UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

S. Y., Plaintiff, v. Case No: 2:20-cv-118-JES-MRM

CHOICE HOTELS INTERNATIONAL, INC. and ROBERT VOCISANO, Defendants.

OPINION AND ORDER This matter comes before the Court on review of defendant Choice Hotels International, Inc.’s Motion to Dismiss Plaintiff’s Third Amended Complaint with Prejudice (Doc. #303) filed on October 8, 2020, and defendant Robert Vocisano’s Motion to Dismiss with Prejudice Plaintiff’s Third Amended Complaint and Incorporated Memorandum of Law (Doc. #304) filed on October 9, 2020. Plaintiff filed an Opposition (Doc. #317) and a Memorandum in Opposition (Doc. #318) on November 5, 2020, to which the defendants each filed a Reply (Doc. #323; Doc. #324) on November 19, 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. (Doc. #1, p. 3.) On December 31, 2019, the plaintiffs filed a First Amended Complaint which asserted ten claims against over forty defendants. (Id. pp. 2-4.) The

case was removed to federal court in February 2020. (Id. p. 2.) On April 15, 2020, the plaintiffs filed a Second Amended Complaint. (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. The operative pleading in this case is the Third Amended Complaint filed on August 19, 2020, which alleges that plaintiff S.Y., a resident of Collier County, Florida, was a victim of continuous sex trafficking at a certain Quality Inn & Suites Golf

Resort (the Quality Inn Hotel) in Naples, Florida between 2013 and February 2016. (Doc. #295, ¶¶ 2, 13, 22-24.) The Third Amended Complaint alleges that during this time period the Quality Inn Hotel was owned and operated by defendant Robert Vocisano (Vocisano) as a franchisee of defendant Choice Hotels International, Inc. (Choice). (Id. ¶¶ 25-28, 50.) The Third Amended 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. 33-49.) Counts One through Four are asserted against each defendant, while Counts Five and Six are asserted against Vocisano. (Id.) II. The motions to dismiss raise numerous arguments as to why the Third Amended Complaint as whole, and each individual claim, should be dismissed. The Court will address each of these arguments in turn. A. Shotgun Pleading The Third Amended Complaint identifies the defendants collectively as the “Quality Inn Defendants.” (Doc. #295, p. 1

introductory paragraph.) Both motions argue that because the Third Amended Complaint groups them together, it should be dismissed as a shotgun pleading. (Doc. #303, pp. 12-13; Doc. #304, p. 5.) One way in which a complaint may constitute an impermissible shotgun pleading is if it “assert[s] multiple claims against

1 The page numbers refer to those generated by the Court’s computer system upon filing (upper left-hand corner) and do not always correspond with the page number at the bottom of the document. 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 Third Amended Complaint does indeed repeatedly refer to the defendants collectively as the “Quality Inn 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 Third Amended Complaint typically (but not always) alleges that “each and every” such defendant was involved in the activity described in the particular paragraph of the Third Amended Complaint. A fair reading of the Third Amended Complaint is that each of these defendants was involved in the identified conduct attributed to the “Quality Inn Defendants.” While defendants may disagree that such allegations are accurate, that dispute is for another day. The group allegations do not fail to state a claim, Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 732–33 (11th Cir. 2020), and the Third Amended Complaint does not constitute a 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 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. 2 Both motions also argue the Third Amended Complaint is a shotgun pleading because each count impermissibly adopts allegations previously asserted in the Third Amended Complaint. (Doc. #303, pp. 11-12; Doc. #304, p. 5.) The Court disagrees. While each claim adopts allegations previously made in the Third Amended 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). 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) Plausible Allegations Re: § 1591 Violation Choice first argues that plaintiff fails to allege an underlying section 1591 violation by failing “to set out any facts describing any criminal investigation, indictment, prosecution, or conviction.” (Doc. #303, p. 15.) The Third Amended Complaint alleges: 84. From approximately 2013 through February 2016, Plaintiff S.Y. was recruited to, enticed to, solicited to, held at, harbored as captive at and/or transported to various hotels in Naples, Florida by her sex traffickers to engage in commercial sex acts at these hotels on a regular, consistent and/or repeated basis. From approximately 2013 to 2014, Plaintiff S.Y. was trafficked by an individual only known to Plaintiff as Rambo, as well as other traffickers at the Quality Inn Hotel. Then from approximately 2015 to February 2016, Plaintiff S.Y. was trafficked by Gregory Hines (aka Bowlegs), Keith Lewis and others at the Quality Inn Hotel.

(Doc. #295, ¶ 84.) There is no requirement that the sex trafficker have been convicted criminally to support a civil claim against defendants for knowingly financially benefitting from the sex trafficking, and Choice provides no legal support for this 3 argument. Choice also argues that plaintiff has not alleged coercion giving rise to an underlying violation of section 1591, asserting that plaintiff was free to meet the “John” in the lobby and she could walk the hallways without confinement. (Doc. #303, pp. 16- 17.) For purposes of § 1591, “coercion” is defined as (1) “threats of serious harm to or physical restraint against any person;” (2) “any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person”; or (3) “the abuse or threatened abuse of law or the legal process.” Id. § 1591(e)(2). “Serious harm,” in turn, is “any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing commercial sexual activity in order to avoid incurring that harm.” Id. § 1591(e)(4).

United States v. Williams, 714 F. App’x 917, 918 (11th Cir. 2017). The allegations in the Third Amended Complaint are more than conclusory with regard to the threats of serious harm or physical restraint, and do not only allege sexual abuse and prostitution.

3 The only citation is to a case where the complaint was found sufficient and plaintiff therein was able to represent that her trafficker had been indicted and sentenced. M.A. v. Wyndham Hotels & Resorts, Inc., 425 F. Supp. 3d 959, 964 (S.D. Ohio 2019). (Doc. #303, p. 17.) Some of the relevant allegations are as follows: 58. At all material times, each and every Quality Inn Defendant, as owners, operators, managers, supervisors, controllers and/or entities otherwise responsible for hotels, including the Quality Inn Hotel, knew or should have known that traffickers were harboring, raping and assaulting victims at their hotels, including the Quality Inn Hotel, and were forcing them to engage in “in call” services, wherein buyers (“Johns”) would come to the hotels solely to purchase sex from these victims, as well as “out call” services, wherein the buyer would rent a hotel room and the trafficker would deliver the victim to the buyer’s room to complete the sordid transaction.

. . .

69. Each and every Quality Inn Defendant, individually and by and through their actual or apparent agents, servants, franchisees, employees and/or staff, were aware of and/or should have been aware of a number of warning signs at their hotels, including the Quality Inn Hotel, that indicated the presence of human trafficking, including but not limited to:

a. persons showing signs of malnourishment, poor hygiene, fatigue, sleep deprivation, untreated illness, injuries, and/or unusual behavior; b. persons lacking freedom of movement or being constantly monitored; c. persons having no control over or possession of money or ID;

d. persons dressing inappropriately for their age or having lower quality clothing compared to others in their party;

e. persons requesting room or housekeeping services (additional towels, new linens, etc.), but denying hotel staff entry into the room; f. the presence of multiple computers, cell phones, pagers, credit card swipers, or other technology in the room; g. persons extending stay with few or no personal possessions in the room; h. excessive amounts of sex paraphernalia in rooms (condoms, lubricant, lotion); i. the same person reserving multiple rooms; j. a room being rented hourly, less than a day, or for an atypical extended stay; k. attempts of persons to sell items to or beg from patrons or staff; l. cars in the parking lot regularly parked backward, so the license plates are not visible; m. loitering and solicitation of male patrons; n. individuals waiting at a table or bar and then being picked up by a male (trafficker or customer); o. persons asking staff or patrons for food or money; and p. persons taking cash or receipts left on tables.

. . .

136. Plaintiff S.Y. was a hotel guest at the Quality Inn Hotel and Plaintiff was seriously and permanently injured as a direct result of each and every Quality Inn Defendants’ acts and omissions, in that each and every Quality Inn Defendant permitted, harbored and facilitated illegal sex trafficking ventures to take place at the Quality Inn Hotel whereby the Plaintiff S.Y. was routinely and continuously abused, battered, falsely imprisoned, raped, beaten, starved, forcibly injected with drugs and enslaved.

137. More specifically, at all material times, in the quest for profits, the acts and omissions of each and every Quality Inn Defendant regarding the Quality Inn Hotel caused the Plaintiff to suffer: a. Forced labor; b. Forced confinement without safe means of escape; c. Assault and fear; d. Sickness, dizziness and headaches; e. Cuts, lacerations, abrasions and other physical harm; f. Mental anguish, humiliation, exploitation, degradation and mental distress; g. Suffocation, battery and rape; h. Shock, fright and post-traumatic stress;

i. Overdose and drug-induced dangers (the Plaintiff suffered drug overdoses, drug-induced actions which caused harm to themselves [sic], physical deformities and scarfing [sic] from actions of the “Johns” and drug usage); and j. Invasion of privacy and wrongful entry of “Johns.”

(Doc. #295, ¶¶ 58, 69, 136-137.) The allegations are not “simply a regurgitation of the statutes’ wording woven together with conclusory statements and a generous use of ‘and/or.’” Kelsey v. Goldstar Est. Buyers Corp., 2014 WL 1155253, at *6 (D. Or. Mar. 21, 2014). The motion will be denied as plaintiff has stated plausible facts in support of a section 1591 violation. (b) “Participation” in a “Venture” The motions argue that the Third Amended Complaint lacks well- pled allegations that the defendants participated in a “venture,” as required by section 1595(a). (Doc. #303, p. 23; Doc. #304, pp. 6-9.) Drawing on the definition of “venture” used in the criminal portion of the statute, 18 U.S.C. § 1591(e)(6) , Vocisano asserts that a “venture” requires two or more individuals “associated in fact.” (Doc. #304, p. 6.) Borrowing from the federal RICO definition of “enterprise,” the defendants argue that “associated in fact” requires that persons must operate as a “continuing unit that functions with a common purpose.” (Doc. #303, p. 23; Doc. #304, pp. 6-7.) Vocisano continues that in the context of a TVPRA claim against a hotel operator, the Third Amended 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.” (Doc. #304, p. 7)

(citing M.A., 425 F. Supp. 3d at 970); 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)). Vocisano concludes that “a commercial transaction,” such as the rental of a hotel room, “does have not identified any controlling authority to the contrary. (c) Knowingly Benefited From Participating in Venture The motions next argue that the Third Amended Complaint insufficiently alleges the defendants knowingly benefitted from participating in a venture that committed TVPRA crimes, with knowledge of the causal relationship. (Doc. #303, pp. 17-23; Doc. #304, p. 9.) Vocisano argues that the allegation that he benefited H.H., 2019 WL 6682152, *6; M.A., 425 F. Supp. 3d at 972. Because the allegations in the Third Amended Complaint are v. State, 845 So. 2d 74, 97 (Fla. 2003)). The defendants argue that plaintiff lacks standing because personal injuries cannot be remedied by RICO. (Doc. #303, p. 28; Doc. #304, p. 16.) 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, plaintiff’s harm was caused by Choice. (Doc. #303, pp. 31-32.) Under the Florida RICO statute, a plaintiff must demonstrate that their injuries were proximately caused by the RICO violations. See Bortell v. White Mountains Ins. Grp., Ltd., 2 So. 3d 1041, 1047 (Fla. 4th DCA 2009). “A wrongful act is a proximate cause if it is a substantive factor in the sequence of responsible causation.” Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1307 (11th Cir. 2003) (marks and citation omitted). Furthermore, a plaintiff “must show a ‘direct relation between the injury asserted and the injurious conduct alleged.’” Id. (quoting motions to dismiss the claim. (3) Premise Liability Count Three of the Third Amended Complaint asserts a claim of premise liability against each defendant. (Doc. #295, p. 37.) 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. #295, ¶¶ 181-95.) Plaintiff also alleges the defendants had actual or constructive knowledge of sex trafficking occurring on the premises, that they knew or should have known the risk of such criminal conduct taking place would be unreasonably high without appropriate precautions, and that they

9 To the extent Choice argues plaintiff fails to state a plausible claim for RICO conspiracy (Doc. #303, pp. 32-33), the Court finds this issue moot. Although plaintiff uses the phrase “conducted or participated in, and/or conspired to conduct or participate in, the affairs” of the RICO enterprises (Doc. #295, ¶ 167), there does not appear to be a separate conspiracy claim within Count Two. had actual or constructive knowledge of the dangerous conditions plaintiff was in. (Id. ¶¶ 186-88.) (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. #303, p. 33; Doc. #304, p. 17.) 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 Quality Inn Hotel “from approximately 2013 and continuing through approximately February of 2016.” (Doc. #295, ¶ 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. #303, p. 33; Doc. #304, p. 17.) “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 Quality Inn 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 premises liability. (1) Choice Plaintiff met this deadline by filing her First Amended Complaint against Choice on December 31, 2019. (Doc. #3.) While

the Court determined severance of the parties was appropriate, S.Y., 476 F. Supp. 3d at 1259, and the Third Amended 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 Third Amended Complaint that the claim is time-barred, dismissal based upon the statute of limitations affirmative defense is not appropriate. For the same reasons, the Court rejects the argument that plaintiff’s negligent hiring, supervision, and retention claim against Choice is also barred by the four-year statute of

limitations. (Doc. #303, p. 33.) (2) Vocisano Vocisano was not named in the December 2019 First Amended Complaint. Rather, he was first added as a defendant in April 2020. (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 Third Amended Complaint that the claim is time-barred because the Court cannot determine that plaintiff’s premise liability claim does not relate back to the First Amended Complaint or is not subject to statutory or equitable tolling. Therefore, the motion to dismiss is denied at this stage of the proceedings.

applies to those claims as well. (b) Failure to State a Claim Both defendants argue the premise liability claim is insufficiently pled. Choice argues the claim fails because the Third Amended Complaint does not plausibly allege that Choice possessed or controlled the Quality Inn Hotel. (Doc. #303, pp. 37-38.) 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 Third Amended Complaint alleges the defendants were the “owners, operators, managers, supervisors, controllers and innkeepers” of the Quality Inn Hotel, and that Choice exercised control over the means and methods of how Vocisano conducted business at the hotel. (Doc. #295, ¶¶ 29, 11 Vocisano also suggests the negligence-based claims fail because plaintiff does not allege the specific dates upon which the acts occurred. (Doc. #304, p. 17). The Court disagrees. 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.”). 12 Attached to Choice’s motion are various records relating to the hotel property and Vocisano’s interest therein. (Doc. #303- 1, pp. 42-90.) Choice requests the Court take judicial notice of these records to prove “the undisputed fact that Choice is not the owner or operator of the Quality Inn Hotel.” (Doc. #303, p. 8.) 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 116.) While Choice may dispute these allegations, the Court must accept them as true at this stage of the proceedings and finds them sufficient to allege Choice had sufficient control of the

Quality Inn Hotel for premise liability purposes. Vocisano argues there could be no duty to protect plaintiff from the criminal conduct of third parties because such conduct was not foreseeable. (Doc. #304, pp. 17-18.) 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.

notice of facts”). First, the Third Amended Complaint clearly alleges both Choice and Vocisano were the “owners, operators, managers, supervisors, controllers and innkeepers” of the Quality Inn Hotel (Doc. #295, ¶ 29), and therefore there is a dispute as to this issue. Second, and more importantly, the Court has found the Third Amended Complaint sufficiently alleges an agency relationship between Choice and Vocisano. Accordingly, whether Vocisano or his company are listed on public records as the owner of the Quality Inn Hotel is not dispositive to any of the claims alleged against Choice in the Third Amended Complaint. Id. (marks, citations, and footnote omitted). Such knowledge must only be pled generally. Fed. R. Civ. P. 9(b). The Third Amended Complaint contains sufficient allegations

that sex trafficking was occurring at the Quality Inn Hotel and that the defendants knew or should have known of it. (Doc. #295, ¶¶ 55-61, 99-108, 159.) The Third Amended Complaint also contains sufficient allegations to support a claim of an agency relationship between Choice 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 Third Amended Complaint are sufficient to satisfy the notice pleading requirements. (4) Negligent Hiring, Supervision, and Retention Count Four of the Third Amended Complaint asserts a claim of negligent hiring, supervision, and retention against the

defendants. (Doc. #295, p. 42.) The motions seek dismissal of the claim based on pleading deficiencies. Both defendants first argue plaintiff has improperly lumped multiple claims together. (Doc. #303, p. 34; Doc. #304, p. 18.) “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 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 Third Amended 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. #295, ¶¶ 202-03.) The Third Amended 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. ¶¶ 205-07.) The Third Amended 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. ¶¶ 208-12.) The Court finds these allegations sufficient to state plausible claims for negligent hiring, and negligent supervision/retention. Both motions further argue the claim should be dismissed because the Third Amended Complaint does not identify the alleged employees at issue. (Doc. #303, p. 35; Doc. #304, p. 19.) The Third Amended 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. #295, ¶¶ 202, 206-07.) 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 employees are not required to be named. Accordingly, the Court denies the request to dismiss the negligent hiring, supervision, and retention claim. (5) Negligent Rescue Count Five of the Third Amended Complaint asserts a claim of negligent rescue against Vocisano. (Doc. #295, p. 44.) The Third Amended Complaint alleges Vocisano, as the owner and operator of the Quality Inn Hotel, had a duty to keep the premises safe and prevent foreseeable criminal activity, as well as a duty “to make vague and, to the extent they allege actual knowledge , are sufficient to state a claim. Therefore, the Court denies Vocisano’s request for dismissal. C. Anonymity Finally, Choice argues that plaintiff is not entitled to proceed anonymously as a matter of right, and that plaintiff must be required to file a formal motion to do so. (Doc. #303, pp. 39- 40.) On February 24, 2021, plaintiff filed a Motion to Proceed