Doe 1 v. Varsity Brands, LLC

1IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

JOHN DOE 1, Case No. 1:22-CV-02139

Plaintiff,

-vs-

JUDGE PAMELA A. BARKER

VARSITY BRANDS, LLC., et al.,

Defendant. MEMORANDUM OPINION & ORDER

Currently pending before the Court is Plaintiff John Doe 1’s ("Plaintiff”) Motion to Alter or

Amend Judgment Pursuant to F.R.C.P. 59(E) and Memorandum in Support, both filed on August 29,

2023 and collectively referred to herein as “Plaintiff’s Motion.” (Doc. Nos. 112, 113.) On September

28, 2023, Defendant Taji Davis (“Davis”) filed his Opposition to Plaintiff’s Motion (“Davis’s

Opposition”). (Doc. No. 118.) In Plaintiff’s’ Motion, Plaintiff asks this Court to alter or amend or

reconsider only or “solely” its ruling dismissing claims under the Child Abuse Victim’s Rights Act

(“CAVRA”) against “the perpetrators of the abuse, Defendants Davis and Hale.”1

On November 29, 2023, the Court issued an Order that in part addressed certain arguments

raised in Plaintiff’s Motion and directed Plaintiff and Davis to provide supplementary briefing that:

1.) in the context of 18 U.S.C. § 2242(b), identifies all criminal offenses for which either Defendant

Hale (“Hale”) or Davis can be charged for their alleged conduct and the criminal statute(s) providing

for such criminal prosecution; and 2.) for each criminal offense identified, include accurate citations

1 (Doc. No. 112, PageID # 1665.)

to specific factual allegations in the Complaint (Doc. No. 1) that would support a finding that, by a

preponderance of the evidence, Defendant Hale and/or Davis committed the offense(s).

On December 13, 2023, Plaintiff filed his Supplemental Briefing in Support of his Motion for

Reconsideration (“Plaintiff’s Supplement”). (Doc. No. 120.) On December 15, 2023, Davis filed a

Reply to Plaintiff’s Supplement (“Davis’s Reply”). (Doc. No. 121.) Hale has never made an

appearance in this case and did not respond to Plaintiff’s Motion. Accordingly, Plaintiff’s Motion is

ripe for a decision.2

I. Background

A. Factual Allegations

The allegations concerning Plaintiff’s interactions with Davis and Hale under what Plaintiff

captioned “The Abuse: John Doe 1” are set forth in paragraphs 187 through 198 of Plaintiff’s

Complaint.3 In paragraph 188, Plaintiff alleges that in 2014, when he was 15 years old, Davis and

Hale and ShowPro Choreography (“ShowPro”) contracted with his gym to provide choreography

services to the gym’s all-star cheerleading team.4 In paragraph 189, Plaintiff alleges that during the

initial meeting, Davis, Hale and ShowPro accompanied Plaintiff and his gym owners and other minor

athletes on a day trip to Cedar Point.5 (Id.) In paragraph 190, Plaintiff alleges that in late April 2015,

Plaintiff moved to a new gym and this gym would also contract with Davis, Hale, and ShowPro for

2 Because Hale did not file an answer or otherwise respond to Plaintiff’s Complaint, this Court granted a default judgment

against him. (Doc. No. 97.) However, in its Judgment Entry and Memorandum Opinion and Order issued on August 2,

2023, the Court set aside the entry of default against Hale, and in relevant part dismissed the federal claims against him,

to include the CAVRA claim set forth in Count 1 of the Complaint. (Doc. No. 111, PageID # 1663; Doc. No. 112,

PageID#s 1636, 1662.)

3 These allegations are incorporated or set forth in this Court’s Memorandum Opinion and Order filed on August 2, 2023,

at pages 5-6. (Doc. No. 110, PageID #s 1640-41.)

4 (Doc. No 1, PageID # 37.)

5 (Id.)

choreography services.6 In paragraph 191, Plaintiff alleges that beginning in 2016, Hale and Davis

began to exchange messages with Plaintiff using an App. Plaintiff does not allege the content of

these messages, but only that they were exchanged.7

In paragraph 192, Plaintiff alleges that on or around July 28, 2016, when Plaintiff was 17

years old, Hale and Davis returned to Ohio to provide cheer training and choreography services to

Plaintiff’s former gym.8 In paragraph 193, Plaintiff alleges that during this July 2016 trip to Ohio,

Davis and Hale once again exchanged messages with him, knew Plaintiff was a minor under the age

of 18, and that Plaintiff was a USASF member athlete.9 In paragraph 194, Plaintiff alleges that

despite this knowledge, Hale and Davis pressed Plaintiff to come to their hotel room in Westlake,

Ohio.10 Plaintiff does not allege the content of these messages to Plaintiff from Davis and Hale. In

paragraph 195, Plaintiff alleges that he was hesitant and initially refused, but ultimately went to these

defendants’ hotel room and upon arrival there, learned that these defendants would soon be providing

a skills clinic for Plaintiff’s current gym.11

In paragraph 196, Plaintiff alleges that when he appeared at these defendants’ hotel, they took

him into their room, offered him liquor, which he refused, and thereafter, commenced to have sex

with Plaintiff, who was only 17 years old.12 In paragraph 197, Plaintiff alleges that according to the

6 (Id.)

7 As this Court noted in its August 2, 2023 Memorandum Opinion and Order, the claim made by Plaintiff in his Brief in

Opposition to Davis’s Motion to Dismiss that Davis “began messaging him and grooming him via cellphone” when

Plaintiff was 14 or 15 years old, is belied by the allegations in the Complaint itself which demonstrate that Plaintiff would

have been 16 or 17 at the time these messages were sent, and the lack of allegations regarding “grooming” since the

content of the messages was not alleged anywhere in the Complaint. (Id., PageID # 1649.) The Court declined to consider

this new or different allegation set forth in Plaintiff’s Brief in Opposition since he did not plead it in his Complaint. (Id.)

88 (Id.)

9 (Id.)

10 (Id., PageID # 38.)

11 (Id.)

12 (Id.)

report that he provided to law enforcement, these defendants had sex with him multiple times despite

the fact that he demonstrated his reluctance and attempted to leave.13 In paragraph 198, Plaintiff

alleges that Davis was 24, and Hale was 25.14 In paragraph 209, Plaintiff alleges that the police report

included screen shots of Hale and Davis “soliciting” Plaintiff to come to their hotel room at 1:30 in

the morning.15

Under Count 1, the Child Abuse Victims’ Rights Act of 1986 (“CAVRA”) claim asserted

against all Defendants, specifically in paragraph 258 of Plaintiff’s Complaint, Plaintiff alleges that

he was a minor at the time he was sexually abused and assaulted in contravention of 18 U.S.C. §

2422, thus constituting violations of 18 U.S.C. § 2255.16 Under Count II, the RICO civil conspiracy

claim asserted against all Defendants, specifically in paragraph 277 of Plaintiff’s Complaint, Plaintiff

alleges that all Defendants had a duty to him, a minor Plaintiff, and his family, to “mitigate allegations

related to sexual assault against children such as Plaintiff.”17 Under Count III, the gross negligence

state law claim asserted against all Defendants, specifically in paragraph 280 of Plaintiff’s Complaint,

Plaintiff alleges that all Defendants have been aware that there are risks associated with inappropriate,

and non-consensual sexual touching, emotional, and physical abuse.18 Under Count V, the

assault/battery state law claim asserted against ShowPro, Hale, and Davis, specifically in paragraphs

315 through 317 of Plaintiff’s Complaint, Plaintiff alleges that Hale and Davis committed unwanted

and nonconsensual sexual touching of him, which constituted a sexual assault and a sexual battery

13 (Id.)

14 (Id.)

15 (Id., PageID # 40.)

16 (Id., PageID # 54.)

17 (Id., PageID # 57.)

18 (Id., PageID # 62.)

and abuse committed upon him by Hale and Davis.19 Under Count XI, captioned “Respondeat

Superior as to Defendants USASF and ShowPro”, specifically in paragraph 369 of Plaintiff’s

Complaint, Plaintiff alleges that Hale and Davis committed sexual battery and non-consensual

touching.20 The only use of the word “force” in Plaintiff’s Complaint is included under Count XII,

the state law claim for intentional infliction of emotional distress asserted against all Defendants,

specifically in paragraph 375, to wit: that they “[f]ail[ed] to ensure that adult coaches and athletes

were not forcing themselves upon minor athletes; and “[f]ail[ed] to ensure that underage athletes were

not being forced into non-consensual sexual encounters with adults.21

B. The Court’s August 2, 2023 Memorandum Opinion and Order, Plaintiff’s Motion,

and the Court’s November 29, 2023 Order.

Relevant to Plaintiff’s Motion is that part of this Court’s Judgment issued on August 2, 2023

granting Davis’s Motion to Dismiss (“Davis’s Motion”). (Doc. No. 98.) In its Memorandum Opinion

and Order issued that same day, the Court acknowledged that in Count 1 of his Complaint, Plaintiff

alleged that he was a victim of abuse perpetrated by Davis and Hale in contravention of 18 U.S.C. §

2422(b), or one of the qualifying criminal statutes enumerated under 18 U.S.C. § 2255, part of

CAVRA.22 Moreover, the Court explicitly stated that “[n]o criminal conviction is necessary to

recover damages under § 2255,” citing Prewett v Weems, 749 F.3d 454, at 458; but “[r]ather, a

plaintiff need only show, by a preponderance of the evidence, that a defendant committed one of the

enumerated offenses.”23

19 (Id., PageID # 67.)

20 (Id., PageID # 77.)

21 (Id., PageID # 79.)

22 (Doc. No. 110, PageID #s 1646-47.)

23 (Id., PageID # 1647.)

As set forth in its Memorandum Opinion and Order,24 Section 2422(b) provides as follows:

(b) Whoever, using the mail or any facility or means of interstate or foreign commerce,

or within the special maritime and territorial jurisdiction of the United States

knowingly persuades, induces, entices, or coerces any individual who has not attained

the age of 18 years, to engage in prostitution or any sexual activity for which any

person can be charged with a criminal offense, or attempts to do so, shall be fined

under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2422.

In its Memorandum Opinion and Order, the Court concluded that Plaintiff had failed

to allege that Davis (or Hale) had engaged in any conduct for which Davis could have been

charged with a criminal offense associated with engaging in any sexual activity. The Court

rejected Plaintiff’s argument that Davis (or Hale) had “’alleged facts on which Defendant

could be charged with multiple offenses including kidnapping and forcible rape,’” explaining

as follows.25 First, kidnapping is not a “sexual activity for which any person could be charged

with a criminal offense.”26 Second, because Plaintiff was over 16 years old at the time of the

incident, Davis (or Hale) could not be charged with statutory rape under Ohio law.27 Third,

Ohio’s rape statute, O.R.C. § 2907.02(A)(2) requires “compel[ling] the other person to submit

by force or threat of force,” and the Complaint did not include allegations that Davis (or Hale)

used force or the threat of force to compel Plaintiff into having sex with either of them.28

And, the Court concluded that although Plaintiff claimed for the first time in his Opposition

to Davis’s Motion that Davis had begun “grooming [him] via cellphone,” the Complaint did

not include any allegations regarding the content of the messages he was alleged to have sent

24 (Id., PageID #s 1646-47.)

25 (Doc. No. 110, PageID # 1648.)

26 (Id., PageID # 1649.)

27 (Id.)

28 (Id., PageID # 1650.)

to Plaintiff during two different times in 2016, so as to support any conclusion that in those

messages Davis had attempted to or did, persuade, induce, entice, or coerce Plaintiff, (who

was under the age of 18 when they were allegedly sent), to engage in sexual activity.29

In Plaintiff’s Motion, Plaintiff asserts that “[u]nder the plain language of the

[CAVRA] statute [18 U.S.C. § 2442(b)], a violation can occur without any regard for whether

there is a conviction,” and “[t]he Court appears to have erred in interpreting this aspect of the

statute.” The Court construes this assertion as one that the Court committed an error of law.

However, contrary to Plaintiff’s assertion or interpretation of this Court’s August 2, 2023

Memorandum Opinion and Order, and as already explained by this Court in its November 29,

2023 Order,30 this Court did not conclude that a conviction is required for liability under 18

U.S.C. § 2422(b) in evaluating whether Plaintiff had alleged a predicate act for his CAVRA

claim. This Court specifically concluded that “[n]o criminal conviction is necessary to

recover damages under § 2255,” and “[r]ather, a plaintiff need only show, by a preponderance

of the evidence, that a defendant committed one of the enumerated offenses,” citing Prewett

v. Weems, 749 F.3d 454,458 (6th Cir. 2014).31 The Court then evaluated whether Plaintiff

had alleged sufficient facts to demonstrate that Davis (or Hale) committed any predicate

criminal sexual offense under § 2422, i.e., did Plaintiff allege sufficient facts to demonstrate

that Davis and Hale could be charged with the criminal offenses of kidnapping, statutory rape,

and/or forcible rape under Ohio law, and concluded that he had not.

29 (Id., PageID # 1649.)

30 (Doc. No. 119, PageID #s 1718-19.)

31 (Doc. No. 110, PageID # 1647.)

In Plaintiff’s Motion, Plaintiff next asserts that the Court should have analyzed the

CAVRA violation under the terms of 18 U.S.C. § 2422, but instead, determined that Plaintiff

had not stated a claim that these defendants violated CAVRA based solely on the fact that

they could not have been convicted of statutory rape of the minor in Ohio under the state’s

age of consent law, thus committing clear error. Plaintiff argued that Davis and Hale could

have been charged with rape pursuant to O.R.C. § 2907.02 and could have been charged with

a criminal offense under Ohio law even if the offense of statutory rape did not apply.

However, the Court’s August 2, 2023 Memorandum Opinion and Order makes clear that. the

Court not only considered and evaluated whether Plaintiff had alleged sufficient facts to

demonstrate that Davis (or Hale) could be charged with statutory rape, but also evaluated

whether Plaintiff had alleged sufficient facts to demonstrate that they could be charged with

kidnapping or forcible rape, i.e., the very criminal offenses Plaintiff specifically identified in

his Brief in Opposition, at page 10, to Davis’s Motion as having been committed by Davis

and Hale.32

In Plaintiff’s Motion, and as noted by this Court in its November 29, 2023 Order,

Plaintiff has asserted that the Complaint includes allegations that Plaintiff “refused to consent

to sex [with Defendants Davis and Hale] and repeatedly attempted to leave the room,” but

that “Hale and Davis prevented him from doing so and proceeded to have sex with him …

[even] though he told them ‘no’ many times.”33 In Plaintiff’s Motion, and as also noted by

this Court in its November 29, 2023 Order, Plaintiff cites to his Complaint to attempt to

32 (Id., PageID #s 1648-50.)

33 (Doc. No. 113, PageID # 1672.)

establish that certain allegations were set forth therein, but the Court disregarded or

misapprehended them. Among these are allegations that Davis and Hale “used their cell

phones to message him for the purposes of engaging in sex,” “engaged in coercion of the

minor, and engaged in nonconsensual and/or forcible sexual contact with a person under the

age of 18 years,” and that Plaintiff “repeatedly declined to consent to sex and . . . repeatedly

tried to leave the room, but Hale and Davis prevented him from doing so.”34 (Doc. No. 113

(citing Doc. No. 1 at ¶¶ 187-234, 253, 256).)35

However, as set forth in its November 29, 2023 Order, Plaintiff has misstated or

misrepresented the allegations in the Complaint. The paragraph that Plaintiff cites for his

assertion that he alleged that he “repeatedly” declined to consent to sex and “repeatedly”

attempted to leave the hotel room do not support this assertion; paragraph 197 of the

Complaint merely alleges that Plaintiff “demonstrated his reluctance and attempted to

leave.”36 Neither does the Complaint contain allegations that Davis or Hale “prevented”

Plaintiff from leaving or that Plaintiff told them “’no’ many times”; paragraph 195 of the

Complaint includes the allegation that Plaintiff “was hesitant and initially refused,” but when

read in conjunction with paragraph 194, can only be construed as Plaintiff “was hesitant and

initially refused” to come to the hotel;37 but this refusal to come to the hotel does not mean

that he refused “many times,” or was thereafter prevented from leaving the hotel room many

34 (Id., PageID # 1677, citing Doc. No. 1 at ¶¶ 187-234, 253, 256.)

35 The Court notes that paragraphs 187-234 specifically cited by Plaintiff for these assertions constitute the very

paragraphs that Plaintiff identified as constituting “The Abuse: John Doe 1”. (Doc. No. 1, PageID # 37.) Paragraphs

253 and 256 cited by Plaintiff do not contain any allegations associated with the interactions between Davis, Hale and

Plaintiff.

36 (Doc. No. 1, PageID # 38.)

37 (Id.)

times once he got there, or that force was used against him or that he did not ultimately

consent. And, although the Complaint includes allegations that Davis and Hale “pressed” or

“solicited” Plaintiff to come to their hotel room, it does not include allegations that they did

so for the purposes of engaging in sex and the content of the cell phone or app messages are

not set forth or described in the Complaint. The Complaint, however, does include allegations

that the subsequent police report included screen shots of Hale and Davis “soliciting” Plaintiff

to come to their hotel room at 1:30 in the morning, but having reviewed those screen shots,

Ohio law enforcement informed Plaintiff that they would not pursue charges against Hale and

Davis because Plaintiff was over 16 years old at the time of the incident.

In Plaintiff’s Motion, Plaintiff argued that the allegations in the Complaint adequately

asserted claims for “unwanted and nonconsensual” sexual touching of Plaintiff, but he did not

identify under what Ohio statutory provision(s) Davis and Hale could be charged with a sexual

activity offense for this sexual touching. Plaintiff argued that failure to correct the errors of

law he identified therein would create a manifest injustice.

Once Plaintiff’s Motion was ripe for a decision, the Court re-reviewed Plaintiff’s

Complaint, Plaintiff’s Brief in Opposition to Davis’s Motion to Dismiss, and its August 2,

2023 Memorandum Opinion and Order. Upon its re-review of Plaintiff’s Brief in Opposition,

the Court noted that Plaintiff had argued that he had “alleged facts on which Defendant Davis

could be charged with multiple offenses, including kidnapping and forcible rape.”38

Accordingly, the Court issued its November 29, 2023 Order directing Plaintiff to identify any

criminal offenses that, based upon the allegations of the Complaint, Hale and Davis could be

38 (Doc. No. 100, PageID # 1352-53.)

charged with, other than kidnapping, forcible rape, statutory rape – which it had already

considered and rejected - and directed Plaintiff to identify the allegations in the Complaint in

support thereof.

C. Plaintiff’s Supplement

In Plaintiff’s Supplement, Plaintiff asserts that “[a]ccording to the Complaint, while

in Ohio to provide Plaintiff cheering instruction, Defendant Hale and Davis solicited Plaintiff

to their hotel room, offered him alcohol which he refused, and thereafter coerced him into

having sex multiple times.”39 Plaintiff also makes note of the fact that in its November 29,

2023 Order, this Court recognized that the Complaint alleged that Plaintiff initially refused to

come to the hotel, that Plaintiff attempted to leave the room, and demonstrated reluctance to

have sex.40 Plaintiff also argues and the Court does not disagree, that “while, at trial,

Plaintiff’s burden to establish a predicate offense under § 2242 may be the preponderance of

the evidence, at the motion to dismiss stage, Plaintiff’s burden is the pleading standard under

Rule 12(b)(6).”41 Indeed, the Court set forth the pleading standard under Rule 12(b)(6) in its

August 2, 2023 Memorandum Opinion and Order.42 What Plaintiff did not do is cite to any

Ohio criminal statute other than Ohio’s rape statute, O.R.C. § 2907.02 under which Davis and

Hale could be charged with a sexual activity offense. Plaintiff reiterates his argument that

forcible rape under O.R.C. § 2907.02 qualifies under the plain language of 18 U.S.C. §

2422(b). According to Plaintiff, the Complaint contains sufficient information on which a

39 (Doc. No. 120, PageID # 1723.)

40 (Id.., PageID # 1724.)

41 (Id., PageID # 1725.)

42 (Doc.No. 110, PageID # 1644-45.)

factfinder could conclude that Hale and Davis exploited a power imbalance to coerce Plaintiff

into sexual conduct, and the question of consent, is one for the jury.

II.Standard of Review

A court may grant reconsideration if there is a clear error of law, newly discovered evidence,

an intervening change in controlling law, or to prevent manifest injustice. See Brumley v. United

Parcel Service, Inc., 909 F.3d 834, 841 (6th Cir. 2018); Gencorp, Inc. v. Am. Int’l Underwriters, 178

F.3d 804, 834 (6th Cir. 1999). “It is not the function of a motion to reconsider either to renew

arguments already considered and rejected by a court or ‘to proffer a new legal theory or new evidence

to support a prior argument when the legal theory or argument could, with due diligence have been

discovered and offered during the initial consideration of the issue.’” McConocha v. Blue Cross &

Blue Shield Mut. Of Ohio, 930 F.Supp. 1182, 1184 (N.D. Ohio 1996).43

III. Analysis

To succinctly summarize, in Plaintiff’s Motion and Supplement, Plaintiff asks this Court to

alter, amend, or reconsider its Judgment and Opinion on the bases that the Court committed errors of

law identified and discussed above that if not corrected, will result in manifest injustice. The Court

will address each of the errors of law Plaintiff alleges this Court committed.

First, as already stated and explained above, the Court did not require Plaintiff to allege a

conviction for any criminal offense, so Plaintiff’s assertion to the contrary cannot serve as a basis to

alter, amend, or reconsider its judgment dismissing his CAVRA claim against Davis (or Hale).

43 See also Gascho v. Global Fitness Holdings, LLC, 918 F.Supp.2d 708, 715 (S.D. Ohio Jan. 16, 2013) (“A motion for

reconsideration or to alter or amend is not a vehicle to reargue the case or to present evidence which should have been

raised in connection with an earlier motion.”); 11 Charles Alan Wright, Arthur Miller and Mary Kay Kane, Federal

Practice and Procedure, § 2810.1 (2d ed. 1995) (motions to alter or amend judgment cannot be used to “relitigate old

matters, or to raise arguments or present evidence that could have been raised prior to entry of judgment.”).

Second, as already stated and explained above, the Court did not determine that Plaintiff had

not stated a claim that Davis and Hale violated CAVRA based solely on the fact that they could not

have been convicted of statutory rape so as to clearly err; it determined that Plaintiff had not stated a

claim that Davis and Hale violated CAVRA because the allegations were not sufficient to demonstrate

that they could be charged with kidnapping, forcible rape, or statutory rape under Ohio law. Of

course, Plaintiff continues to assert that the allegations in his Complaint are sufficient to allege

forcible rape. It is not necessary that this Court reconsider this assertion or argument by Plaintiff, for

the reasons more fully explained below.

Again, Plaintiff did not identify any other Ohio statute under which Davis and Hale could

have been charged with a criminal offense as this Court directed him to do in its November 29, 2023

Order. The Court cited and relied upon Doe v. Epstein, 611 F.Supp.2d 1339, 1345 (S.D. Fla. 2009)

in directing Plaintiff to do so. In Epstein, the Court granted the defendant’s motion for a more definite

statement, thereby requiring the plaintiff to identify or allege with what criminal offense the defendant

could have been charged, explaining as follows:

Defendant argues that the Amended Complaint fails to set forth underlying factual

allegations as to the requisite elements that Defendant knowingly persuaded, induced,

enticed, or coerced Plaintiff, when she was under the age of 18 years, to engage in

prostitution or sexual activity for which any person can be charged with a criminal

offense. Specifically, Defendant claims that Plaintiff fails to allege with what criminal

offense Defendant could have been charged. See 18 U.S.C. § 2422(b). The Amended

Complaint states a cause of action for violation of 18 U.S.C. § 2422. However,

Defendant’s position that Plaintiff must state what part of “to engage in prostitution

or sexual activity for which any person can be charged with a criminal offense’ upon

which [Plaintiff] is relying [] is well-taken.

(Emphasis added by italics.) Id., 611 F. Supp.2d at 1345. However, the Court also acknowledged

that in Doe 1 v. Varsity Brands, LLC, 2023 WL 7222851, at *3 (D.S.C. Nov. 2, 2023) the court found

as sufficient to survive a Federal Rule 12(b)(6) motion allegations that were “somewhat sparse and

…. fail[ed] to identify the underlying statutes believed to have been violated,” and concluded that the

alleged facts, taken as true, gave rise to a “plausible inference” that the defendant violated 18 U.S.C.

§§ 2422(a). See, also, Doe v. Schneider, 2013 WL 5429229, at *6 (E.D. Pa. Sept. 30, 2013) (where

the complaint did not include or identify the criminal statutes of the three states in which sexual

activity was alleged to have taken place, namely Pennsylvania, Montana, and Massachusetts, (id.,

Case No. 2:08-cv-0385 (E.D. Pa. Aug. 29, 2008) (ECF No. 2); id, (De. 7, 2012) (ECF No. 148 at p.

16)) but the court examined them in the context of the defendant’s motion for summary judgment.)

Although Plaintiff did not identify any other statute under which Davis and Hale could have

been charged and did not in any way discuss or evaluate Epstein or Doe 1, in Plaintiff’s Motion

Plaintiff had generally cited to paragraphs 187-234 of the Complaint to reiterate or reinforce that

Davis and Hale had used cell phones to “press[]” or “solicit[]” him to come to their hotel room. Of

course, as already noted, the content of these messages is not contained anywhere in the Complaint.

And, without citation to any specific paragraphs of the Complaint, Plaintiff generally asserted that

his Complaint alleged nonconsensual sexual touching. The Court then determined that paragraphs

280, and 315-317 of the Complaint included allegations of non-consensual sexual touching set forth

to support the cause of action for sexual battery/assault.

It is in Plaintiff’s Supplement that Plaintiff focuses on the case law interpreting the

enumerated offense or qualifying criminal statute set forth in 18 U.S.C. § 2422(b) in the criminal

context only.

The elements of this offense are that a defendant (1) “use[d] the mail or any facility or means

of interstate or foreign commerce”; (2) to “knowingly persuade[], induce[], entice[], or coerce[]” or

“attempt[] to” persuade, induce entice or coerce; (3) a person who the defendant believed to be under

the age of eighteen; (4) “to engage in prostitution or any sexual activity for which any person can be

charged with a criminal offense.” United States v. Vinton, 946 F.3d 847, 852 (6th Cir. 2020), quoting

18 U.S.C. § 2422(b) citing United States v. Roman, 795 F.3d 511, 515 (6th Cir. 2015); United States

v. Douglas, 626 F.3d 161, 164 (2d Cir. 2010). Without any specific allegations associated with the

actual content of the messages Davis and Hale sent to Plaintiff via cell phones or an app, it is difficult

to evaluate or discern whether the cell phones or app were actually used to persuade or attempt to

persuade Plaintiff to come to their hotel room where, Plaintiff alleges they had sex with him multiple

times.

Plaintiff reasserts that he has alleged that Davis and Hale used their cell phones to knowingly

persuade him, then under 18 years of age, to come to their hotel room, and engage in at a minimum

non-consensual sexual touching or sexual assault/battery, for which Hale and Davis could be charged.

In United States v. Roman, 795 F.3d 511, 516 (6th Cir. 2015), cited in Plaintiff’s Supplement, in the

context of concluding that a criminal defendant violates § 2422(b) by communicating only with an

adult intermediary if the defendant’s communications with that intermediary are intended to persuade,

induce, entice, or coerce the minor child’s assent to engage in prohibited sexual activity, the Court

explained in relevant part as follows:

Congress has made a clear choice to criminalize persuasion and the attempt to

persuade, not the performance of the sexual acts themselves.” Id. As a result, the focus

always remains on the defendant's subjective intent because the statute is “designed to

protect children from the act of solicitation itself.” United States v. Hughes, 632 F.3d

956, 961 (6th Cir.2011); [United States v.] Hackworth, 483 Fed.Appx. [972] at 977.

***

“The ordinary meanings of the verbs persuade, induce, entice, and coerce demonstrate

that § 2422(b) is intended to prohibit acts that seek to transform or overcome the will

of a minor.” [United States v.] Hite, 769 F.3d [1154] at 1161 (citing dictionary

definitions). We presume that Congress gave these words their ordinary meaning

when it drafted § 2422(b), ….

United States v. Roman, 795 F.3d at 516-17.

Against this background, this Court concludes that it did commit an error of law in not

considering or construing in a light most favorable to him, Plaintiff’s allegations that he was subjected

to non-consensual sexual touching. And, although the Complaint does not include the words

persuade, induce, entice, or coerce Plaintiff, or any attempt to do so, it does include the words

“pressed” and “solicited.” Thus, the Court now concludes that the Complaint does provide a plausible

inference that Davis and Hale violated 18 U.S.C § 2422(b). Discovery should uncover the content of

the messages sent via the internet through an app or by cell phone. And, certainly Davis can later

assert any statute of limitations defense he believes he has to the state law claim for assault/battery

(Count V) (as referenced in his Motion to Dismiss, Doc. No. 98, PageID # 1173).

Accordingly, the Court GRANTS Plaintiff’s Motion to Alter or Amend Judgment (Doc. No.

112) and vacates that part of its August 2, 2023 Judgment Entry dismissing Plaintiff’s CAVRA claims

against Davis and Hale, as well as the state law claims asserted against them (Counts III, V. X, and

XII). The entry of default against Hale that this Court entered is reinstated. Davis is ordered to file

an answer to Plaintiff’s Complaint within 21 days of the date of this Order, and the Court will schedule

a Case Management Conference after Davis’s Answer has been filed.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: January 24, 2024 U. S. DISTRICT JUDGE