #20,

pp. 21-22.)

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

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

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

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

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

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

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

WL 148401, *3 (S.D. Fla. Jan. 14, 2013) (quoting L.A. Fitness,

Int’l, LLC v. Mayer, 980 So. 2d 550, 557 (Fla. 4th DCA 2008)); see

also Abramson v. Ritz Carlton Hotel Co., LLC, 480 F. App’x 158,

161 (3d Cir. 2012) (“Generally, there is no duty to affirmatively

assist an injured person unless a special relationship, such as

that between an innkeeper and its guests, exists between the

parties.” (citation omitted)).

R&M and Vocisano argue that hotels only have a limited duty

to render aid to a guest it knew or should have known was ill or

injured, and that the Complaint contains no plausible facts to

suggest R&M and Vocisano knew plaintiff was in need of aid. (Doc.

#20, p. 21.) However, the Court finds the Complaint contains

sufficient allegations to satisfy this requirement. (Doc. #1, ¶¶

98, 99, 230.)

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

Criminal Enterprise

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

and abetting against R&M and Vocisano. (Doc. #1, p. 50.) The

Complaint accuses R&M and Vocisano of “aiding and abetting unlawful

activity including unlawful confinement, imprisonment, assault and

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

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

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

independent cause of action, and lacks well-pled factual

allegations. (Doc. #20, p. 22.) The Court disagrees.

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

10

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

10

“[A]llegations which demonstrate merely constructive

knowledge, recklessness or gross negligence cannot satisfy the

sufficient to state a claim. Therefore, the Court denies R&M and

Vocisano’s request for dismissal.

C. Personal Jurisdiction

Finally, Best Western argues the Court lacks personal

11

jurisdiction over it in this matter. (Doc. #18, pp. 8-10.) This

Court has previously described the personal jurisdiction

requirements as follows:

To hear a case, a federal court must have

jurisdiction over both the subject matter of the action

and the parties to the action. Ruhrgas AG v. Marathon

Oil Co., 526 U.S. 574, 584 (1999). Absent either, “the

court is powerless to proceed to an adjudication.” Id.

A federal court sitting in diversity may exercise

personal jurisdiction over an out-of-state defendant if:

(1) personal jurisdiction is authorized under the forum

state’s long-arm statute and (2) the exercise of such

jurisdiction comports with constitutional due process.

Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203

(11th Cir. 2015); Licciardello v. Lovelady, 544 F.3d

1280, 1283 (11th Cir. 2008). The exercise of personal

‘knowledge’ element of an aiding and abetting claim under Florida

law.” Angell, 2019 WL 3958262, *9.

11

Typically, the Court would address the personal

jurisdiction issue first, since “[a] court without personal

jurisdiction is powerless to take further action.” Posner v. Essex

Ins. Co., Ltd., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999). However,

because plaintiff asserts personal jurisdiction over Best Western

based in part on tortious acts committed within Florida (Doc. #38,

p. 14), it was first necessary to determine whether the Complaint

stated a cause of action against Best Western. See PVC Windoors,

Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 808 (11th Cir.

2010) (“In Florida, before a court addresses the question of

whether specific jurisdiction exists under the long-arm statute,

the court must determine ‘whether the allegations of the complaint

state a cause of action.’” (quoting Wendt v. Horowitz, 822 So. 2d

1252, 1260 (Fla. 2002)).

jurisdiction comports with due process if the non-

resident defendant has established “certain minimum

contacts with the forum such that the maintenance of the

suit does not offend traditional notions of fair play

and substantial justice.” Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 414

(1984) (quoting Int’l Shoe Co. v. Washington, 326 U.S.

310, 316 (1945)).

The plaintiff “bears the initial burden of alleging

in the complaint sufficient facts to make out a prima

facie case of jurisdiction.” United Techs. Corp. v.

Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). A prima

facie case is established if the plaintiff alleges

enough facts to withstand a motion for directed

verdict. SEC v. Carrillo, 115 F.3d 1540, 1542 (11th Cir.

1997) (citation omitted). “First, the plaintiff must

allege sufficient facts in [its] complaint to initially

support long arm jurisdiction before the burden shifts

to the defendant to make a prima facie showing of the

inapplicability of the statute.” Future Tech. Today,

Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th

Cir. 2000) (citation omitted). If the defendant sustains

its burden by raising “a meritorious challenge to

personal jurisdiction” “through affidavits,

documents[,] or testimony,” the burden shifts back to

the plaintiff. Sculptchair, Inc. v. Century Arts, Ltd.,

94 F.3d 623, 627 (11th Cir. 1996). Plaintiff is then

required to “substantiate the jurisdictional allegations

in the complaint by affidavits or other competent proof,

and not merely reiterate the factual allegations in the

complaint.” Future Tech. Today, Inc., 218 F.3d at

1247 (citation omitted).

Pennisi v. Reed, 2018 WL 3707835, *2 (M.D. Fla. Aug. 3, 2018)

(footnote and marks omitted). If the plaintiff’s complaint and

the defendant’s evidence conflict, “the district court must

construe all reasonable inferences in favor of the

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

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

1990)).

Florida’s long-arm statute authorizes general and specific

personal jurisdiction. § 48.193(1)-(2), Fla. Stat. Section

48.193(2) addresses the exercise of general personal jurisdiction,

providing that “[a] defendant who is engaged in substantial and

not isolated activity within this state, whether such activity is

wholly interstate, intrastate, or otherwise, is subject to the

jurisdiction of the courts of this state, whether or not the claim

arises from that activity.” In contrast, “specific personal

jurisdiction authorizes jurisdiction over causes of action arising

from or related to the defendant’s actions within Florida and

concerns a nonresident defendant’s contacts with Florida only as

those contacts related to the plaintiff’s cause of action.” Louis

Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1352 (11th Cir.

2013) (citation omitted).

Best Western argues plaintiff has failed to meet her burden

of alleging sufficient facts to make out a prima facie case of

jurisdiction. (Doc. #18, p. 8.) Specifically, Best Western argues

the Court lacks both general and specific jurisdiction over it.

(Id. pp. 8-10.) Plaintiff responds that the allegations are

sufficient to establish specific jurisdiction over Best Western

(Doc. #38, p. 14), and the Court agrees.

Section 48.193(1)(a)(2), Florida Statutes, provides that a

person “who personally or through an agent” commits a tortious act

within this state “thereby submits himself or herself . . . to the

jurisdiction of the courts of this state for any cause of action

arising from . . . [c]ommitting a tortious act within this state.”

“The statute expressly requires that the tort be committed in

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

2d 854, 857 (Fla. 3d DCA 2007). “In analyzing whether tortious

conduct has occurred within Florida, courts have looked to whether

the nonresident defendant committed a substantial aspect of the

alleged tort in Florida.” NHB Advisors, Inc. v. Czyzyk, 95 So. 3d

444, 448 (Fla. 4th DCA 2012) (marks and citation omitted); see

also Internet Sols. Corp. v. Marshall, 557 F.3d 1293, 1296 (11th

Cir. 2009) (“For the purposes of the [long-arm] statute, the

defendant does not have to be physically present in Florida for

the tortious act to occur within that state.”); 3Lions Publ’g,

Inc. v. Interactive Media Corp., 389 F. Supp. 3d 1031, 1037 (M.D.

Fla. 2019) (“Under the long-arm statute, a nonresident defendant

need not have a physical presence in Florida for the Court to

assert personal jurisdiction. Instead, such a nonresident

defendant need only commit a tortious act that causes injury within

Florida.” (citations omitted)).

Because the Court has found the allegations of an agency

relationship between Best Western and R&M and Vocisano are

sufficient, the Court also finds the Complaint contains

allegations that Best Western committed tortious conduct within

Florida sufficient to establish specific jurisdiction. See Faro

Techs. Inc. v. CimCore Corp., 2006 WL 4975982, *5 (M.D. Fla. June

27, 2006) (noting that “[i]n Florida, a corporation may be subject

to jurisdiction when it commits a tortious act or transacts

business through its agents in the forum state”); see also Doe

S.W., 2020 WL 1244192, *3 (finding specific jurisdiction over Best

Western where the plaintiff alleged, inter alia, (1) that sex

trafficking was occurring in the forum and Best Western was

willfully blind to its prevalence at hotel locations, (2) that

Best Western failed to adequately train and monitor its properties

in the forum while receiving profits from the forum hotels, and

(3) that there was “a causal connection between Best Western’s

activities managing hotels in [the forum] and the harm to plaintiff

as a result of her sex trafficking in these hotel locations”).

Therefore, the Court denies Best Western’s request to dismiss for

lack of personal jurisdiction.

Accordingly, it is now

ORDERED:

1. Defendant Best Western International, Inc.’s Motion to

Dismiss Counts I – IV of Plaintiff’s Complaint and

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

2. Defendants R&M Real Estate Company, Inc. and Robert

Vocisano Co-Tr’s Motion to Dismiss with Prejudice

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

is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 7th day of

June, 2021.

Eko

JGH E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

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