The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
NAPLES DIVISION
A.D., an individual,
Plaintiff,
v. Case No: 2:22-cv-652-JES-NPM
BEST WESTERN INTERNATIONAL,
INC., R&M REAL ESTATE
COMPANY, INC., ROBERT
VOCISANO, and MARIO
VOCISANO,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants R&M Real
Estate Company, Inc., Robert Vocisano and Mario Vocisano's Amended
Motion to Dismiss Plaintiff's Complaint or, in the Alternative, to
Strike (Doc. #19) filed on November 18, 2022, and defendant Best
Western International, Inc.’s Motion to Dismiss Plaintiff’s
Complaint (Doc. #21) filed on November 21, 2022. Plaintiff filed
Responses in Opposition to both motions. (Docs. ## 26, 27.)
Defendants filed Replies. (Docs. ## 33, 34.)
I.
The one-count Complaint (Doc. #1) in this case is brought
pursuant to the Trafficking Victims Protection Reauthorization Act
(TVPRA). The Complaint alleges that plaintiff A.D. (Plaintiff or
A.D.) is a survivor of sex trafficking perpetrated by non-parties.
A.D. asserts that she was “repeatedly” (Id. at ¶ 7) “trafficked
for commercial sex throughout Lee, Hillsborough, and Collier
Counties in Florida,” (Id. at ¶ 4) including “the Best Western
Naples Plaza Hotel” in Naples, Florida (Id. at ¶ 11b). Plaintiff’s
cause of action is not against her traffickers, but against a
franchisor and an owner of one of the many hotels from which she
was trafficked.
Plaintiff sues defendants Best Western International, Inc.
(BWI) and Robert Vocisano and Mario Vocisano doing business as the
Best Western Naples Plaza Hotel (BW Naples). BWI, an Arizona
corporation headquartered in Arizona, owns the Best Western Hotels
& Resorts brand, one of the largest hotel brands in the world.
(Id. at ¶ 11.) BWI licenses the brand to over 4,700 hotels
worldwide, with over 2,000 such hotels in North America. (Id. at
¶ 11a.) One of the branded hotels is the Best Western Naples
Plaza Hotel (BW Naples hotel) located in Naples, Florida. (Id.
at ¶ 11b.) Plaintiff asserts that BWI “owns, supervises, and/or
operates” this hotel. (Id. at ¶¶ 11b, 32a.) BW Naples is owned,
operated, and managed by Robert and Mario Vocisano who also own
and operate R&M Real Estate Company (Vocisano defendants), which
shares in management decisions at BW Naples. (Id. at ¶¶ 12, 13.)
The TVPRA is a criminal statute that also provides a civil
remedy to victims of sex trafficking. Section 1591(a) of the Act
imposes criminal liability for certain sex trafficking:
(a) Whoever knowingly--
(1) in or affecting interstate or foreign
commerce, or within the special maritime and
territorial jurisdiction of the United States,
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.A. § 1591(a). In addition to a criminal punishment, the
TVPRA provides the following civil remedy:
(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).
Thus, the TVRPA authorizes a victim of sex trafficking to
bring a direct civil claim against the perpetrator of the
trafficking and a “beneficiary” civil claim against “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 [the TVPRA].” 18
U.S.C. § 1595(a). To state a claim for beneficiary liability under
the TVPRA, Plaintiff must plausibly allege that the defendant “(1)
knowingly benefited (2) from participating in a venture; (3) that
venture violated the TVPRA as to [A.D.]; and (4) [Defendants] knew
or should have known that the venture violated the TVPRA as to
[A.D.].” Doe v. Red Roof Inns, Inc., 21 F.4th 714, 726 (11th Cir.
2021).
II.
BWI asserts that the district court lacks personal
jurisdiction over it because plaintiff has failed to establish
either general or specific jurisdiction, as required by due
process. (Doc. #21, pp. 7-9.) Plaintiff responds that the court
has specific jurisdiction over BWI because she has sufficiently
alleged BWI committed a tortious act within the State of Florida.
(Doc. #27, p. 20.) The Court agrees with plaintiff.
“A court must have the power to decide the claim before it
(subject-matter jurisdiction) and power over the parties before it
(personal jurisdiction) before it can resolve a case.” Lightfoot
v. Cendant Mortg. Corp., 580 U.S. 82, 95 (2017) (citing Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 583–585 (1999)). The Supreme
Court has recognized two kinds of personal jurisdiction: “general
(sometimes called all-purpose) jurisdiction and specific
(sometimes called case-linked) jurisdiction.” Ford Motor Co. v.
Montana Eighth Judicial Dist. Court, 141 S. Ct. 1017, 1024 (2021)
(citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
915, 919 (2011)). The Court summarized the differences:
A state court may exercise general
jurisdiction only when a defendant is
essentially at home in the State. Ibid.
General jurisdiction, as its name implies,
extends to ‘any and all claims’ brought
against a defendant. Ibid. Those claims need
not relate to the forum State or the
defendant's activity there; they may concern
events and conduct anywhere in the world. But
that breadth imposes a correlative limit: Only
a select set of affiliations with a forum will
expose a defendant to such sweeping
jurisdiction. [] In what we have called the
“paradigm” case, an individual is subject to
general jurisdiction in her place of domicile.
. . . .
Specific jurisdiction is different: It covers
defendants less intimately connected with a
State, but only as to a narrower class of
claims. The contacts needed for this kind of
jurisdiction often go by the name “purposeful
availment.” The defendant, we have said, must
take “some act by which [it] purposefully
avails itself of the privilege of conducting
activities within the forum State.” [] The
contacts must be the defendant's own choice
and not “random, isolated, or fortuitous.”
They must show that the defendant deliberately
“reached out beyond” its home—by, for example,
“exploi[ting] a market” in the forum State or
entering a contractual relationship centered
there. [] Yet even then—because the defendant
is not “at home”—the forum State may exercise
jurisdiction in only certain cases. The
plaintiff’s claims, we have often stated,
“must arise out of or relate to the
defendant's contacts” with the forum. [] Or
put just a bit differently, “there must be ‘an
affiliation between the forum and the
underlying controversy, principally, [an]
activity or an occurrence that takes place in
the forum State and is therefore subject to
the State's regulation.’”
Ford Motor Co., 141 S. Ct. at 1024–25 (internal citations omitted).
In order for a court to exercise specific
jurisdiction over a claim, there must be an
‘affiliation between the forum and the
underlying controversy, principally, [an]
activity or an occurrence that takes place in
the forum State.’ [] When there is no such
connection, specific jurisdiction is lacking
regardless of the extent of a defendant's
unconnected activities in the State.
Bristol-Myers Squibb Co. v. Superior Court of California, San
Francisco Cnty., 582 U.S. 255, 264 (2017) (internal citations
omitted).
“Federal courts ordinarily follow state law in determining
the bounds of their jurisdiction over persons.” Daimler AG v.
Bauman, 571 U.S. 117, 125 (2014). Florida's long-arm statute
provides for both specific and general personal jurisdiction. Fla.
Stat. §§ 48.193(1)-(2); Madara v. Hall, 916 F.2d 1510, 1516 n.7
(11th Cir. 1996). Here, plaintiff only asserts the existence of
specific personal jurisdiction (Doc. #27, p. 20), so the Court
need not address BWI’s assertion that there is no general
jurisdiction.
Procedurally, a motion to dismiss for lack of personal
jurisdiction is governed by Fed. R. Civ. P. 12(b)(2). To withstand
such a motion to dismiss, plaintiff must plead sufficient facts in
the complaint to establish a prima facie case of jurisdiction over
the non-resident defendant. Louis Vuitton Malletier, S.A. v.
Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013). The court accepts
the facts alleged in the complaint as true to the extent they are
uncontroverted by defendant’s affidavits. Consol. Dev. Corp. v.
Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000). If defendant
challenges plaintiff's allegations through non-conclusory
affidavits or other competent evidence, plaintiff must
substantiate the jurisdictional allegations in the complaint by
affidavits, testimony, or other evidence of her own. Louis Vuitton
Malletier, 736 F.3d at 1350; Future Tech. Today, Inc. v. OSF
Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). Where the
evidence conflicts, the district court must construe all
reasonable inferences in favor of the plaintiff. PVC Windoors,
Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 810 (11th Cir.
2010).
The Complaint alleges that Plaintiff was trafficked for
commercial sex throughout a three-county area in Florida,
including being sold via commercial sex transactions at
defendants’ hotel property. (Doc. #1, ¶ 4.) The Complaint
asserts plaintiff was sex trafficked, sexually exploited, and
victimized repeatedly at defendants’ hotel in Naples, Florida.
(Id. at ¶ 7.) BWI “owns, supervises, and/or operates” the BW
Naples hotel, and profited from illegal sex trafficking involving
A.D. at its hotels in Florida, including the BW Naples hotel. (Id.
at ¶¶ 11b, 11d.) The Complaint further asserts that BWI exercised
day-to-day control over the Best Western hotels, including the one
in Naples, through brand standards and the terms of its franchise
agreement (Id. at ¶ 11h), and that BWI and BW Naples caused
injuries to A.D. in Florida by benefiting from the sex trafficking
in Florida (Id. at ¶¶ 11r, 11s, 12).
BWI makes a single-sentence factual argument regarding the
alleged lack of personal jurisdiction:
BWI, a cooperative association without offices
or corporate presence in Florida and not being
the owner or operator or employer for any
staff at the hotel at issue in this case, does
not have sufficient forum-related activities
relating to the claim asserted and so the
Court has no specific jurisdiction over BWI.
(Doc. #21-4, p. 9.) The Affidavit of Brendan Genther (Doc. #18,
Exh. D) contests facts related to general jurisdiction and BWI’s
liability as an owner, supervisor, or operator, but does not
contain a factual contradiction of the sex trafficking of A.D. in
the BW Naples hotel. Due process is not offended by the exercise
of specific jurisdiction by a Florida court over Plaintiff’s claim
in this case. This portion of the motion to dismiss is denied.
III.
BWI argues that dismissal is required because the Complaint
fails to sufficiently allege the dates on which the trafficking
acts took place, which improperly precludes the ability to seek
dismissal based on the statute of limitations. (Doc. #21, p. 25.)
BWI correctly asserts that the statute of limitations for a TVPRA
violation is ten years; that plaintiff alleges she was trafficked
at the Naples hotel in approximately February 2012; and that the
original Complaint was filed on February 11, 2022. (Id.) BWI
argues that the failure to plead the dates of the trafficking
incidents with sufficient specificity to show the claim was not
barred by the statute of limitations requires that the claim be
dismissed. (Id.) The Vocisano defendants also advances the
argument that specific dates are required. (Doc. #19, p. 18.)
There is no legal support for the notion that a complaint
must be dismissed if it fails to negate a potential statute of
limitations affirmative defense on its face. “A statute of
limitations bar is an affirmative defense,” and a plaintiff is
“not required to negate an affirmative defense in [its] complaint.”
La Grasta v. First Union Secs., Inc., 358 F.3d 840, 845 (11th Cir.
2004) (internal quotation marks omitted), abrogated on other
grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).
“[D]ismissal 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) (citation omitted). Other than perhaps the conclusory
statement “Plaintiff’s claims are time-barred” (Doc. #21, p. 3),
BWI does not argue that a time-bar is apparent on the face of the
Complaint. (Id. at 25.) Neither do the Vocisano defendants.
(Doc. #19, p. 18.) In any event, the Court finds that a time-bar
is not apparent on the face of the Complaint. This portion of the
motion to dismiss is denied.
IV.
Defendants also seeks dismissal because, for various reasons,
the Complaint fails to sufficiently plead the cause of action.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must
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.” Twombly, 550 U.S. at 555 (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 plaintiff. Erickson v. Pardus,
551 U.S. 89 (2007). However, “[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). Similarly, “[t]hreadbare 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.
A. Factual Disputes with Allegations In Complaint
The Complaint alleges that BWI “owns, supervises, and/or
operates” the BW Naples hotel. (Doc. #1, ¶¶ 11, 11b, 31a.) BWI
argues that it does not own the subject hotel, and that two public
records from the Property Appraiser’s Office and a “membership
agreement” with the Vocisano defendants establish ownership by
them. (Doc. #21, pp. 4-7.) BWI also disputes the factual claims
that it is in an agency relationship with the Vocisano defendants,
that BWI has the means to control its branded hotels, and that BWI
has day-to-day control over the subject hotel. (Id.) The only
specific reference to the actions of the Vocisano defendants is in
paragraphs 12 and 13 of the Complaint. All other references in
the Factual Allegations are about ‘defendants’ collectively, BWI
or “Brand Hotel Defendants”, and the BW Naples hotel.
None of the three documents cited by BWI are referred to,
incorporated into, or essential to the claim in the Complaint.
The documents, either individually or cumulatively, are not
dispositive of the factual disputes. It is not the function of a
motion to dismiss a complaint to resolve factual disputes, and the
Court declines to do so here. If the allegations are material and
intentionally false, as BWI seems to suggest, BWI may have an
avenue for sanctions against both plaintiff and her counsel
pursuant to Fed. R. Civ. P. 11(c). But factual disputes such as
these will not be resolved on a motion to dismiss. This portion
of the motion to dismiss is denied as to BWI.
As to the Vocisano defendants, there is no factual basis
directed specifically at these defendants and separately from BWI.
Therefore, the Court finds no plausible statement of a claim
against the Vocisano defendants. The allegations are against
‘defendants’ collectively, or BWI individually. The motion to
dismiss will be granted as to the Vocisano defendants without
further discussion of the specific elements of a TVPRA claim.
B. Sufficiency of TVPRA Claim Allegations
BWI asserts that the Complaint fails to plead sufficient facts
to plausibly allege any element of the TVPRA claim. (Doc. #21,
pp. 9-22.) The Court addresses each element in turn.
(1) “Knowingly Benefitted”
To satisfy the first element of a TVPRA beneficiary claim,
plaintiff must allege that defendant “knew it was receiving some
value from participating in the alleged venture.” Red Roof Inns,
21 F.4th at 724. As the Eleventh Circuit stated,
“Knowingly benefits” means “an awareness or
understanding of a fact or circumstance; a
state of mind in which a person has no
substantial doubt about the existence of a
fact.” Knowledge, Black's Law Dictionary (11th
ed. 2019). And Section 1595(a) explains that
a defendant may benefit “financially or by
receiving anything of value.” Accordingly, a
plaintiff like the Does must allege that the
defendant knew it was receiving some value
from participating in the alleged venture.
Id. at 723–24. In the absence of a more stringent statutory
pleading requirement, knowledge “may be alleged generally.” Fed.
R. Civ. P. 9(b).
The Complaint alleges that “BWI knowingly benefited, or
received something of value, from its participation in a venture
which it knew or should have known violated the TVPRA through,
inter alia, royalty payments, licensing fees, and percentages of
the gross room revenue which BWI is entitled to under the franchise
agreements.” (Doc. #1, ¶ 11r.) The Complaint further alleges
that “BWI benefits financially from room rentals and other
incidentals recognized by renting rooms in which the Plaintiff was
sex trafficked.” (Doc. #1, ¶ 11s.) The Court has found that
similar allegations are sufficient to satisfy the first element,
see S.Y. v. Naples Hotel Co., 476 F. Supp. 3d 1251, 1257 (M.D.
Fla. 2020), and that less robust allegations are insufficient,
A.D. v. Holistic Health Healing, Inc., 2:22-cv-641-JES-NPM, 2023
WL 2242507, *2-3 (M.D. Fla. Feb. 27, 2023). While BWI raises
factual disputes, resolution of those disputes is beyond the proper
scope of a motion to dismiss. The Court finds that this element
has been sufficiently pled.
(2) Participation in a Venture
Plaintiff must allege that the benefit(s) received by BWI was
from “participation in a venture” which BWI knew or should have
known has engaged in an act in violation of the TVPRA. 18 U.S.C.
§ 1595(a). The Eleventh Circuit rejected the statutory definition
of “participation in a venture” found in the criminal provision,
§ 1591(e)(4), which defined “participation in a venture” as
“knowingly assisting, supporting or facilitating a violation of
subsection (a)(1).” Instead, the Eleventh Circuit held that
“participation in a venture” in the civil context requires that
plaintiff allege that the franchisor “took part in a common
undertaking or enterprise involving risk and potential profit.”
Red Roof Inns, 21 F.4th at 725.
BWI argues that “participation” requires plaintiff to plead
that an “overt act” was committed to further the alleged sex
trafficking. (Doc. #21, p. 13.) The undersigned has previously
found that it was not necessary to plead an overt act. S.Y. v.
Naples Hotel Co., 476 F. Supp. 3d 1251, 1257 (M.D. Fla. 2020).
The more recent Red Roof Inns discussion of this element does not
refer to an overt act pleading requirement. 21 F.4th at 725-27.
When Congress desires an overt act as an element, it knows how to
say so. E.g., 18 U.S.C. § 1531(b)(1)(B). The Court concludes
that the Complaint need not explicitly plead an overt act to be
sufficient.
A complaint must, however, plausibly plead both
“participation” and a “venture.” BWI argues that Complaint does
not sufficiently describe the “venture” and fails to connect any
alleged benefit received to BWI’s alleged participation in the
venture. The Court concludes that A.D. has not plausibly alleged
that BWI participated in a venture that violated the TVPRA.
As in Red Roof Inns, the Court begins with the description of
the venture A.D. alleges. Red Roof Inns, 21 F.4th at 726. The
sex trafficking violation of the TVPRA with respect to A.D. began
in November 2011 when a man not identified in the Complaint “took
advantage of her innocence and forced her into a sexual encounter”
under the guise of a loving relationship and “would soon
traffick[sic] her in hotels throughout Central Florida.” (Doc.
#1, ¶ 34.) A second trafficker soon became involved, and A.D.
became the victim of sex trafficking at the BW Naples hotel
beginning approximately February 2012. (Id. at ¶¶ 35-40.) A.D
would come to that hotel for two or three days and perform
commercial sex acts with 10 to 15 buyers a day. (Id. at ¶ 44.)
The Complaint specifically alleges that A.D. was trafficked in
violation of the TVPRA, which makes it a crime to “cause” a person
under 18 years old to “engage in a commercial sex act.” 18 U.S.C.
§ 1591(a). (Id. at ¶¶ 3-4) The Complaint further alleges that BWI
and the Vocisano defendants “continued to operate a venture which
enabled, harbored, held, facilitated, . . . the repeated and
continuous trafficking, exploitation, and victimization of A.D.
for their own benefit.” (Id. at ¶ 8.) The venture was “engaging
in violations of the TVPRA.” (Id. at ¶ 9.)
The Complaint alleges that defendants “actively participated
in this illegal endeavor by knowingly or negligently providing
lodging in which to harbor A.D. while he was trafficking her.”
(Id. at ¶ 66.) The “participation” with A.D.’s traffickers in the
criminal activity was identified as taking no action while A.D.
was being trafficked at the BW Naples hotel (Id. at ¶ 67) and
failing to take reasonable measures to stop sex trafficking in the
hotel (Id. at ¶ 68).
1
As in Red Roof Inns , the Court finds insufficient factual
allegations to plausibly establish that BWI participated in a
common undertaking of a sex trafficking venture involving risk or
profit. Red Roof Inns, 21 F.4th at 727. The Complaint asserts
that A.D. was present at the BW Naples hotel for only a few days
in February 2012. The “participation” in the sex trafficking
venture is essentially that the franchisor and the hotel operator
1 Doe #1 v. Red Roof Inns, Inc., 21 F.4th 714 (11th Cir.
2021).
did not fight hard enough to keep these traffickers from using
their hotel. The Complaint acknowledges that Defendants opposed
sex traffickers, but fault defendants for taking ineffective steps
to curtail the traffickers. This hardly sounds like participating
in a venture. This is particularly true of a franchisor, which
has no direct contact with its alleged venture partners. See Red
Roof Inns, Inc., 21 F.4th at 726-27 (allegations that the
franchisors received royalty fees based on gross room revenue, and
supervised, oversaw, or controlled the operation of the renting of
rooms at the hotels, showed a financial benefit but not
participation in a common undertaking involving risk or profit);
C.C. v. H.K. Grp. of Co., Inc., No. 1:21-cv-1345-TCB, 2022 WL
467813, at *5, 2022 U.S. Dist. LEXIS 29213, at *11 (N.D. Ga. Feb.
9, 2022)(same); G.G. v. Salesforce.com, Inc., 603 F. Supp. 3d 626,
645 (N.D. Ill. 2022) (“In cases involving hotel franchisors, . .
. claims that branded hotels rented rooms to people they knew or
should have known were engaged in sex trafficking may be
‘sufficient to state a plausible claim against the specific hotels
where the plaintiff was trafficked, but they do not make a
plausible claim that the franchisors directly participated in a
venture that trafficked the plaintiff.’” (citation omitted)
(emphasis in original); J.M. v. Choice Hotels Int'l, Inc., No.
2:22-cv-00672-KJM-JDP, 2022 WL 10626493, at *4, 2022 U.S. Dist.
LEXIS 190054, at *11 (E.D. Cal. Oct. 18, 2022) (finding no
participation in a venture where the franchisor did not directly
rent rooms to the sex trafficker, rather franchisee hotels did).
“[T]he TVPRA does not impose an affirmative duty to police and
prevent sex trafficking.” A.B. v. Wyndham Hotels & Resorts, Inc.,
532 F. Supp. 3d 1018, 1027 (D. Or. 2021) (citation omitted). See
also Red Roof Inns, Inc., 21 F.4th at 727 (“[O]bserving something
is not the same as participating in it.”); L.H. v. Marriott Int'l,
Inc., 604 F. Supp. 3d 1346, 1361 (S.D. Fla. 2022) (finding that
“any local business venture that simply allowed the trafficking by
‘failing to combat sex trafficking through ineffective policies,
procedures, and training for the purpose of maximizing their
profit’” was “not enough to trigger TVPRA liability.” (emphasis in
original)); A.D. v. Wyndham Hotels & Resorts, Inc., 4:19CV120,
2020 U.S. Dist. LEXIS 250759, 2020 WL 8674205, at *3 (E.D. Va.
July 22, 2020) (“[A] failure to affirmatively prevent or inhibit
sex trafficking does not constitute participation.”).
The Court finds that this element has not been plausibly pled
in the Complaint, which will be dismissed without prejudice.
(3) Objective of the Venture
To satisfy the third element, plaintiff must allege that “the
venture in which the defendant participated and from which it
knowingly benefited must have violated the TVPRA as to the
plaintiff.” Red Roof Inns, 21 F.4th at 725. Here, the Complaint
alleges that A.D. was sex trafficked in violation of § 1591(a).
(Doc. #1, ¶¶ 7, 8, 31.) These allegations are sufficiently pled.
(4) Actual or Constructive Knowledge
The final element of a TVPRA beneficiary claim comes from the
statutory requirement that the defendant “knew or should have known
[that the venture] has engaged in an act in violation of this
chapter.” 18 U.S.C. § 1595(a). This requires the plaintiff to
allege that the defendant had either actual or constructive
knowledge that the venture violated the TVPRA as to the plaintiff.
Red Roof Inns, 21 F.4th at 725. Thus, Plaintiff must plausibly
allege that BWI at least constructively knew “that the venture in
which they participated and from which they benefited violated the
TVPRA as to” A.D. Red Roof Inns, 21 F.4th at 725. Since the
“participation” and “venture” components are not sufficiently
plead, the actual or constructive knowledge of participation in
such a venture cannot be plausible pled either.
V.
BWI also challenges the alleged vicarious liability and the
availability of punitive damages. (Doc. #21, pp. 22-25, 25-26.)
The Vocisano defendants seek to strike certain paragraphs and argue
that plaintiff has not stated a claim for punitive damages. (Doc.
#19, pp. 7-8, 18-19.) Since the complaint must be amended, the
Court finds it unnecessary to address these issues at this time.
Accordingly, it is hereby
ORDERED :
1. Defendants R&M Real Estate Company, Inc., Robert Vocisano
and Mario Vocisano's Amended Motion to Dismiss Plaintiff's
Complaint or, in the Alternative, to Strike (Doc. #19) is
GRANTED as to the motion to dismiss and DENIED as moot on
the motion to strike.
2. Defendant Best Western International, Inc.’s Motion to
Dismiss Plaintiff’s Complaint (Doc. #21) is GRANTED IN PART
AND DENIED IN PART.
3. The Complaint is dismissed without prejudice to filing an
Amended Complaint within TWENTY-ONE (21) DAYS of this
Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this 14th day
of April 2023.
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off le hy dE. Ah Look
JGHN E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record