A.C. v. Red Roof Inns Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

A.C., :

: Case No. 2:19-cv-4965

Plaintiff, :

: CHIEF JUDGE ALGENON L. MARBLEY

v. :

: Chief Magistrate Judge Elizabeth P. Deavers

:

RED ROOF INNS, INC., et al., :

:

Defendants. :

OPINION & ORDER

This matter is before the Court on Defendant Choice Hotels International, Inc.’s

(“Choice”) and Defendant Wyndham Hotels & Resorts, Inc.’s (“Wyndham”) Motions to Dismiss

or, alternatively, Motions to Transfer Venue.(ECF Nos.27, 29). For the following reasons,

Defendants’ Motions are hereby DENIED.

I. BACKGROUND

Plaintiff, A.C.,alleges she was trafficked in the summer of 2013at aQuality Inn Hotel

and Suites Central in Cincinnati, Ohio and aRed Roof Inn and Days Inn in Sharonville, Ohio.

(ECF No. 24at ¶¶57, 65). Plaintiff now seeks to hold these hotels liable under the Trafficking

Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. § 1595(a).

Plaintiff alleges that these hotel Defendants knew that sex trafficking occurred frequently

on their properties and failed to prevent it, and also that they knew or should have known of

A.C.’s trafficking. Plaintiff points to behavior that she alleges hotel staff should have recognized

as signs of her trafficking, including that she“repeatedly visited the hotel, entertained hordes of

different male guests, without any luggage, avoiding all eye contact, and exhibiting signs of

malnourishment while inappropriately dressed for travel and being forcibly escorted by the same

individuals.”(ECF No. 24at ¶ 88).Doe alleges that these hotels and their parent companies did

not take adequate measures to prevent human trafficking and “demonstrated willful blindness to

the rampant culture of sex trafficking” which facilitated the sex trafficking of A.C.(Id.at ¶¶

52(a)(ix), 53(a)(ix)).

II. STANDARD OF REVIEW

Defendants bring motions to dismiss Plaintiff’s complaint for failure to state a claim

under Fed.R.Civ.P.12(b)(6)or, in the alternative, move to dismiss Plaintiff’s complaint for

improper venue under Fed.R.Civ.P.12(b)(3)or transfer venue under 28 U.S.C. § 1404.

A. Venue

A complaint will be dismissed under Fed. R. Civ P. 12(b)(3) if venue is improper. Venue

is proper under 28 U.S.C. § 1391(b)in: (1) any district in which the defendant resides, if all

defendants are residents of the state; (2) a district “in which a substantial part of the events or

omissions giving rise to the claim occurred, or a substantial part of property that is the subject of

the action is situated;” or (3) if there is no other district where the action may be brought so long

as the court has personal jurisdiction over the defendant. Even if venue is proper under §

1391(b), a court may exercise its discretion to grant a motion to transfer venue under 28 U.S.C. §

1404(a) “if the transfer would further the convenience of the parties and the witnesses and be in

the interest of justice.” MJR Int'l, Inc. v. Am. Arbitration Ass'n, No. 2:06-CV-0937, 2007 WL

2781669, at *2 (S.D. Ohio Sept. 24, 2007). On a motion to transfer, “the plaintiff's choice of a

forum is entitled to considerable weight, and, consequently, the party moving for a change

ofvenuemust demonstrate that the interests served by28 U.S.C. § 1404(a) clearly favor a

change ofvenue.”Id.at *3 (citing Sun Oil Co. v. Lederle,199 F.2d 423 (6th Cir.1952)).

B. Failure to State a Claim

The Court may dismiss a cause of action under Federal Rule of Civil Procedure 12(b)(6)

for “failure to state a claim upon which relief can be granted.” Such a motion “is a test of the

plaintiff's cause of action as stated in the complaint, not a challengeto the plaintiff's factual

allegations.” Golden v. City of Columbus, 404 F.3d 950, 958–59 (6th Cir. 2005). The Court

must construe the complaint in the light most favorable to the non-moving party. Total Benefits

Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008).

If more than one inference may be drawn from an allegation, the Court must resolve the conflict

in favor of the plaintiff. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). The Court cannot

dismiss a complaint for failure to state a claim “unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitle him to relief.” Id. The

Court is not required, however, to accept as true mere legal conclusions unsupported by factual

allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Although liberal, Rule 12(b)(6) requires more than bare assertions of legal conclusions. Allard v.

Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted). Generally, 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). A complaint's factual allegations “must be enough to raise a right to

relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.

1955, 167 L. Ed. 2d 929 (2007). It must contain “enough facts to state a claim to relief that is

plausible on its face.” Id.at 570. A claim is plausible when it contains “factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678.

III. LAW & ANALYSIS

A. Venue

Defendant Choiceargues Plaintiff’s complaint should be dismissed for improper venue

or, in the alternative, transferred to the SouthernDistrict of Ohio –Western Division. (ECF No.

27 at 16-20). Wyndham also asks the Court to exercise its discretion to transfer venue tothe

Western Division. (ECF No. 29 at 4-6).

Venue is determined by 28 U.S.C. § 1391(b), which provides that a civil action may be

brought in federal district court in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the

State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving rise to

the claim occurred, or a substantial part of property that is the subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in this

section, any judicial district in which any defendant is subject to the court’s personal jurisdiction

with respect to such action.

28 U.S.C. § 1391(b). For the purposes ofvenue, an entity defendant resides “in any

judicial district in which such defendant is subject to the court’s personal jurisdiction with

respect to the civil action in question.”§ 1391(c)(2). Corporations “shall be deemed to reside in

any district in that State within which its contacts would be sufficient to subject it to personal

jurisdiction if that district were a separate State.” § 1391(d).Venue may be proper in multiple

courts.

This Court finds that venue is proper in the Southern District –Eastern Division because

Defendants’contacts would satisfy a personal jurisdiction analysis in this District. Choiceargues

venue is improper in the Eastern Divisionbecause, as franchisors, it is not possible to determine

with which divisionDefendants have the most significant contacts, and venue should thus be

determined by the division where a substantial part of events or omissions giving rise to the

claims occurred.(ECF No. 27at 17). Choice cites S.D. Ohio Civ. R. 82.1(d) which provides:

A corporation that is deemed to reside in this District pursuant to 28 U.S.C. § 1391(c) is

further deemed to reside in that county in which its principal place of business within the

District is located, or, if none, in that county with which it has themost significant

contacts. If such a corporation’s county of residence cannot be determined under this

Rule, an action against such corporation shall be filed at a location of Court determined in

accordance with the following Rules, in order of preference: (1) a county in which a

substantial part of the events or omission giving rise to the claim occurred, or a

substantial part of the property that is subject to the action is located; or (2) any location

of Court.

The Court finds venue is proper in the Eastern Divisionbecause Plaintiff’s allegations support a

finding that Defendants had sufficient minimum contacts such that it would be subject to

personal jurisdiction in this division under 28 U.S.C. § 1391(d)(establishing residency of

corporate defendants is “in any judicial district in which such defendant is subject to the court’s

personal jurisdiction”). A.C. responds that venue is proper in the Eastern Division because Red

Roof Inns, Inc. is headquartered there, and a fair amount of potential witnesses and discoverable

information will likely be located there. (ECF No. 53 at 19-20).

Finding venue proper under § 1391, this Court turns to theargument made by both

Choice and Wyndham that, even if venue is proper in the Eastern Division, this Court should

exercise its discretion to transfer the case to the Western Division. (ECF No. 27at 18-20; ECF

No. 29 at 4-6). 28 U.S.C. § 1404(a) provides: “For the convenience of parties and witnesses, in

the interest of justice, a district court may transfer a civil action to any other district or division

where it might have been brought.” In evaluatinga motion to transfer venue, a court may

considerfactors such as access to proof, witnesses’ ability to attend trial, enforceability of any

judgment rendered, and “prevent[ing] unnecessary waste of time, energy and money and to

protect witnesses and the public interest against unnecessary inconvenience and expense.” MJR

Intern., 2007 WL 2781669 at *2 (citing Rowe v. Chrysler Corp., 520 F. Supp 15 (E.D. Mich.

1981)).

Balancing these factors, this Court declines to exercise its discretion to transfer the case

to the Western Division. There is a presumption that “the plaintiff's choice of a forum is entitled

to considerable weight.” MJR Intern., 2007 WL 2781669 at *3. Defendants havenot

demonstrated that the interests “clearly favor a change of venue,” rather than being “slightly

more advantageous to the parties or the witnesses.” Id. This Court has recognized that, where

several fora are available, some inconvenience to one or more parties may exist in either forum,

and a change in venue is improper if transfer “serves merely to shift the inconvenience.” Id.

(citing Raymond E. Danto Associates, Inc. v. Arthur D. Little, Inc., 316 F. Supp. 1350 (E.D.

Mich. 1970)). “[A]generalized assertion by a defendant that witnesses reside in, and documents

are located in, the proposed transferee district, is generally insufficient to support a change of

venue.” Id. (citing Hartford Accident & Indemnity Co. v. Dalgarno Transportation, Inc., 618 F.

Supp. 1450 (S.D. Miss. 1985)). Because Defendantshavealleged only this type of generalized

inconvenience—that the alleged trafficking took place at hotel locations in the Western Division,

and therefore, relevant documents and witnesses will be located there (ECF No. 27at 19; ECF

No. 29 at 6)—and not “a specific hardship,” this Court DENIES Choice and Wyndham’s

Motions to Transfer Venue. Id.(citing AMF, Inc. v. Computer Automation, Inc., 532 F. Supp

1335 (S.D. Ohio 1982)).

B. Failure to State a Claim

Defendants Choice and Wyndham move to dismiss the complaint under Federal Rule of

Civil Procedure 12(b)(6), arguing A.C. has failed to state aclaim for civil liability under the

Trafficking Victims Protection Reauthorization Act (“TVPRA”). (ECF Nos. 27, 29).

This Court has undertaken extensive analysis of the issue of civil liability of hotel

defendants in sex trafficking cases under the TVPRAin several cases factually similar to this

one.See M.A. v. Wyndham Hotels & Resorts, Inc., No. 2:19-cv-849, 2019 WL 4929297 (S.D.

Ohio Oct. 7, 2019); H.H. v. G6 Hospitality, LLC, No. 2:19-cv-755, 2019 WL 6682152 (S.D.

Ohio Dec. 6, 2019);Doe S.W. v. Lorain-Elyria Motel, Inc., 2:19-cv-1194, 2020 WL 1244192

(S.D. Ohio Mar. 16, 2020).

Like the plaintiffs in the other related cases, A.C.brings claims under 18 U.S.C. § 1595,1

which sets forth the standard for civil liability under the TVPRA. This Court held in M.A.and

H.H. that § 1595(a) can be a standalone claim, and civil Defendants need not have committed the

underlying criminal sex trafficking offense under § 1591. M.A.,2019 WL 4929297 at *2; H.H.,

2019 WL 6682152 at *2 (citing Cong. Research Serv., R40190, The William Wilberforce

Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457): Criminal Law

Provisions, at 16 (Jan. 29, 2009) (the amendments to the TVPA “create[] civil liability both for

those who face criminal liability for their profiteering and those who do not.”); Plaintiff A v.

Schair, No. 2:11-cv-00145-WCO, 2014 U.S. Dist. LEXIS 197819, at *6 (N.D. Ga. Sept. 9, 2014)

(the 2008 amendments broadened the parties who could be sued for trafficking violations from

118 U.S.C. § 1595(a)provides: “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.”

only the perpetrator to “anyone who ‘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’”)). This Court likewise finds that A.C.’s allegation that she

is a victim of trafficking under § 1591 is enough sufficiently to plead that she is “a victim of this

chapter” pursuant to § 1595(a) in order to survive a motion to dismiss.

The requirements for liability under § 1595(a) on a “beneficiary” theory can be stated as

follows: (1) the person or entity must “knowingly benefit[], financially or by receiving anything

of value,” (2) from participating in a venture, (3) that the “person knew or should have known

has engaged in an act in violation of this chapter.” 18 U.S.C. § 1595(a).

1. Knowing benefit

Defendants contend that they did not knowingly benefit financially from the sex

trafficking venture.Wyndham argues any benefits from an “indirect franchising relationship” are

not sufficient to support the claim that it knowingly benefited from the venture. (ECF No. 29 at

10).Choice likewise suggests that the “simple transfer of funds under a preexisting franchise

agreement are not those contemplated under the statute.” (ECF No. 27at 9).Its argument is

grounded in speculative concerns about opening the floodgates for other kinds of corporate

liability, but is untethered to the statutory language itself. Section1595(a) does not impose an

actual knowledge requirement. The first element merely requires that Defendant knowingly

receive a financial benefit,not that the perpetrator have actual knowledge of thesex trafficking

venture. As this Court found in M.A.andH.H., “the rental of a room constitutes a financial

benefit from a relationship with the trafficker sufficient to meet this element of the § 1595(a)

standard.” M.A.,2019 WL 4929297 at *3; H.H., 2019 WL 6682152 at *2. See alsoGilbert v.

United States Olympic Committee, No. 18-cv-00981-CMA-MEH, 2019 WL 4727636, at *16 (D.

Colo. Sept. 27, 2019) (finding the forced labor provision of § 1589(b) does not “require[] the

party to benefit from the [forced] labor or services for liability to attach”).

2. Knew or should have known the venture was engaged in trafficking

A defendant cannot be liable under 18 U.S.C. § 1595(a) unless it “knew or should have

known” that the venture was engaged in sex trafficking. Defendant Wyndham argues Plaintiff

fails to meet this element because she has not alleged Wyndham was specifically “aware of or

interacted with Plaintiff or her alleged trafficker” or that it “took deliberate steps to avoid

confirming that Plaintiff was being trafficked.” (ECF No. 29 at 12). Choice makes similar

arguments that sound of actual knowledge, arguing “Plaintiff has failed to allege that Choice

ever dealt with the Plaintiff herself.” (ECF No. 27 at 11). However, as this Court held in M.A.

and H.H., the plain text of § 1595(a) makes clear that the standard under this section is a

negligence standard of constructive knowledge, not actual knowledge. M.A., 2019 WL 4929297

at *7; H.H., 2019 WL 6682152 at *3.

Plaintiffs allegations against Defendants include the following:

e ‘For months A.C. was forced to live with her trafficker and his wife at the Quality Inn®

Hotel and Suites Central located at 4747 Montgomery Road, Cincinnati, OH 45212 in the

Norwood area of Cincinnati.” (ECF No. 24 at § 57).

e “Over the summer of 2013, A.C.’s trafficker forced her to service approximately five

clients per day at the Quality Inn® Hotel and Suites Central, each of whom entered and

exited the room and the hotel as an unannounced guest. Sometimes, A.C. served as many

15-20 clients in just one day.” (ECF No. 24 at 4] 58).

e “A.C.’s trafficker paid cash for the room in which they lived for those summer months

and it was a common practice at the Quality Inn® Hotel and Suites Central that the entire

top floor was reserved for and inhabited by pimps and the women they were trafficking

for commercial sex. These sex traffickers were allowed to stay at the hotel unreported as

long as each pimp paid an extra fee to the front desk.” (ECF No. 24 at 59).

e Plaintiff “observed some of the same hotels staff repeatedly,” “was routinely escorted by

her traffickers in view of the front desk after her trafficker paid in cash for the rooms,”

and “appeared overtly malnourished and withdrawn” (ECF No. 24 at [| 61-63).

e “A.C. was also forced to service clients for days at the Red Roof Inn® located at 2301 E

Sharon Road and the Days Inn@® located at 11775 Lebanon Road, in Sharonville, OH

45241.” (ECF No. 24 at { 65).

e “In the summer of 2013, the police were called to the Red Roof Inn® in Sharonville due

to noise complaints made by other guests as A.C. was being brutally beaten by her

trafficker. Several witnesses came forward and told the responding officers and hotel

staff that A.C. had been beaten. However, A.C. and her trafficker were allowed to remain

in the hotel.” (ECF No. 24 at § 70).

e Defendants “profited from the sex trafficking of A.C. and knowingly or negligently aided

and engaged with her trafficker in his sex trafficking venture.” (ECF No. 24 at J 84).

e Defendants knowingly or negligently facilitated A.C.’s sex trafficking by ignoring the

fact that “A.C. repeatedly visited the hotel, entertained hordes of different male guests,

without any luggage, avoiding all eye contact, and exhibiting signs of malnourishment

while inappropriately dressed for travel and being forcibly escorted by the same

individuals.” (ECF No. 24 at J] 87-88).

This Court must decide whether these allegations are sufficient to state a claim that

Defendants knew or should have known the venture was engaged in sex trafficking. This Court

10

finds Plaintiff’s allegations are sufficient to allege constructive knowledge. As this Court

previously noted,“[s]everal courts have found failure to implement policies sufficient to combat

a known problem in one’s operations can rise to the level of willful blindness or negligence.”

M.A.,2019 WL 4929297 at *6(citing Brown v. Corr. Corp. of Am., 603 F.Supp.2d 73, 81

(D.D.C. Mar. 26, 2009) (finding that complaint stated sufficient allegations under § 1983, based

on willful blindness, where defendants knew that a supervisor at a correctional facility raped his

employee, sexual harassment at the facility “was not an isolated incident,” and defendants failed

“to implement and effectuate the appropriate policies . . . to remedy and/or prevent the

discriminatory conduct, sexual abuse and sexual harassment and rape”); Trollinger v. Tyson

Foods, Inc., 2007 WL 1574275, at *12 (E.D. Tenn. May 29, 2007) (finding that a “willful

blindness policy” could be sufficient to show a RICO violation)). Here, A.C.has alleged that

Defendants were on notice about the prevalence of sex trafficking generally at their hotels and

failed to take adequate steps to train staff in order to prevent its occurrence. She also alleges facts

specific to her own sex trafficking, including a number of signs she alleges should have alerted

staff to her situation.These allegations are sufficient to meet the negligence standard in § 1595

for purposes of surviving a 12(b)(6) Motion to Dismiss.

3. Participation in a venture

The last element requires the Court to decide whether Plaintiff alleged sufficient facts

that show Defendants’ conduct constituted “participation in venture” under §1595(a). A.C.’s

trafficker had a sex trafficking venture. The question is whether the Defendant hotels were

participating in that venture through “leas[ing] rooms to A.C.’s traffickers, when they knew, or

should have known, that the room was being used to imprison A.C., physically assault her, and

subject her to repeated exploitation.”(ECF No. 24 at ¶ 84).

Defendant Choice argues Plaintiff has not alleged any otheract in furtherance of the sex

trafficking, and thus her claims are insufficient to show participation.(ECF No. 27at 8).

Wyndham likewise argues that it cannot be liable under the TVPRA because it did not share a

common purpose with the alleged trafficker. (ECF No. 29 at 9-10). Plaintiff argues that

Defendants inappropriately rely on § 1591 and criminal cases like United States v. Afyare, 632 F.

App’x 272 (6th Cir. 2016), which differ from civil liability under § 1595.As this Court

explained in M.Aand H.H., Plaintiff’s interpretation best comports with the plain text of § 1595.

Section 1595 includes a constructive knowledge requirement, and “applying the definition of

‘participation in a venture’ provided for in § 1591(e) to the requirements under § 1595 would

void the ‘known or should have known’ language of § 1595.” M.A.,2019 WL 4929297 at *7;

H.H., 2019 WL 6682152 at *4.See alsoJean-Charles v. Perlitz, 937 F.Supp.2d 276, 288–89 (D.

Conn. 2013) (finding liability under § 1595 can attach when an individual participates in a

venture that is not specifically a sex trafficking venture and participation is not direct

participation in the sex trafficking).

This Court therefore found that “participation” under § 1595 does not require actual

knowledge of participation in the sex trafficking itself. The Court must then examine whether

there was “participation in a venture” here. Plaintiff’s theory here is that the defendants

“enabled, harbored, held, facilitated, and financially benefited from a sex trafficking venture in

which A.C. was trafficked for the purpose of commercial sex.” (ECF No. 24at ¶ 8). A.C.alleges

that the Defendants “participated in this illegal endeavor by knowingly or negligently providing

lodging to those who purchased sex from A.C. in which to harbor A.C. in furtherance of her

being trafficked for commercial sex.” (Id. at ¶ 89). In the absence of a direct association,

Plaintiff must allege at least a showing of 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. See, e.g.,In re

Polyurethane Foam Antitrust Litigation, 152 F. Supp. 3d 968, 983 (N.D. Ohio 2015) (citing In re

Baby Food Antitrust Litig., 166 F.3d 112, 126 (3d Cir. 1999) (acknowledging that price-fixing

can be shown be tacit agreement); McGuire v. Lewis, No. 1:12-cv-986, 2014 WL 1276168, at *6

(finding allegations sufficient “to identify the individuals alleged to have conspired, to plausibly

suggest some joint action among the individuals, and to explain how the purported joint action

led to the alleged deprivation of [plaintiff’s] rights. In particular, they plausibly show a tacit

agreement . . . .”). This requirement also comports with a principle implied in Ricchio. There,

the First Circuit found sufficient allegations that, among other things, the trafficker and hotel

owner had prior dealings. Ricchio v. McLean, 853 F.3d 553, 555 (1st Cir. 2017).

Plaintiff argues that Defendants “profited from the sex trafficking of A.C. and knowingly

or negligently aided and engaged with her trafficker in his sex trafficking venture.” (ECF No. 24

at ¶ 84).Defendants need not have actual knowledge of the sex trafficking in order to have

participated in the sex trafficking venture for civil liability under the TVPRA, otherwise the

“should haveknown” language in § 1595(a) would be meaningless. 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 were engaged in sex

trafficking. These acts and omissions by Defendants, A.C.alleges, facilitated the sex trafficking

venture.

4. Vicarious Liability

Defendants Choice and Wyndham contend they do not own, operate, manage, or control

the hotels at which Plaintiff was allegedly trafficked. (ECF No. 27 at 8; ECF No. 29 at 9).They

claim they have no power over the operations at the individual franchise locations and therefore

cannot be held vicariously liable for any alleged negligence of a franchisee. (ECF No. 27 at 13;

ECF No. 29 at 14).

As this Court observed in M.A.,“[i]t is a long-standing principle of law in Ohio that ‘[a]

principal is chargeable with the knowledge of, or notice to, his agent that is received by the agent

in the due course of the agent's employment and is related to the matters within the agent's

authority.’” 2019 WL 4929297 at *9 (quoting Liggett v. Chesapeake Energy Corp., 591 F.

App’x 305, 309 (6th Cir. 2014)). In determining whether there is an agency relationship, the

question is how much the agent “retained control, or the right to control, the mode and manner of

doing the work contracted for.” Beddia v. Goodin, 957 F.2d 254, 257 (6th Cir. 1992) (quoting

Councell v. Douglas, 163 Ohio St. 292, 126 N.E.2d 597, 599 (1955)). A.C. alleges Wyndham

and Choicecontrolled the business operations, training, management, supervision,

administration, and procedures of thefranchise locations where she was trafficked. (ECF No. 24

at ¶¶52(a)(vi), 53(a)(vi)). She alleges an agency relationship was created between the individual

hotels and the franchisor Defendants through profit sharing, standardized training methods,

safety protocols, and reporting procedures. (Id.). These allegations are sufficient to meet the

pleading standards of Rule 8.

Similar to the agency relationship inquiry, whether two employers are a joint employer

often turns on how much control one exercises over the other. See, e.g., Int’l Longshoremen’s

Ass’n, AFL-CIO, Local Union No. 1937 v. Norfolk Southern Corp., 927 F.2d 900, 902 (6th Cir.

1991) (quoting Metropolitan Detroit Bricklayers Dist. Council v. J.E. Hoetger & Co., 672 F.2d

580, 584 (6th Cir. 1982)) (articulating test for joint employer status under the NLRA as “the

interrelation of operations between the companies, common management, centralized control of

labor relations, and common ownership.”); Sanford v. Main Street Baptist Church Manor, Inc.,

327 F. App’x 587, 594 (6th Cir. 2009) (quoting United States EEOC v. Custom Companies, Case

Nos. 02 C 3768, 03 C 2293, 2007 WL 734395, at *5-8, 2007 U.S. Dist. LEXIS 16691, at *15—24

(N.D.IIl. March 8, 2007)) (adopting the test for Title VI joint employer status: “(1) the extent of

the employer's control and supervision over the worker, including directions on scheduling and

performance of work; (2) the kind of occupation and nature of skill required, including whether

skills are obtained in the work place; (3) responsibility for the costs of operation, such as

equipment, supplies, fees, licenses, workplace, and maintenance of operations; (4) method and

form of payment and benefits; and (5) length of job commitment and/or expectations.”). The

Sixth Circuit has recognized the employer control theory and the agency theory are “essentially

the same.” Satterfield v. Tennessee, 295 F.3d 611, 618 n.6 (6th Cir. 2002). Although A.C. has

not alleged additional facts specific to the joint employer allegation, her facts supporting an

agency relationship could plausibly show some element of control to establish joint employer

status. Therefore, her allegations meet the pleading standard for the same reasons as above.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motions to Dismiss are hereby DENIED.

IT IS SO ORDERED.

Le lk ARBLEY

CHIEF UNITED STATES DISTRICT JUDGE

DATE: June 16, 2020

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